In a much significant ruling, the Bombay High Court held that the Enforcement Directorate ( ED ) cannot record statement at night by depriving person’s right to sleep.
By the writ petition preferred under Article 226 of the Constitution of India, the petitioner sought the substantive relief to pass necessary orders and directions thereby declaring the arrest to be illegal and quashing the order granting remand, dated 08.08.2023 passed by the Special PMLA Court Mumbai, Maharashtra.
The counsel for the petitioner submitted that the petitioner’s arrest and consequential remand was illegal and as such, the petitioner be released forthwith and that the petitioner not having been produced before the Special Court within 24 hours of his arrest as mandated in law, makes the petitioner’s arrest illegal.
It was submitted that although the petitioner objected to his remand, since his arrest was illegal, before the Special Judge and also pleaded that he was not produced within 24 hours from the time of his arrest, the Special Judge failed to consider the same and accordingly, allowed the remand application filed by the respondent-Enforcement Directorate ( ED ) and remanded the petitioner to custody till 10.08.2023.
The P.P submitted that the calculation of 24 hours period would have to be computed from 5:30 a.m. on 08.08.2023 i.e. at the time of arrest till the petitioner was produced before the Special Judge on 08.08.2023 at 5:00 p.m. According to the counsel, the submission of the counsel for the petitioner that the period would have to be computed from the time the petitioner entered the office of the ED i.e. on 07.08.2023 at 11:00 a.m, is far-fetched, inasmuch as, the petitioner was not detained at any point of time by the respondent-ED and the petitioner was allowed to move freely.
A Division Bench of Justices Manjusha Deshpande and Revati Mohite Dere observed that “A person summoned under Section 50 of the PMLA, should have his statement necessarily recorded during earthly hours, as the investigating agency is yet to arrive at a `reason to believe’ that the said person is guilty of an offence punishable under this Act. The `right to sleep’ / ‘right to blink’ is a basic human requirement, inasmuch as, non-providing of the same, violates a person’s human rights. It affects a person’s health, may impair his mental faculties, cognitive skills and so on. The said person, so summoned, cannot be deprived of his basic human right i.e. right to sleep, by the agency, beyond a reasonable time.”
“We deprecate the manner in which the petitioner’s statement was recorded so late in the night which went on post midnight, till 3:30 a.m. It is pertinent to note and as contended by the learned Spl. P.P, when a person is summoned under Section 50 of the PMLA, the person is `not an accused’, and that the said person could well be a witness or a person who is associated or has knowledge about the offence being investigated” the Court noted.
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