Period of restraint by ED for interrogation under PMLA counts as arrest: Chhattisgarh High Court

While granting bail to a man arrested under the Prevention of Money Laundering Act (PMLA), the Chhattisgarh High Court on Wednesday held that the period undergone under detention for interrogation counts as period of arrest prior to being produced before a magistrate. [Subhash Sharma v. Directorate of Enforcement].After being informed by the Enforcement Directorate (ED) that the accused was produced before a court within 24 hours of being arrested, Justice Rajani Dubey remarked that his detention prior to the arrest counted as arrest itself. The order stated,"The High Court of Bombay rightly observed that "detention in custody for interrogation" is unknown to law. Interrogation is known. A person may be lawfully interrogated but during such interrogation he is a free man. If he is detained, not allowed to leave the office of the respondent and compelled to eat and sleep there, he is under detention. This restraint is in reality an arrest...".The Court was hearing the bail application of one Subhash Kumar who was detained at Delhi Airport on behalf of the ED by the Immigration Bureau in connection with a crime registered against him under Sections 3 and 4 of the PMLA..Advocate Rahul Tyagi for the applicant contended that a Look Out Circular (LOC) was issued against his client in an arbitrary and malafide exercise of power by the ED. He elaborated that LOCs are required to be issued when a person is avoiding warrants or trial in a criminal case, and claimed that no warrant was issued against the applicant and neither was he avoiding trial.According to him, the applicant was detained illegally and was not produced before a court within 24 hours of his arrest, and therefore, his arrest was illegal and unconstitutional.Stating that the applicant was not likely to abscond or tamper with evidence, he prayed for bail..On the other hand, Advocate Saurabh Kumar Pandey for the ED opposed the application and said that economic offences are a class apart and need to be visited with a different approach in bail matters.He claimed that the applicant was arrested on March 5, 2022 and produced before a court on March 6, well within 24 hours of his arrest.He further contended that the question of grant of bail held no relevance as proceedings under the PMLA, a special enactment, contemplate a distinct procedure.Moreover, he claimed that since the applicant was an influential person, there was every likelihood that on getting bail, he would tamper with the evidence, influence witnesses, or even abscond. Therefore, he prayed for rejection of the bail application..Justice Dubey noted that the applicant was detained on March 4, 2022 and produced before a court two days later. "From the order sheets of the trial Court as well as the documents in the case diary, it is clear that the applicant is not produced before the competent Court within 24 hours of his detention," it recorded.It went on to note,"The investigating agency could have easily produced the applicant herein before the competent court at Delhi itself and asked for transit remand but they detained the applicant and brought him to Raipur where the arrest memo was prepared."Given that the trial in the case was at a preliminary stage, and that documents suggested that it would take a long time to conclude, the Court released the applicant on bail, subject to certain conditions..[Read Order]