It is openly discuss at every nook and corner the arbitrary and some unconstitutional provisions of law which are in built in the Money laundering laws which are seen to be taken place at various States of our Nation. Recently Delhi Chief Minister Arvind Kejriwal came to be arrested by Enforcement Directorate in Money Laundering case, though his battery of lawyers attempted to get the bail in the remand period but unfortunately his bail issue is not focused and remand custody of the Kejriwal was extended for 6 days and thereafter his Counsel may press for regular bail.
Be that it may be, now I would like to discuss the issue of bail raised in the matter of arrest of Chagan Chandrakant Bhujbal then PWD Minister of State of Maharashtra, when Bhujbal was arrested under money laundering case under PMLA Act on 14.03.2016 thereafter his battery of lawyers attempted to make bail applications before the Special PMLA Court and before the High Court but his Bail applications were rejected.
And thereafter when Bhujbal got the proper legal advise in the matter of his illegal arrest under money laundering act (PMLA Act) he decided to file Writ Petition (WP) of Hebeous Corpus (Illegal Arrest of the person by the State/Centre Police) and accordingly he filed Writ Petition (Crime) 3931 of 2016 and in the said Petition he raised the legal issue of “As he has been arrested illegally by the office of Enforcement Directorate and the ED officials had not given him any legal grounds of his arrest when he was arrested on 14.3.2016 and thereafter the said Petition came to heard by the then Division Bench presided by Smt. Shalini Phansalkar Joshi, J and Shri. Ranjit More J on 14.12.2016 and the said judgment/order was delivered by Justice Shalini Phansalkar with the discussion of section 19 (1) of the PMLA act as the provisions discussed of the rights of bail of the person under the the said law, the legislature had mentioned that accused is having right to know the grounds of his arrest and hence the grounds of the arrest has to informed to the person accused “as soon as may be” but the Hon’ble High Court, Bombay while deciding the bail issue and illegal custody of the Chagan Bhujbal, Court interpreted the law that Legislature in the law of section 19 (1) of PMLA Act had not mentioned that the accused person after their arrest immediately need to be informed the grounds of the arrest and also also not mentioned the grounds of the arrest to be intimated to the accused person at the time of his/her arrest. So the High Court of Bombay not found any illegality and unconstitutionality in the provisions of 19 ( 1 ) of the PMLA act which is the section of bail. And thereafter the Petition of illegal arrest and release on bail of Chagan Bhujbal came to an end. I am relying upon the said case law which is of Chagan Bhujbal Versus Union of India decided on 14.12.2016 by the High Court Bombay after his arrest on 14.3.2016.
Then on the same point of right of the accused person who is arrested by the officials of ED without giving grounds of the arrest came to be discussed before the Supreme Court in the matter of Pankaj Bansal Versus Union of India before the Bench of Justice Shri. Sanjay Kumar and Justice Shri. A. S. Bopanna on 3.10.2023 and then their Lordship decided the issue of the said virus in section 19 (1 ) of the PMLA money laundering case in the matter of bail of the accused person and legally discussed the issue and held that the prosecution of ED, Police need to be given grounds of arrest to the accused person immediately, forthwith and the ED officials would not have any safeguard that the grounds of the arrest can be supplied after the arrest as per their Choice and wishes. The Very judgment of the Supreme Court delivered by the their Lordship Justice is now quite clear that non informing the grounds of the arrest at the time of arrest of the person is genuine grounds to seek bail of the accused as the fundamental rights of the person are violated and hence the Supreme Court had given sigh of relief to the person who are illegally arrested by the ED officials.
Supreme Court also taken the note of the Judgment of Division Bench of the Bombay High Court which was delivered by the Lordship Justice Smt. Shalini Phansalkar and Justice Shri. More on 14.12.2016 in the matter of Illegal Arrest of Chagan Bhujbal as the said Judgment is DOES NOT HOLD THE CORRECT LAW and Supreme Court discussed that the law discussed by the High Court is contrary to the law and Upheld that Prosecution ED, Police forthwith need to give Grounds of Arrest to the accused person forthwith and also protect the fundamental rights of the person as guaranteed by the Constitution of India.
Common people can think that as Chagan Bhujbal when he was arrested on 14.3.2016 and as he preferred his Writ Petition for release on bail of illegal arrest before High Court Bombay in December 2016 and then his petition came to be rejected by the High Court on 14.12.2016 as stated above and not considered the illegal arrest of the Bhujbal, and then came the Judgment of the Supreme Court passed on 03.10.2023 of illegal arrest of the accused of not providing grounds of arrest immediately which is a right of bail of the accused as the order of the Supreme Court overruled the Judgement of the Bombay High Court as the Supreme Court hold the law hold in said case of Chagan Bhujbal case is not a correct law. If that it may be in that event Chagan Bhujbal could have released on bail on 14.12.2016 but not so lucky that the judgement of the Supreme Court came to delivered on 03.10.2023. Any way meanwhile Chagan Bhujbal preferred regular bail application and High Court then granted him bail as the order was passed the Lordship Justice Shri. P. N. Deshmukh.
Chagan Bhujbal was in prison for 26 months and if he could have press his right of bail in the context of Supreme Court Judgment he could have spent only 8 months in Jail and would have exercise his fundamental right in proper spirit.
This is the law of money laundering which creates grave confusion in the minds of the public as in 2005 the said law was amended and per the section 45 of PMLA act states that all the offences under the PMLA act are made Non Cognizable whereas in the principal law of 2002 section 45 is worded as the ‘offences to be cognizable and non-bailable. So mostly all the money laundering cases are built on the basis of IPC offences like cheating, misappropriation of funds etc. as the said offences are called Scheduled offences which having punishment of 10 years and whereas the PMLA act is having minimum punishment of 3 years to 7 years. Persons get easy bail in IPC offence but denied bail PMLA act in routine manner. We need to discuss the law of PMLA act as the urgent subject of National Debate then only illegal arrest of the citizen can be avoided.
Issued for the public interest by Ad. Anil Bugde
