The Delhi High Court dismissed the plea by the Enforcement Directorate (ED) challenging interim bail to Singapore businessman in the case of Embraer Aircraft Deal.
It is the case of the department that during course of investigation in the aforesaid ECIR, summons was issued to the respondent under Section 50(2) and 50(3) of the Prevention of Money Laundering Act, 2002 (PMLA) on various dates to join the investigation, however, he did not appear. To secure his presence, on an application moved by the department, open ended bailable warrants were issued by Naresh Kumar Malhotra, Special Judge.
It is the case of the petitioner that on completion of investigation, a complaint was filed against 11 persons including the present respondent under Section 44 for the PMLA for commission of offences punishable under Section 4 of the PMLA.
The Special Counsel for the ED, submitted that since the non-bailable warrants issued vide order dated 12.01.2018 were never cancelled, it cannot be deemed to have been lapsed upon filing of a complaint before the Special Court. It was submitted that it is the case of the department that the said non-bailable warrants remained in force and, therefore, the execution of the same by arresting the present respondent was within permissible parameters of the procedure, as envisaged in law.
In essence, the argument on behalf of the department is that in the present case, despite the complaint having been filed and cognizance being taken, further investigation was continuing and the non-bailable warrants issued by the Special Court were in operation and since the respondent was arrested by way of executing the said non-bailable warrants, his arrest, therefore, would be deemed to be one during the course of further investigation.
It was submitted by the Counsel for the respondent that inadvertence or a mistake on the part of the investigating agency cannot be a ground to curtail liberty of an accused person. It was submitted that even in the application seeking issuance of nonbailable warrants filed by the department, nothing was placed on record to show that the summons issued by the department were ever served upon the present respondent.
It was argued that nothing was placed on record before the Special Court to demonstrate that the summons sent for the purpose of investigation were served and not complied with by the respondent intentionally
A Single Bench of Justice Amit Sharma comprising observed that “If the unexecuted non-bailable warrants issued prior to filing of the complaint had been duly returned to the Court, could the department have arrested the respondent when only summons for appearance had been issued? The department, after issuance of summons, in such a case, could not have arrested the respondent unless warrants were issued by the learned Special Court on requisite grounds. The exercise of power of arrest by the department was totally unjustifiable. The respondent was produced before the learned Special Court in terms of Section 73(3) of the CrPC and not under Section 19 of the PMLA, as per their own application.”
“Special Counsel is right in his contention that the respondent, even if he presents himself in pursuance of the summons issued by the Special Court, would have to be granted bail as per the provisions of PMLA. This Court has been informed that an application for regular bail has been filed by the present respondent which is pending before the Special Court.” The Court concluded.
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