Virbhadra Singh v. Assistant Director, Enforcement Directorate

12. On the basis of facts-an^ mat"erials....gathered during such preliminary enquiry,- FirstInfoimationfipprt(FIR)No.RC-AC-1- 2015-A0004 was registered-=onu''23:§9r2015 ^^-<''061,.ACB, New Delhiforinv&ti^Wioninto-otences'pimisilableun&r^Section 13(2) ''' j'' n i n readwithS||ction13(l)(e)c^^^^^^^incethefa^son^hebasis of which CBI had taken up myestigatdon from the perspective of offences pukishable under P.(SC Actcalso appeared to be indicative of commission of the-qffenc^;^qf- money I'ahndermg punishable \ \ Jf fF'"' V _,l4a4V / 4.N — ^ under PMLA,the'ma.tteLwas referred by the fomer.agency to the Headquarter Investigation!, the ' Directorate of Enforcement of the Depaifmeni-of:Revenue in the Ministry of Finance, Govt. of India, New Delhi where, pursuant to the said communication,the ECIR in question was registered on 27.10.2015 for action underthe provisions ofPMLA.

13. The allegations forming the basis ofthe investigation through the ECIR have been set out in the counter-affidavits by the respondents referring, in brief, to the role of various individuals J -..y Lawan Kumar Roach,Vakamulla Chandrashekar and Ram Prakash Bhatia and certain others, besides the petitioners before this court, the narration statedly revealing that in order to project the disproportionate assets as untainted they have knowingly indulged in certain transactions of money laundering. The allegations are summarized thus: (a) Shri Virbhadra Singh was Minister of Steel from 28.05.2009 to 18.01.2011 and Minister of Micro Small and Medium Enterprises;(MSME)~froi^l[9].01.2011 to 26.06.2012 in Govt. of Mdia-.-.Huge/cash-'defrosts were,made in Bank S ^. I. ^ Accounts S&i Anand Gnaunan, an LIC^'agents maintained with Punjafr-National"Baidcm Bank; bbtliTocated at Saiyauii,'^imla durir^fi^ft^^ 2009-12."The 'said cash f... u. deposits were utilized foi pufGhasmg LIC policies in me name H f Jw i'fe-M IT i U f M' ^ tA!K h 'I of ShriA/'irbhadra Singh-'arid-meinbers ofhis family,for a sum V -''A.!i<A ff. ofRs.5;14,87,2^l,. (b) In the wake ofeassessment proceedmgs intitiated by the 'V -"cx V, ".4. A s H ^ ^ > Income Tax authorities against ShriAnand-Chauhan,allegedly as a cover-up to justify fhe^"source of money utilized for purchase of LIC policies, Shri Virbhadra Singh(HUE)filed, on 02-03-2012,revised returns ofincome for three years they being the AssessmentYears(AY)2009-10,2010-11 and 2011-

12. (c)Theincome tax retums(ITR)originally filed for the abovementioned AssessmentYears(i.e.2009-10,2010-11 and 2011-,.y'' Rs.7,35,000/- Rs.15,00,000/- and Rs.25,00,000/- respectively. In the revised returns, the income from agriculture was declared to be to the tune ofRs.2,21,35,000/-,Rs.2,80,92,500/and Rs.1,55,00,000/- respectively. Thus,by the revised returns of the income for the said three Assessment Years, the total income from agriculture initially declared to be Rs.47.35 lacs stood increased to Rs.6.56 crores.

(d) During the course of investigation, reliance has been placed by Shri VirbhadrC'S^ingh arid'others on a Memorandum ofUnderstanding, dated ll.i6l20(]^8 whereby he(Shri Virbhadra,Singh) is statePto^have entmsted"unto the said Anand^/Chauhan, an"\ilfc?^7^gept^^ the respbrisibility of management of Shri^hnd/7Qr(?hard at Village WDamrali, I' /'. 1 '.)! M Rampur Bushar and for proceedsTrom the sale ofap^jles to be invested in LIC policies.Jit i'sJstated that the investigation conducted thusfar/has,fevealed thatjthe said MOU prepared on four sheetSsOf.paper.(stamp papers^^pne nomjudicial and tne other three judicial, alf-of2d,08|;was ante-dated. The entry at

┌─────────────────────────────────────────────────────────────────────────────────┐
│         serial no.1284 dated"" 11.06..2008~ In-the register of the stamp        │
│         vendor respecting one of the said four stamp papers in the              │
│         name of Anand Chauhan was forged. Similarly, the entry nos.             │
│         1283 and 1284 in the register of the stamp vendor would                 │
│         reveal corresponding sale of original stamp papers to have              │
│         been made to one Laiq Ram, a resident of Kotkhai, Shimla                │
│         who utilized the same for obtaining agricultural loans.                 │
│                                                                 2016:DHC:9061   │
│ (e)     The petitioner Shri Chunni Lai Chauhan, has been                        │
└─────────────────────────────────────────────────────────────────────────────────┘

1.[1] fake bank account. MajonVentries were given/-to Shri Vakamulla Chandrashdkafd^y^companies-of Sh. Ram Prakash Bhatia. Ve. Jai Durgd ImpexV Prakash'Fd^ Foods & Shiva Store. Sliri Vakamulla obtained fake sale proceed invoices of agricultural products sold to Sh. Ram Prakash Bhatia. (h) It is stated that the amounts invested in twelve LIC policies were out oflaundered money.Five ofthe LIC policies were prematurely surrendered, and the proceeds deposited in the account of Vikramaditya Singh. According to the respondents,the evidence gathered shows thatthe unaccounted Hp

(i) A Provisional Attachment order No.1/16 dated 23.03.2016 was issued under second proviso of Section 5(1) of PMLA attaching movable and immovable assets valued at Rs.7,93,21,984/- of Shri Virbhadra Singh and his family members. This included a immovable property at Greater Kailash in name of Smt. Pratibha Singh. The Adjudicating Authority,PMLA has confirmed the said attachment. (j) An amount of Rs.90 lakhs from out of Rs.2.[4] crores alleged loan given„tp Shri Virbhadra.Singh was utilized by Shri Vikramaditya->Sih:gh"tb'^purchhse-;a farm,house at Dera Mandi, New DMhi infhe*^^M his cornpany,M/s. Maple i*, » Destination^& DreaSi&i|%&feW?for the^purchase ofthe said (arni'^iiouse. Ari^^^^^^p'lakhs was'paid^by two Cheques of Rs.l[5] lakh fealch""given by a firm M/s. Jai Durga I K.. Impex|which has statedlyplbeeii^Kfound to be indulging in A ^ >1- ff providing accommodation,entries., ^,,/ ^ J ' \X <\ /y

14. It is the case pf^the petitioners that the mvestigation carried out by CBI in the above-mbMioned"case'under-POC Act, and the present investigation under PMLA-," are actuated by political motives and founded on false allegations and averments. The petitioners themselves referred to the previous proceedings in the courts primarilycommencing with WritPetition(Civil)No.4063 of 2015, filed on 29.09.2015, before the High Court of Himachal Pradesh in the wake ofsearch and seizure operation conducted by CBI on 26.09.2015 wherein "interim protection" was granted to WN first case). The said writ petition was transferred from the High Court of Himachal Pradesh to this court, in terms of order dated 05.11.2015, by the Supreme Court of India on Transfer Petition (Crl.) No.425 of2015 and appears to have been registered in this court as Writ Petition(Civil)No.2757/2015. The said writ petition ^ came up before a leamed Single Judge ofthis Court on 06.04.2016 I when directions were given to the petitioners to join investigation, though taking note ofthe assurance held out earlier that they would not be arrested when they so appear=before the investigating agency at that Stage.. '.

15. It appears that m responseTo The summons iuider PMLA a V <' 'v\ issued to Shri Wirbhadra,jSingh ^aihd:,Smt. Prdtiblia aSingh on 16.11.2015,'/by a^"reply dated^SOHT.20i'5'^ request was made to CBI for copies;of documents seized:durink the searches to:be made h r^iHpUf. • available sqThat the same couldb'd^provided to the resj^'ondent in ^ the context '■'of investigation iinder TIMLA./^Go^esponiiingly, on 02.12.2015, when-|heVrepresentative of Shri VirBhadra Singh and Smt. Pratibha Singh appearedbefore-the'^Enfofcement Directorate, extended time for providingThe (documents was granted. On the other hand, the representative of the respondent, in the course of proceedings before the Adjudicating Authority under Section 17(4), had sought liberty of retention of the documents and properties seized. Against this backdrop, the first petitioner filed W.P.(Crl.) No.3107/2015 before this Court which was disposed of by order dated07.01.2016 with direction for copy ofECIR to be supplied.

16. On 23.03.2016, the Adjudicating Authority under PMLA passed Provisional Attachment order No.01/2016 under Section 5 PMLA against the petitioners and certain others, on the reference made for such action on the basis primarily of above-noted facts, circumstances and materials. The said Provisional Attachment Order was challenged by Shri Virbhadra Singh and Smt. Pratibha Singh by Writ Petition (Civil) No.4228/2016. Similarly, Shri Vikramaditya Singh and Ms. Aparajita Kumari have also assailed the adjudication proceedings resulting in provisional attachment by W.P.(Civil)No.3008y2016.^Bpth the said^writ petitions are pending in this court andinterinl"orders grmting somC'protection have been issued. ^JS' \

17. It m^*^d added t^^^S^^'the submissions of the respondents, another Provisid|iM|AtfaGhment order No.l/|017 was U filPft I passed by the competent ^uthdli^-iqn\31.03.2017 under Section // 5(1)PMLA m respectofth'dffarm house.afDeTa^Mandi atMehrauli. The legality and validityrof the said provisional-attachment order has been challenged by another-W.P.(Givil)iNo.3909/2017 which is also pending in this court.^~ - -' 18; When the petitions at hand came up for hearing, questions were raised initially as to the overlap ofthe contentions urged and the prayers made in the above-mentioed three other pending writ petitions,they also having been filed by the petitioners, they being Writ Petition (Civil) No.4228/2016, Writ Petition (Civil) No.3008/2016 and Writ Petition (Civil) No.3909/2017. It was for the petitioners that the challenge in the said other writ petitions is from the perspective ofthe application primarily of Section 5 of PMLA which is distinct from the investigative process taken up under the ECIR as is statedly intended by the respondents to lead to criminal prosecution, possibly ofthe petitioners, for offence under Section 4 ofPMLA,the questions raised in the present proceedings being entirely distinct.

19. Shri Picheswar Gadde, in his pleadings, refers to certain assessment proceedings of,2014-2015"byjthe^ authorities under the Income Tax Act and WealtL'^.Tax'-Act, 1957'leading, inter alia, to writ proceedings taken out"in This;,court in' suchx context, his contention also bbing that the gagging pfhis name'in the present ' " ' ^ ''.y > l\ case under investigation iiitov'suspected offence under PMLA I allegedly cpmmitted by the^ pthe|^'^petitioners is motivated, the '' I {' r[1] li '' design being to coerce him intgr-'makiiig,false statements. /•' 'A' I ^ \ /:/

20. The docuhSerit'inthe nature ofEnfo'rcemeht Case Information Report(ECIR) is concqdedly^ not'prescribed by law contained in PMLA or rules framed there under.The respondents,however,seek to refer to it as"an internal document ofDirectorate ofEnforcement for proper identification of a particular case". It was submitted at the hearing that this document is official report ofthe Enforcement Directorate setting the process ofinvestigation underthe speciallaw into motion. From this perspective, it appears, though not so described explicitly or required under the law,to be akin to a First MC respecting a cognizable offence under Section 154 Cr.P.C.or a noncognizable offence under Section 155 Cr.P.C.

21. Forthe present,itonlyneedsto be noted thatPMLA deals,as criminal law, with a new offence thereby provided, it being the "offence ofMoney-Laundering",defined by Section 3as under W Offence of money-laundering. - Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected (proceeds of crime including its concealment,possession,.acquisition or use andprojecting or claiming) fias untaintedproperty shall beguilty ofqfjencelqfmoney-laundering. >

22. The piferige of r^bhey-launiie^riiigt defmdd'nin'''Section 3 n it-J! kBAMmtA'imiiihmi, quoted abqVe, if proved committed Teads to punishment)which is provideJpb^l^ection 4, the trial!for such purposes toVbe held in the cputtidtSessions which is designated,in % ji terms of Section 43 PMLA,-.as-a Special-'Court, the/procedure thereof being -he'^lated^- generally by.tlie^-'Corde, 'of Criminal '■ W' Procedure, 1973 'XCLP,Ci)J:^a|J;jpe[5],^^^ with certain improvements or modifications in.terms' of Sections 44 and 45 PMLA, the remedies in the nature of appeal and revision being guided by Section 47. As would be discussed at length later, the conjoint effect of Sections 44 and 45 PMLA is that the Special Court is empowered to take cognizance of the offence under Section 3 PMLA without the accused being committed to the said court for trial but this is conditional upon a complaint in writing authorized in this behalf,such authority, as would eventually have the competence in law to institute a criminal complaint seeking prosecution, also having been authorized and conferred with the jurisdiction and requisite power to undertake the investigation into the offence of money laundering, the police officers having been specially excluded from such role unless there is a specific authorization by general or special order to that effect. It also needs to be flagged here that the law confers, by Section 19 PMLA,on the Director(or some other^fmietionaries,specified in the provision) the power to arrest a:ny personlhf& the basis-of material in his possessionthereisreasonto belieyepihatsuchpe;sqnis,guiltyofthe offence ofmdriey-launderirig^ ^

23. Thes|petitions were'friedjhisj^^^ a number of contentions but have been pressed primarily on^the)submission that thjoffence ^ " I ^ l| of money-laundering, defined dfr Sfection 3 and made punishable under Section 4 PMEA,;,dsj%{;"nqnTCOgnizable offence" and, therefore,there qannofbe an investigation.undeitaken.without there being an order of a pourt'Tcqmpq^^^ such case authorizing such investigation. It is the"corit^tion ofthe petitioners that since the Special Court under PMLA cannot take cognizance, except upon a complaint in writing by the authority specified in the law, there being no complaint submitted till date, adoption of"coercive measures" under PMLA, merely on the basis of ECIR, was not permissible in law, it being designed to circumvent the complaint procedure mandatorily required to be followed for Section 45. It has been argued that the general law contained in the Code of proceedings in the Special Court under PMLA, or investigative process anterior thereto, and in absence offormal authorization by the Special Court vis-a-vis a particular person,the authdrities under PMLA cannot proceed to cause arrest without warrant. The submission,in nutshell,essentially is thatthe respondents under the purported exercise ofcarrying outinvestigation ofthe offence under PMLA have no power to issue summons,or to eompel appearanee so as to record statement or the petitioners, as has been insisted upon by the impugned processes; the obligation of the petitioners thereunder being contingent onlylupon.^cognizance being taken by the Special Court. \ ^ ^

24. The submissions of the-petitioners fo above'effect.,primarily arise from amendment ofthe Prevoritidri'ofMoney-Laundering Act, •I I| 2002 by the Prevention of Money-ilaundering(Amendmpt)Act, 4 111 aI M 2005(Act 20 of2005), particfdarly^'of-the provision contained in Section 45. Prior to the*said amendment Sectfon 45(l)(a)declared # > V \ * 1' i ^ ^ that every offence punishable under the'law^'(PMLA) "shall be cognizable". The amendment^ of ^00.5'brought'in force w.e.f. 01.07.2005 deleted the siad~clause-of Section 45(1) declaring the offence, inter alia, of money laundering, to be eognizable. The prime submission of the petitioners is that this amendment was clearly indicative ofthe intention ofthe legislature to take away the power of arrest and consequently to make the offence of moneylaundering"non-cognizable".

25. Arguing thatthe intention ofthe proceedingstaken outbythe ka\ the due procedure of law founded, as it were, on a document (ECIR)notcontemplated bythe statute,the curtailmentofthe rights and liberty ofthe petitioners being impermissible except through due process established bylaw and in line with the spirit ofArticle 21 of the Constitution of India, the reliefs as noted earlier are pressed for.

26. Per contra,it is the submission ofthe respondents that these petitions, brought at early stages of the investigation by the authorities under P]VlLA,,aEe abuse ofthejudicial process,designed to stall the probe and to^defeatihcbbjeGtives/oCthet.speciallaw and, therefore, deserve oltright rejeptioii.i)It-has beehV^nbnijtted that the authorities unher tlfe PML'X,'jepre'sehte^1)y the respondents, have embarked ■/updh the investi^tip^ri..^/bearing in mind the circumspection within which.;theyj^'are; expected under the law to '.'t ^ i' j.'. conduct themselves and that ""^he\'v arguments questioning the \1 „ Ik.. \.....:// investigative) process;are') miscpiiceived,,there being- no legal T '-X so) '-i'"-" '?'■ 'k.''/, " c f requirement of authorization from the Special Gojuf tobe taken as a condition precedent, the qqestioning-of^the validity of ECIR being premature, the role of the~SpefiiaECourt to' take over the criminal actionupon cognizance being taken in the event of complaint being filed. It is the submission of the respondents that the offence of money laundering continues to be a cognizable offence, even after amendment of 2005, the only change thereby brought about being the clarity that police officers cannot, unless specially authorized for such purposes, cause an investigation into the offences under PMLA nor have the power to arrest any person for such offence, the statute under Section 19. Taking this submission further,it was argued that there is no requirement for the statutory authorities under PMLA to take prior permission from the Special Court for taking up an investigation. It was submitted that the intention ofthe petitioners by raising these contentions is primarily to evade the legal action envisaged underPMLA.

CRIMINAL LAW

27. The general criminal law in our country is codified, the Indian Penal Code, 1860 (IPC) providing primarily the offences, commission of which isVproscribed andf'iT'tommitted, attracts the punishments thereby'provided,Tbe mqcedure for-bririging to book the offenders being laid doi^ elaT^orafely in the Code of Criminal."L.;\ Procedure,11973 (Cr.P.C.). "Thefsubstahtive law (IPC) deals with I I fit [I n major crirhes including offence'against human body, joffences V\ "'i 4\s'\ i. against the property, offences against the State, offences against \\ - 'ih /-'-f-xv. 7'' public peace and tranquilityj offences related Id marriage, etc. The ft procedural law ^(Cr.P.C.) lays down,extehsiN(e and elaborate provisions covering almosT'the ^ entire spectrum of the action required to be taken right fromThe"stage'of reporting of a crime through the process ofinvestigation leading to trial,ifthe offender and the evidence supporting the accusations against him have been found, till the stage of his guilt (or innocence) being determined with consequences, inter alia, in the form of punishment,flowing therefrom besides,ofcourse, the remedies in the nature ofrevision or appeal and post-conviction processes. Having regard to the nature ofoffences specified in the generallaw(IPC),the procedural V law(Cr.P.C.)is designecl generally with the thought that the crime would ordinarily be repbrted to, and taken note of by, the police which, given the nature of offence would embark upon investigation - either within its own jurisdiction under the law or with appropriate authorization by the competent criminal court. Further, keeping in view their nature and effect on the individual victim or the society at large or, to put it simply, bearing in mind the gravity, the offenceS;are also categorized so as to regulate the power of(or amenability to)arrest,as indeed the right(ifany)to be released on bail, with or without conditions,and^the circumspection within which the investigating police officer would be obliged to conduct, or continue, with the investigation (particularly, postarrest). Some offences, having regard to the gravity (e.g., culpable homicide), when committed,, have a deep impact on the general feeling of well-being in the society'at large, in addition to the serious repercussions they have on the victim and his kin. In contrast, some offences affect primarily the individual victim (e.g. in the offence ofcheating),he being, at times,open to forgive and forget, inclined to bury the hatchet if suitable amends were to be made. From these perspectives, the offences under IPC are classified variously; cognizance or non-cognizable;bailable or nonbailable;compoundable br non-compoundable,etc,

28. Underthe general procedurallaw(Cr.P.C.),the police is duty bound to initiate action, in the event of information related to commission of a cogniziable offence being made to it in terms of Section 154 Cr.P.C. The police registers the First Information investigation which must eventually culminate in report under Section 173 Cr.P.C. being submitted. Ifthe information about the cognizable offence is substantiated bythe evidence gathered during investigation, such report under Section 173 Cr.P.C. may possibly take the shape ofa charge sheet wherein the persons who arefound to have committed the offence are properly identified and brought before the court with thefequestfor they to be tried. Conversely,if the information reported under Section 154 Cr.P.C. is found to be false,or ifevidence were not to be forthcoming,or ifthe offenders cannot possibly be identified or traced, such report under Section 173 Cr.P.C. may take the shape ofa cancellation report or a closure report, as the case may be; - Need it be added that, the Magistrate, before whom such report under,Secfion 173 Cr;P.C..is to be submitted (it being the court ofcogniizance under the general law), '' 'I I'y ill C|If'' is not boun^ by the conclusions reached by the police in its report under Section 173 Cr.P.C. AILcourse are open to the Magistrate (the court of cognizance). He may take cognizance in exercise of his power under Section 190(1)(b)Cr.P.C.and issue process under Section 204 Cr.P.C. against the persons mentioned in the police report, or against others, if the evidence submitted by the police justifies such action to be taken. The Magistrate may approve the report and cancel or close the case. Or,the magistrate may record reasons for notbeing satisfied with the investigation carried outand issue necessary directions including for further investigation, [see Chandra Babu v. State,(2015) 8 SCC 774; Moti Lai Songara v. Prem Prakash(2013)9 SCC 199;Dharmatma Singh v. Harminder N 5zAar(2010)9 SCC 479; Minu Kumari v. State ofBihar(2006)4 see 359; Gangadhar Janardan Mhatre v. State ofMaharashtra (2004) 7 see 768; Jagdish Ram v. State ofRajasthan (2004)4 see 432; State ofOrissa v. HabWullah Khan(2003)12 See 129; State ofMaharashtra v. Sharadchandra Vinayak Dongre(1995) 1 see 42; H.S. Bains V State (1980) 4 See 631; Abhinandan Jha V.Dinesh Mishra(1967)3 SeR668:AIR 1968 Se 117]

29. But, the above is the procedure, generally speaking, in relation to the cognizablejsdffen^es"(say,""thpse provided in IPe) where there are no restrictions to^taking of cggiiizance, including such as those provided in the provision§^confained irikSection 195 (Prosecutionrfor cohtenipt%flawffll® ofpublic servants for I TMbmrnm ifr r.P.e:,7.Sectionk1'97 (Prosecution of Judges and 7r fete.. offences alaihst public justice"^i'^d Tor offences relating to documents{given in evidenceJJCrlPlCySection 196(Prosecution for f HII lift. I offences against the State andlj0r|cnminal conspiracy t|commit such offencl) Cr. Public Servants)Cr.P^G;fete.

30. The procedure for dealing wi®||^fen-cognizable offences under the general criminal law-is-distinct'from that of cognizable offences. Such offences (non-cognizable) may or may not be reported to the police.Ifinformation ofa non-cognizable offence is given to the police it is required by Section 155 Cr.P.C.to register the same in the manner prescribed,the informant(who may or may notbethe victims)being referred to the Magistrate. Section 155(2) Cr.P.C., in clear terms, prohibits investigation itito non-cognizable offence by a police officer unless there is an order ofa magistrate having the power to try or commit such case for trial. Section 155 (3)Cr.P.C.,however, makes it clear that ifsuch direction were to be given to a police officer(by a magistrate)forinvestigation into a non-cognizable offence, he would exercise all such power and jurisdiction as would vestin him in law while causing investigation into a cognizable offence, except, and this is to be marked, the power to arrest without warrant.

31. The occasion for a magistrate to issue directions for investigation into a non-cognizable offence would generally not arise unless a complaint alleging such offence were to be laid before him. The expression "complaint"is defined by Section 2(d)Cr.P.C. thus: \ '■•'T "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an. offence, but doesg not include apolicereport. ij

32. It is clear from the above^said definition that a complaint need not be in writing. It may be oral but, as the procedure discussed hereinafter would show, it must eventually be formally recorded in writing by the Magistrate. The action on a criminal complaint is taken by the magistrate (as specified in law) by first taking cognizance under Section 190(l)(a) Cr.P.C., provided the conditions requisite for initiation of suchproceedings (as envisaged, generally speaking, in the provisions contained in Sections 195 to Section 199 Cr.P.C.) are inposition, by examining the complainant certain specified category of cases, illustratively complaint lodged by a public servant acting or purporting to act in discharge of his official duty. The Magistrate, having taken cognizance on a complaint, and having proceeded to examine the complainant and such ofhis witnesses as are immediately present under Section 200 Cr.P.C., is generally deemed to have embarked upon a presummoning enquiry which is similar to the investigative process by the police post-registration of FIR in cognizance offences. The Magistrate, if he finds sufficientsevidence to have come on record during pre-summoning inquiry,;mayjproceeddoTssue process under Section 204 Cr.P.C.^ to"call upondhe accused-Tq faceThe trial. In contrast, if tlfe facts andlciMiimstahce's or nature of the case so requires,h^naypostponeth^^^feofpmcessandcarry further inquiry (pie-summoning) wlil:fe|ypuld be under Section 202 1 n III Cr.P.C.In lertain fact-situation^'such'forther inquiry undeif Section 202 Cr.P.C.iis mandatory.. Be that asit,may, it is at tfe stage of such further inquiry;under Sectibh''2'62 Cr.P.Q.^that th^e Magistrate would have the possil^le occasion-toTssue a direction to the police for carrying out an investigatum-into an nbh-cognizable offence under Section 155(2)Cr.P.C.

33. Even the general criminal law (substantive or procedural) envisages criminal action being initiated not only by the police but also by a complaint,asindeed by acomplaintorinformationlodged by a person other than a police officer. The simple illustration of the last mentioned category would be a complaint by a public servant respecting offence relating to contempt oflawful authority in evidence(Section 195 Cr.P.C.)This last category is covered by the provision contained in Section 190 (1)(c) Cr.P.C. - "own knowledge" ofthe Magistrate being an additional facet ofthe said provision - upon which a competent Magistrate "may take cognizance ofany offence". MEANING OF"COGNIZABLE OFFENCE"- GENERALLAW

34. The expressions "cognizance" and "cognizable offence" are distinct from each other. While the word "cognizable", qualifying the word "offence", relates'tp the,classification in which the latter \? I' ' T il. \ f would fall, the;expression ""cognizance" is defined to mean "jurisdiction" of 'Ttie exercise^'of,iiirisdiction" or\"power to try and determine causd^k [see Blapk's La^'*T)ictionary]J^^Ihi. common parlance, it simply meari's},v;"fakingv'notice of. The word h' ' 1 V • r "cognizance" is generally applied'^ with reference to the-act of a illI Mil, court taking judicial notice^'of\a fact-or cause and, therefore, is is. plislflli expressed in-..the terms,"talcin'gicognizaaice". The judicial act of "taking cognizance!' denotes^"judicial appli'cafiori oj|jmind" and, in the context ofcriminal law;this expressiori has come to be used or applied at the stage when the'investigative (or inquiry) process is complete and the matteris broughtbefore a Magistrate for initiation of judicial proceedings against the person respecting whose complicity in the alleged crimeprimafacie case is made out on the basis of evidence gathered. The expression, noticeably, occurs prominently in Section 204 Cr.P.C. leading to an opinion being formed as to whether "there is sufficient ground for proceeding" CREF Finance Ltd. Vs. Shree Shanthi Homes(F)Ltd., (2005) 7 sec 467, the "taking of cognizance" is not to be confused with issuance ofprocess". The cognizance is taken ofthe offence and not ofthe offender.

35. The focus of discussion here is not on "taking cognizance" but on "cognizable" character ofan offence.

36. It is commonly understood that if an offence is classified in law as "cognizable", it means a police officer has a right to arrest the person responsible for such offence without the need of obtaining a warrant. AslHe following discussion would demonstrate this common understanding ori'shall;we^"say,assumptionsis based on A ^ sr vy the conjoint/reading ofthe'^defiinitipnof.the expression "'cognizable ti I, 4-U^"/V0 ' \'s offence" and the provision ihVthe''G;pde ofCriminal Procedure,1973 1' i, IA %_ J;. relating to powers ofpolice to>mak®aiiTest, as they stood fill a few years ago. \ -i. ^-p ^.. t U _ fl- \ i-A _.■/ 4 ' '^4.! XK 'r i!

37. The general procedurali% (Cr.P.C.O defines-the,expressions \ x> ■i' ^ ^ ^ ^ ^ "cognizable offenpe";^and "non-cognizable offence"; as indeed the cases involving such offences; by/"Section 2('c) dnd Section 2(1) as under: "(c) "cognizable offence" means an offencefor which, and "cognizable case" means a case in which, apolice officer may, in accordance with the First Schedule or under any other lawfor the time being inforce, arrest without warrant; (I) "non-cognizable offence" means an offence for which, and "non-cognizable case" means a case in which, apolice officer has no authority to arrest without

38. The definition ofthe expression "cognizable offence" refers one to the First Schedule appended to the Code of Criminal Procedure, 1973 (Cr.P.C.), its caption "Classification of Offences" being indicative ofits purpose. The First Schedule,it is ofimport here, is in two parts,the first relating to offences under the Indian Penal Code(for short,"the IPC offences")and the second relating to offences against other laws (say, "special law offences"). The fourth column of the tabulationz_in^cates in the first part (IPC offences)as to which offences are'cdgnizable or non cognizable,the - 'V-,;•>. ^ if ^ fifth and sixth columh'indica-tingv^its nature;(bailable or nonbailable) and the court by^which'^a/particular offence isXto be tried respectively!"The second p^^XSpepi^'Law Offences) of the first schedule to'Cr.P.C. is general dn mature. It could not conceivably {j n refer to the!offences by the namWjprjUdbel given to each ofthem by d '.1'\"j>- ' f( the law. Therefore, it refers to<;theIfl^by the gravity seen from the perspective o5fthe,punisKmend'prescnbed under thpapplicable law. Such special law^offences are put-in three categories, the one of leastgravity being those puhishable-with imprisonmentforlessthan three years or with fine, all such least grave special law offences having been classified as "non-cognizable","bailable", and triable by "any Magistrate". Noticeably, all special law offences which attractimprisonment more than three years,divided furtherinto two categories, are classified as "cognizable" and "non-bailable". To complete the narration, it may be added that such special law offences as attract punishment of death, imprisonment for life or si ' ! a court of sessions, the remaining being triable by a Magistrate of the First Class.

39. Though the Code ofCriminalProcedure,1973 was conceived as the general procedural law for dealing with general penal offences,it is intended to regulate the action under the criminal law not merely for purpose ofIPC offences but also vis-a-vis other laws (Special Laws). This is declared,in no uncertain terms,not only by such references in various provisions of Cr.P.C., including under Section 2(c)quoted above,.-bufprimarily<by Section 4 which reads thus! ' ' ^ ^ ^ "4. TrialofoffencesSmaer-meThdia^ ^sde and Other lawsr- (1) ''AfloffencefUnder the I^d^iiff'enal Code!{45'of1860) sHaJl;bt:)nf^stigated, in^ffred into, tried;' and otherwisf)dealt'^wdh according t& the 'x' ^ ^ > A *e -ST l provisions hereinafter c6hfdihed.\;i I( \ 'I yuL j* _ _ (2)Alloffences underpnfdtJierlaw shall be investigated, inquired into, tried, and ptheifvise dealt with according to the%qme provision, but'subject to dnfepactmentfor the timi^eiiigijfforce'regulating the mapheror'place of investigahhg}inquiring into, trying or otherwise dealing with such offences/'^ 'j

40. It is trite that the Code ofCriminal Procedure, 1973 regulates the procedure for the investigation,inquiry or trial not only ofthe IPC offences but also of special law offences but, in the case of latter(the Special Law Offences)application ofCr.P.C. provisions is subject to specific provisions, (if any), of such special law relating to,inter alia, the procedure for investigation,inquiry,trial or otherwise dealing with offencethereby created. To putitsimply, forum for purposes of its trial but also a special procedure for investigation thereinto, or the authorities vested with the power or jurisdiction to deal with such processes and, further, the nature of such speciallaw offences(cognizable or non-cognizable,bailable or non-bailable, etc.). Illustrations on the subject are far too many to be of any doubt on this score; Official Secrets Act, 1923; Prevention ofFood Adulteration Act, 1954(since replaced by Food Safety and Standards Act,2006);the Customs Act, 1962; Narcotics Drugs and Psychotropic Substances-Act, 1985; Prevention of.. Vj.- Corruption Act, 1988; Ivlaharashtra' Control of>Organized Crime Act, 1999; Preyention of Terrorisni-Act, 2002;and-Protection of Children from'Sexual Offences Act,i'i01'2;te^c. Section 2(c)Cr.P.C., as extracted,above,it is pertinWt''fo:nigMight,therefore,refers not II merely to tiie First Schedule ofCr.P.'ij!; but also,ifneed Be,to the i'l \ 1 ^,[1] • provisions of "other law" for detemining if the offence:is to be construed as^cognizable"or.otherwfse.y';' {■ ~\ "-.vyv.H k >'s,I i., '.t- u.'.\ni v'" ' 4^ W

41. What, howeyer,"needs to marked for furtherdiscussion is the fact the defmitions'of both cognizable offence, or non-cognizable offence, refer to the power orJurisdiction' of a police officer "to arrest without warrant" to be the crucial test. The provisions relating to the action expected to be undertaken by the police, upon informationrelating to a crime reachingits notice (the startingpoint being the lodging of the FIR whether under Section 154 or under Section 155 Cr.P.C.) do not control the meaning or import of the expressions "cognizable" or "non-cognizable". They only guide further action in law. From the generalperspective of Cr.P.C., thus, warrant, the offence would be treated as "cognizable" and, if not, the offence would be a "non-cognizable" one,the procedure being regulated accordingly.

42. The general procedural law (Cr.P.C.) makes detailed provisions in Chapter V,relating to "arrest ofpersons",and aside from certain specific(or special)fact-situations leading to the arrest (e.g. on account ofrefusal to give name or residence under Section 42), the very first provision in that Chapter, Section 41, being of import, it indicating the^,9asef^6fTSS2situation(s) wherein a police officer "may arrest'-^with^1:>%'affant".^CCne^provrsm^ needs to be quoted in exte^so ■'(as.it presently 'S(ands post-amendment brought into effect "41. jlVhenpolice may^af/eYtfyvithb warrant.—(l)\^Any poUcL officer may witHputfdpfpYderfrom a Magistrate andwithout a warrant j U y'f:£lA Tm.'xs. u (a) who commits, in thepresence of apolice officer, a cognizable offence; (b) againsf%p'hoM^^ reasonable^^eofn^dint Has been made, or cf&Mi^^^otM^beeh^/dived, or a reasonable sufpijciohtafe^tsfd thdfJ^H'd'MHs committed a cognizable offencefffrpislhd&^mifHHmprisonmentfor a term which may be less than seven years or which may extend to sevenyears whether with or withoutfine, ifthe followingconditions are satisfied, namely:—

(i) the police officer has reason to believe on the basis ofsuch complaint, information, or suspicion thatsuchperson has committed the saidoffence;

(ii) the police office is satisfied that such arrest is necessary—

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with thefacts ofthe case so as to dissuade himfrom disclosing suchfacts to the Courtor to thepolice officer; or (e)as unlesssuchperson is arrested, hispresence in the Court whenever required cannot be ensured, B li 5 3 0 S 6 and thepolice officershallrecord while makingsuch arrest, his reasons in writing: Provided that a police officer shall, in all cases where the arrest ofa person is not required under the provisions of this sub-section, record the reasons in writingfor not making the arrest. (ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonmentfor a term which may extend to more than seven years whether with or withoutfine or with death sentence and the police officer has reason to believe on the basis of that information thatsuch person has committed the said offence;

(c) who has been proclaimed as an offender either under this Code or by order of the State Government;or

(d) in whose possession anything isfound which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference tosuch thing;or \ (e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape,from lawfulcustody;or (f)who is reasonablysuspectedofbeinga deserterfrom any ofthe ArmedForces ofthe Union;or (g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, ofhis having been c' oncerned in, any act committed at any place out ofIndia which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India;or (h) who, being a released convict, commits a breach of any rule made under sub-section (5)ofSection 356; or (i)for whose arrest any requisition, whether written or oral, has been receivedfrom another police officer, provided that the requisition specifies the person to be arrested and the offence or other causefor which the arrestis to be made and itappears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition. (2) Subject to the provisions of Section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrantor order ofa Magistrate."

43. It is clear from bare reading ofthe various clauses ofSection 41 quoted above that, even under the general law,a police officer has no blanket power orjurisdiction to arrest a person only because such offence (here, the IPC offence) is classified by the First V by clauses(c)to (i)of Section 41(1) are not ofroutine nature and, therefore,would not assistin the present discussion. The first clause (a) of Section 41(1) also deals with a special circumstance where cognizable offence is committed "in the presence of a police officer". Thus,the remaining two clauses of Section 41(1)provide better guidance in comprehending the intention of the legislature. Broadly put, the offences have been placed in two categories, one those attracting punishment with imprisonment which may be less than seven years and the other-which may attract sentence more severe than that(extending uptp^the sentence of death). It is in the latter category alone,\covered bw,Section 41 (•T)(ba),that the police officer has virtually a cleair(unrestricted|^ower to.airest provided, of course, he^^has "reason^'^&^^i^|Jon the basis'of{"credible information" aboutthe complldt|^^Tim^ crimes oflesser gravity, those covered by Section4lti)(|));Hiri\.contrast,the police officer does not have a blanket powfer^bf:.arfestr In p,tder to pause arrest without warrantinsuch cases,he mustputon recordThe'satisfaction about the necessary"^criteria^having beenimet;which includes not only credible information aboutcomplicity but also the need to do so for preventing commission of further offences or for proper investigation or for preventing tampering with or destruction of evidence or influencing ofwitnesses or to ensure thatthe person in question is broughttojustice.

44. It needs to be remembered that the provision contained in Section 4I(l)(a)Cr.P.C. originally conferred a very wide power on the police officer giving him authority in law to arrest a person the commission ofa cognizable offence. Thelaw was amended by the Code ofCriminal Procedure(Amendment)Act2008(Act[5] of 2009),coming into effectfrom 1.11.2000,it having taken the shape quoted above. The broad meaning of the expression "cognizable offence, as all along understood in relation to the power or jurisdiction of a police officer to arrest "without warrant", guided further by the definitions in clauses(c)and(1)ofSection 2 Cr.P.C. noted earlier can,thus,no longer hold good after the amendmentof Section41 Cr.P.C.Thisthgaghfneeds^some elaboration. n n jgj fishes,. \1 I

45. An offence,may^ attract'^puhishmentCwitfrimprisonment for ' 'I term less than seven years andfhe prerrequisite spelt out in Section ' r ' ^ ^ 41(l)(b)(ii) may not be available andi^therefore, the.police officer may not have a power to arrest without-warrant and,yet,tho offence involved may be "cognizable" (>sm'ce, so specified by me law), respecting which the police.may'^be ^ty bound to register an FIR under Section 154 Cr.P.C.aricfembark^upon investigation.'This may be illustrated lly reference to all such IPC difenees'included in the first part of the Firsf'ScheduleTo Gr-rP.C..as' attract punishment which may be imprisonment-for-IT term-less than seven years but may have been specified by the fourth column as cognizable, they including,for example,the offences punishable under Sections 129 IPC (Public Servant negligently suiffering prisoner to escape); Section 133 IPC(Abetment of assault by soldier, sailor or airman on his superior officer when in execution ofhis office); Section 148 IPC (Rioting, armed with deadly weapon); Section 160 IPC (Punishmentfor committing affray); Section 212IPC(Harbouring way); Section 304-A IPC(causing death by rash or negligent act); Section 324IPC(voluntarily causing hurt by dangerous weapons or means).The list can be endless.

46. In view of the above, it would be wrong, if not naive, to construe the expression "cognizable offence" so simplistically as to connote an offence where the police officer has a power to arrest without warrant. Whether or notthe power vests in a police officer to arrest a person without warrant in a particular case is to be seen by the provisions of the law whicff^rdgula^ the investigation, inquiry or trial for the pffenceiinVolvedfinviC'Mere,classification of an offence as cognizable or nqntcognizable, would facto, not confer a generarbf unrestrtcte'd power to^arrest, particularly on a police oiiicer. 1 }| \( r I

47. It is[one thing to say thatiaipoldce officer has the Power of I s 4 ^4 Ufi". I arrest and quite another to'skvAhitdhe power was prbperly or iustifiably.exercised;' It has'bdemthe,consistent view ofthe courts in ^ "x. -'t ^ ^ Indiathatpowerjs not;tp bej.exercised merely bechuse it exists,[see Arnesh Kumar Vs. Statey/MaK:(20&f8SCC273 and Courton its own motion Vs. Central BureaU'dfInvestigation, ILR (2004) 1 Delhi47]. By various pronouncements,guidelines have been given by the courts to the law enforcement agencies as to the manner in, or circumspection with, which a power ofsuch import as ofarrest is to be exercised. The amended provision of Section 41 Cr.P.C. incorporates some ofsuch guidelines putting certain restrictions on the general power of police officer to arrest in the case of a Vb use. The objective of the amendment brought into force by Act no.5 of2009 referred to above was primarily to check abuse ofthe power ofarrest vested in a police officer.

48. Thus,the power to arrest a person involved in a cognizable offence still vests in a police officer but be is inhibited by law from exercising it except in cases or situations, where be is permitted to do so by the amended provision ofSection 41 Cr.P.C.,though only by scrupulously following its requirements.This,however,does not mean that such offences as have'b^bSpecified to be "cognizable" cease to be in that category^because'^tbe^qldce pfficer cannot arrest without warrant '.(for want.^XoF*specified''-''conditions). The o '( ^ \\ classifications of each offence^'im terms^ of the general law, as reflected bythe First Schedule appended to Cr.P.C.,or as specified ij r. JL. n by the special law creating the offence, would continue to hold If 1/ t-i t/f If.'\i I ! q r.' * (l ' good - notwithstanding the^restrictions^on the power ofthe police \ j/A '-♦• '■ ' officer to cause arrest. '1 V

49. In view of the above, the general meanihg ahddmport of the expression "cognizable offence"^lisfnof^be re-understoodinlight of conjoint effect of Section 2 (c) read with amended provision of Section 41 Cr.P.C., so as to denote an offence in connection with which a police officer may arrest a person (respecting whose complicity there is credible information or reasonable suspicion) without warrant, such authority being subject to restrictions inlaw.

50. Since classification of the offence - cognizable or noncognizable - has also some connection with the investigative petitioners based on the ruling in State ofHaryana and Ors. Vs. Bhajan Lai and Ors., 1992 Suppl.(1)SCC 335 wherein the court had observed that "(w)here the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without order ofa Magistrate as contemplated under Section 55(2)ofthe Code." Similar view was taken in Dm Prakash and Am. Vs. Union of India and Am., (2011) 14 SCC 1. The submission of the petitioners is that if the.Gontentiomaith^at the offence is noncognizable were to be,%pheld-i any' investigation without authorization from the court ofIS^ihtrate(or Special Court)would be impermissible>„^ » // AU' r

51. But the fundamental errdffihffliM of argument is that the 11... f,. observations in Bhajan Ta/|(supfa)f|and other similar' line of I^ ^ rti ^ ^'"r l| ' precedents are in the context^pf general criminal law where the pA 1 St /,* investigation is in thefiands^pf^tbe^ tcontfblled bythe Code of Criminal Piocedure.-- These submissions^maymot hold good ifthe speciallaw has its own,dispensatioh"Vis-a-vis''the investigation and cognizance by the court. "As h^d in Board of Muslim Waifs, Rajasthan Vs. Radha Kishan and Ors.,(1979)2SCC468, it is not a sound principle ofconstruction to interpret expressions used in one Act with reference to their use in another Act, and decisions rendered with reference to construction ofone Act cannot apply with reference to theprovisions ofanother Act unless the two Acts are in pari materia". vn \ V_

52. For the foregoing reasons, comment on the issue as to whether the offence of money-laundering is cognizable or as to whether authorization from the court is a pre-requisite to investigation or arrest in its relation is presently reserved till the scheme and the provisions of the law have been properly understood. Before one proceeds in that direction, however, the meaning of "cognizable offence" in the context of some other criminal statutes may also be noted.

MEANING OF"COGNIMBLE^FENCE"-SPECIALLAW(S)

53. The general sut>stantive law "^providing- for offences punishable in India is supplenientedbymumerousvehactments which f I create subjectTS^ecific offences^"jthey ^ancluding;'.^as 'mentioned earlier. Official Secrets Act,l'923yPre'vehtion ofFood Adulteration Act,1954/|incereplaced byBook Safetyand Standards Apt,2006); ^; 'I I n. ' the Customs Act, 1962;''^"Narco'tics^ Drugs and Psychotropic Substances Act, 1P8'5;,.Pfeybhtipp.?|ofXCorruption Act, 1988; V- //■//-'A.y--' X _ jsrwn -. Maharashtra Control of Organized Crime'Act,^ F999;-Prevention of Terrorism Act, 2002\and'•iK-otectibh" Children from Sexual Offences Act, 2012; et al This list-ofspecial laws, of course, is not exhaustive. These enactments are being referred here by way of illustration to bring out the fact that the legislature, at times, refers one to the general prescription in the First Schedule appended to Cr.P.C. to ascertain if the special law offence is cognizable or noncognizable as also for purposes ofregulating the process of inquiry or investigation and theprocedure for taking of cognizance, etc.

54. To quickly expound on the above, it may be mentioned that the provisions of Prevention of Terrorism Act, 2002 (since repealed) created new offences (Sections 3, 4 and 6) which were classified by Section 49 to be cognizable and non-bailable, the forum for trial being Special Court established in terms of Section

23. Similar is the dispensation under Narcotics Drugs and Psychotropic Substances Act, 1985,Prevention of Corruption Act, 1988, Maharashtra Control of Organized Crime Act, 1999 and Protection ofChildren from Sexual Offences Act,2012.Noticeably, however, the authorities yesipid|tvith the',power to investigate and bring the offenders to justice imalPthese speciafjaws-continues(or continued) to be^ police, the Jagericy/,generally e£|msted with the responsibility ofinvestigation ofcrinieS'..iBy and large,the offences under these*enactments have been"'coghizable" and the cognizance by the specified courtis uponxeppA(uhder Section 173 Cf.P.C.)of the police officer on completion of investigation, as envisaged in Section 190(l)^b).a-T2(±^

55. To the abovefist, one^jiimy'addfhe.^special law known as Official Secrets Act, 1923. though'the offences created by this legislation (Sections 3, 5, 6) are also deemed, by virtue of the Second Part of the First Schedule appended to Cr. P.O., to be "cognizable", and consequently the police is obliged by law not only to register the crime(under Section 154 Cr.P.C.) but also to investigate - and this would eventually lead to a report (under Section 173 Cr.P.C.) being submitted - the cognizance of the offences under this law is not on police report under Section \ I Section 13(3),the cognizance in such case thus being under Section 190(l)(c) Cr.P.C. Because the offences under this special law are cognizable and since the police is empowered to investigate, there being no provision to such effect, only because the cognizance by the court would eventually be on a complaint rather than a police report it cannot be said that arrest cannot be effected withoutproper authorization from the court. -

56. The special law on food adulteration provides a slightly different dispensation. The«s#sfwlfile"enactment, the Prevention of Food Adulteration-A%t,rT<954ywas prirnaMf'a Criminal law which '. i.f'" -«! 4^: created offences defined and provided for fi^ivarious clauses of Section 16. Section 20(3)'clas^ifiedjorie'^^ thCw specified in Section 1|6(1AA),to be"^g^i^le''&id"non-bailable',making it clear thai such special stipufhionMas necessary because under H if r,3.J II 11,,,TJl the ordinaryilaw governed by the^Section Part ofFirst Schedule of 1 _ ' ' ^ ',/' Cr.P.C. it would be;btherwise^h^ye bpen,a,non-cognizable and bailable offence,in as"much as the"Wximum^punishnl^^ would be imprisonment for a term uptofw'p-years with fine. The rest ofthe offences under the old law on.^fopd adulteration were clearly noncognizable and bailable. The law conferred the power for investigation and launching of prosecution for such offences generally on the localhealth authorities,the cognizance bythe court of Magistrate empowered to deal with such offences summarily being upon a complaintbysuch empowered functionaries.

57. The Prevention ofFood Adulteration Act, 1954 was repealed of which came into effect from 2007 onwards. The new law is a mixed dispensation. It seeks to meet the challenge of food adulteration by imposition of penalties (civil action) or by making certain acts penal offences(criminal action). There are authorities established for dealing with the civil action. For trial of the offenders for the penal offences (Sections 59 to 64), the court of Magistrate of the First Class is generally the forum specified (Section 73),save for graver offences punishable under Section 59 (iii)and(iv), which are to be tried by the special courts established under Section 74. The law establishes authorities responsible for enforcement of its various provisions, they including the Food Authority, at the. apex, and Other functionaries like Food Safety Officer, Designated Officer, Food Analyst etc. A conjoint reading of Sections?41, 42 and 47,.besides/others, would show that the Food Safety Officer and the Designated Officer are generally responsible for detection ofcrimes under this,law,the investigation required in such wake and for bringing the offenders tojustice and, for such purposes,they have been vested with the requisite powers of search, seizure, summoning,investigation and prosecution. The Commissioner of Food Safety is vested with the discretion, by Section 69, to supervise and control the compounding of such offences as are not punishable with imprisonment, subject to certain restrictions. Pertinent to mention here that though the Food Safety and Standards Act,2006 does refer by its various provisions to the Code of Criminal Procedure, 1973, modifying some in its relation, it scrupulously avoids classifying any of the offences as

58. In above view, the question as to whether an offence under Food Safety and Standards Act,2006 is cognizable(or bailable) or not would have to be regulated by the Second Part of the First Schedule appended to the Code of Criminal Procedure, 1973,thus guided by the maximum punishment prescribed. Generally speaking, all offences other than those prescribed in Section 59(iii) and(iv)attractpunishment which falls in the least grave category of the Second Part ofthe First Schedule to Cr.P.C., and consequently they would have to be treate4as nonrcognizable and bailable. But, keeping in view the ^hishmeht prescribed-, (imprisonmentfor term which may exterid to six years)thdrefor, the offence(manufacture, sale, distribution..etc. of fbod.,articles;fesi|lting iil^grievous injury) ii 7?^ under Sectioii 59j^iii)wouldibe-jwdgnizajble and non-bailable and,by virtue of Section 74 triable by the 'sp]scial court. In contrast, the \i hW ftI « I sif. ilf to « • Si Xvi! offence (manufacture, sale,^ distribution etc. of food articles resulting in death) under'S^ection' 59(iv) which attracts imprisonment which shall not bd less than sqyen-years but may extend to imprisonmehtafor*life»wouldv|;faiy^^^ most grave category of Second Pah oflhe^FirsF'Schedule to Cr.P.C. and thus xssmtsssssSSi' also be cognizable and non-bailable,but triable by the special court under Section 74.

59. The Food Safety and Standards Act, 2006 does not modify the Code of Criminal Procedure, 1973 to such effect as to independently specify the classification of offences different from the general prescription or the powers of the police to investigate (or cause arrest ofpersons found complicit)generally in relation to effect of Sections 41 and 42 that confers the power to "launch prosecution" on the Food Safety Officer. In the opinion of this court,therefore,for dealing with an offence under Section 59(iii)or

(iv) of the Food Safety and Standard Act, 2006, a police officer would be obliged in law not only to take note of such cognizable offence in accordance with Section 154 Cr.P.C. but also to cause arrest,ifthe need arises to do so,in exercise ofthe power regulated by Section 41 Cr.P.C. But, upon completion of investigation, the police officer would have the criminaCaction initiated in the court by calling upon the eifforcernenfijaiktl^oritie speciallaw to ' )/ ) <4 launch prosecution by filing a cojiiSMnt before4he,competent court and consec^ehtly!^thecogiS;^^^fe!|lll^,notorithe policereport under Section 190(l)(b) byt,, om.such complaint mndei^ Section 190(l)(a)Cr.P.C. n «.11 < H If *' " ti '''4' '.\i17s, i^

60. The fcustoms Act, 1962'provides^a study in sharp contrast to the above mentioned'special,enactriierits J)ut, as we shall see in due course,this law,- the-Customs Xct,is nearesfhomefasrequivalent to the one which is the'subject^matter,of-the present proceedings, namely,thePMLA. ~ "

61. The Customs Act, 1962 was enacted to consolidate and modify the then existing law so as to stemly and expeditiously deal with smuggled goods and curb the loss to the revenue. The legislation contains detailed provisions pertaining to prohibition on importation or exportation of goods, levy of duty upon such transactions, assessment ofthe revenue payable,realization thereof, -1-) customs", specifying the powers or functions entrusted to different classes thereof. The officers ofcustoms have the power not only to search or seize goods which are exported or imported in contravention ofthe restrictions thereby imposed but also to detain any person for detection, or for questioning,for such breaches. The said authority of customs officers extends to the power of arrest (under Section 104) in cases where there is reason to believe commission of certain specified offences under the special law, such power being akin to that of a police officer and mandatorily required to be subject tOAth'eijproJvisionsNof 6gde of Criminal Procedure, 1973, The enactmentere,ates special.offences (Sections V f t »V ^ ^ y 132to 135-A:and Section!36)ahdkdirectsliby Section 138,all such offences to;be'triable by Magistrate following the\summary !/ • • Vj.. procedure..'A customs officers,-duly.;,empowered or authorized, is l! ih I'\A I.. H entitled tov,examine any person accjuainted with the facts and circumstances of the -case ^and^ forVspch piirposes, may compel appearance byAssuing-^summons either to give, evidence or to 'Hi.. yy yy produce documerits in terms ofSection 107-and 108.'

62. Having regard to the overall scheme ofthe Customs Act the investigation carried out by the authorities under the law results in the prosecution in the court of a Magistrate, it taking cognizance, subject to appropriate sanction where required,in terms ofSection 137, the nature of the smuggled goods "prohibited goods" or the value ofthe duty thereby evaded (Rs.50 lacs or more)controlling the classification of the offence as "cognizable" or otherwise, in "non-cognizable". It needs to be noted for clarity that an enforcement ofthe Customs Act resulting in criminal prosecution is through officers ofthe customs and not by police. It is well settled that officers of the customs are not police officers and that the statements recorded by them in the course of inquiry or investigation undertaken in terms of this special law, particularly statements under Section 108, are not akin to the statements recorded by the police under Section 161 Cr.P.C.and,therefore,the same are not hit by the rules of admissibility of evidence. Section 138-B further clarifying the position as to their relevancy under certain circumstances. "" v,.

63. In above context, reference'may be made to' Ramesh Chandra Mehta v. State of W.B., (1969) 2 SCR 461, wherein a Ml ^ X v', ' M Constitution bench ruled thus: ' Sx mf% ll' n 'il "25.... a Customs Officer is under the Act of 1962 not a police-officer within the.meaning of Section 25#of the Evidence Act and the statements made before him by a person who is arrested or against whom an inquiry is made are not covered by Section 25 of the Indian Evidence Act." -.. '.;

64. The above view was reiterated in lUias v. Collector of Customs,(1969)2SCR 6If'State ofPunjab v. BarkatRam,(1962) 3SCR 338;and Om Prakash v. Union ofIndia,(2011)14SCC[1].

65. Thus,similar to the provisions ofPMLA,the scheme ofthe Customs Act, 1962, while creating penal offences, establishes its own machinery for investigation and prosecution. The officers of the customs are empowered by the law to arrest the persons complaint ofthe empowered officer that the court takes cognizance. Some ofthe offences are classified as cognizable, the others being non-cognizable. Obviously, therefore, there would be no power of arrest vesting in customs officers vis-a-vis the non-cognizable offence. This, however, does not mean that a Customs officers will have to seek authorization to exercise the power of arrest in cases where law confers on him such jurisdiction. Further, the fact that the offence is non-cognizable only means that the customs officer has no power ofarrest.It dqesmotlead to the conclusion that he has no power to investigate into, a ribrij-cognizable offence under the Customs Act, it bein| a special;law not controlled, for such purposes by|me general lawXelatihg to the powers of police to investigate, as-^stipulated invChapteflXIl ofthe Code oflCriminal Procedure,1973(Sections 154to 17.6)., |i " !!.1'' d

66. In Slimming up on this^issuey'it may be observed that the expression ''Qpgnizable"\in"irelation tb an ^offence cannot have a uniform or static meaning.^Its connotation maydifferfrom onelaw to the other. Further,'only"because there are restrictions regulating the power ofarrestin acoghizablejckie,-orbecausethere are certain pre-requisites to the taking of cognizance - say, filing of a complaint-itdoesnotnecessarilyleadto theinference,unlessthere is a statutory provision to such effect,that the empowered agency cannotinvestigate or arrestwithoutauthorizationfrom the court.

67. The above conclusion emerging from the scheme and plain language of the law is reinforced by the fact that the marginal declaring that the offences under this special law are cognizable. The speeches (and the intervention) of the mover(s) of the amending bill in each House ofthe Parliament, as one shall see in due course, also did not state that the offences were to be declared as non-cognizable. They only clarified that the amendment was necessary so as to ensure that police did not exercise the general power ofarrest in such cases.

PREVENTION OFMONEY-LA UNDERING ACT-AN OVER VIEW

68. The malaise of money-laundering has posed a serious threat, particularly in recent times,not only to the financial systems ofthe civilized world but also to the.integrity and sovereignty of the member States. The United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances to which India is a party called for prevention of laundering of proceeds of drug crimes, and other connected activities and confiscation of proceeds derived from such offences. The Basic Statement of Principles, enunciated in 1989, outlined basic policies and procedures that banks should follow in order to assist the law enforcement agencies in tackling the problem ofmoney-laundering. In the wake ofobligations emanating,inter alia, from the adoption ofthe recommendations ofFinancial Action Task Force established at the summit ofseven major industrial nations, held in Paris from 14th to 16th July 1989, followed by the adoption of the Political Declaration and GlobalProgramme ofAction bythe United Nations General Assembly through its Resolution No.S-17/2 of 23rd 7l United Nations in the Special Session on Countering World Drug Problem Together,on the basis ofreport ofthe Standing Committee submitted on 4th March 1999, the Parliament enacted the Prevention of Money-Laundering Act, 2002 with the avowed objective "to prevent money-laundering and to provide for confiscation of property derived from, or involved in, moneylaundering and for matters connected therewith or incidental thereto." The law(PMLA)has been amended several times, lastly by the Finance Act, 2016(AGt.No.28 of2016). It is a measure to deal with "money-laundqring{||He Idefmition bfijwhich expression by Section 3, makingsit a penal dff®ee,has alrbady:Been taken note of. What is cruciakis the fact^thaPthe rhohey therdbypargeted must represent "proceeds of criine", the infringing process or activity being in the nature ofits concealrnerit,,possession or acquisition or !' Illrf-fi'l'.. i' leading to 'its use in such alriianher ^so as to facilitate /the party involved(ofcomplicit)4o b^jihiWpbsitibh!to projectorclaim itto be an"untainted" asset.Tb7putit'simply,the nlbney(0r,^thf/asset should be"tainted"(say,undeclared orresult ofcriminafqetivity)butbeing shown as legitimate by being routed throiigh (the impugned) transactions meantto give itthe colour oflegitimacy.

69. As in the case ofCustoms Act,PMLA seeks to deal with the scourge of money-laundering both by civil action (attachment, adjudication and confiscation)and criminal action(prosecution for the offence ofmoney-laundering leading tb punishment),the former by special machinery (Adjudicating Authorities) created for such purposes(Section 6),the remedies being available initially before an Appellate Tribunal(established under Section 25),and the latter before the Special Courts(under Section 43).

70. Section 48 of PMLA specifies the authorities specially created for its purposes, the highest being the Director (generally known as Director of Enforcement), an appointee of the Central Government, the other authorities (Additional Director, Joint Director, Deputy Director, Assistant Director and other class of officers)being appointed by the Central Governmentfor aiding and assisting. The said Authorities, appointed^Tor purposes ofPMLA, are conferred with^the responsibility'ofirii|iating all action leading. inter alia, tof proceedings.'for'^attachment, adjudication or confiscation oftlie tainted'moifeY-pr.property or for prosecution for the offence'Undef Section \\;'i ^ I

71. The procedure for attachmfenhVadjudication and confiscation is govemed-.by the third chapter.(Sections 5 to 11),it commencing with the Director orAhe.Deputyu)Director(authorized bv the former) recording "in writing",the "reason to believe".thdt any person is in possession ofany proceedsofcrimes;,siicifproceeds being likelyto be concealed, transferred or dealtAvith in a manner as to frustrate the objectives ofthe law,the basis for such action being "material" in the possession of such authority. The Director, or the Deputy Director, having recorded such beliefin writing is empowered,by Section 5(1), to direct provisional attachment of the suspect asset (money or property) which, it must be added, is subject to appropriate fiirther proceedings before the Adjudicating Authority -11 consisting of the Chairperson and two Members, the detailed provisions conferring upon such Authority all trappings of an independent Tribunal,the orders passed thereby being amenable to appeal before the Appellate Tribunal established under Section 25.

72. The special legislation (PMLA) seeks to focus, generally speaking, on "proceeds of crime" and, particularly, on certain specified offences each being referred in the law as "scheduled offence", an expression defined in Section 2(y), taking one to the Schedule appended to the enactment?' The Schedule is divided broadly into three parts,,fhe,first'(Part A),including certain offences under Indian Penal'Code and.ceitain offences?under";special laws like Narcotic Drugs and Psychdtfopic'^Substa^ces Act, 1985, Explosive Substances Act, 1908,Unlawful Activities (Prevention) 7,\'I* p Act, 1967,|jArms Act, 1959,Tfevehiibn of Corruption Act, 1988, il I' tfi 'M'ViTi (I Customs Act, 1962, etc. Thi.next?^^,(Part B)of the^chedule specifiesthe offence'under'Section!l32ofthe Customs Act,1962as a scheduled offence?while the last (Part,C) includes some such offences as have"cross'border implication's".' '

73. The first proviso to Section 5(1)clarifies thatthe Director(of Enforcement) cannot proceed to order provisional attachment of a tainted property unless,in relation to the scheduled offence,areport has been forwarded to a Magistrate under Section 173 Cr.P.C. or a complaint has been filed by person duly authorized to do so under the law,the second proviso creating an exception in case the wait for the submission ofsuch police report or filing ofcomplaint may

74. The Authorities under the PMLA have been vested with the powers and jurisdiction, inter alia, for gathering of evidence, if required by search and seizure, summoning and enforcing the attendance ofany person acquainted with facts or for production of records, examination of witnesses and documents including by issuance of commission etc. While the powers of survey, seizure, search,etc. conferred on the enforcement authorities are spelt outin various provisions ofthe fifth chapter,some such powers(as ofthe civil courts)are vested in thej^djudicating,Authority by Section 11. The fourth chapter creat%; certain; obligations of Banking Companies, Financial lnstitutions->and Intermediaries to share information, the ninth cha:pter dealing'with recipfScal arrangement jf r-- ""^7 Af ^ for mutual assistance requisite with authbrities in foreign countries.

75. It is primarily the action that begins with recording in writing \' ' I^ under Section 5 the reasonS;;for^^»belief of a person/being in <CV, v \ '7 possession ofproceeds/ofcrime^and such asset;being subjected to process or activity^ resulting in it being in-the^mature of moneylaundering thatleads'notonly;tojthe proceeding'sfor'attachmentand confiscation but also the"criminal- action in the special court established under Section 43. It is the result of the investigative process undertaken by the same authority as leads to the two actions including,whatis relevant here,the prosecution in the special court for offence under Section4PMLA.It is from this perspective that it is important to note that the enforcement officers are conferred by Section 19PMLA with the power ofarrest. "19. Power to arrest.—(1) If the Director, Deputy Director, Assistant Director or any other officer authorised in this behalfby the Central Government by generalorspecial order, has on the basis ofmaterial in his possession, reason to believe (the reasonfor such belief to be recorded in writing) that any person has been guilty ofan offence punishable under this Act, he may arrest such person and shall, as soon as may be, inform him ofthegroundsforsuch arrest. (2)The Director,Deputy Director,AssistantDirector or any other officer shall, immediately after arrest ofsuch person under sub-section (1), forward a copy of the order along with the materialin hispossession,referred to in thatsub-section, to the AdjudicatingAuthority, in a sealed envelope, in the manner as may be prescribed and such Adjudicating Authority shall keep such order and materialforsuchperiod,as may beprescribed. (3) Every person arrested under sub-section (1) shall, within twenty-four hours, be taken to a Judicial Magistrate or a Metropolitan Magistrate, as the case may be, havingjurisdiction: Provided that the period of twenty-four hours shall exclude the time necessary for the journey from the place ofarrestto the Magistrate's Court."

77. Pertinent to obs.erve^'Here.^that-it.4S''essential that the authorized officer ofEnforcement must have in his possession such material as on the basis of which he may entertain "reason to believe" that the person being arrested is guilty of the offence of money-laundering (or some other offence under the special law, such as those provided in Section 62 and 63). The pre-requisite for a lawful arrest in terms ofSection 19(1)PMLA is recording ofthe reasons for such belief "in writing" and after effecting arrest the That the two actions, one for attachment leading to confiscation of the tainted asset and the other leading to criminal prosecution, are inter-connected is brought out vividly by Section 19(2)obliging the arresting officer to forward a copy of the order (including of authorization)setting out the reasons for beliefofcomplicity ofthe arrestee, along with copy ofthe material on the basis ofwhich such belief was drawn, to the Adjudicating Authority which, in normal course,would be already privy to the ongoing investigation in terms of similar submission made^under-=:Seetion 5(2). The Adjudicating ST® Authority is oblige4^%.the|la^toJ ke||,m ifs'^safe custody and control such subimssidifconceiSiSlMhe arrestldurin'4\investigation under PMLA7'im4}sealedC^nvelope''.^Both^the rep'ort^uhder Section if 'Vt' 5(2) to thfe «x%djudicating^^t^Authority) immediately %fter the If r j provisionalljattachment ofthqdainted^(or suspect)propertv and the 11 'ii fsC - 1 1 l'> grounds ofarrest in terms of.SbPtionl|ll(2), along with the;material on the basis of which e'achflsupBfaGt^^^ been /taken, are safeguards put^in/fefilion'byTfte^lw^whicfe^^^^ to,but not same as,the requirement qTS^'hon4^57(T)^r.PfQ^ a police officer makes a repdif^ctq!;^ex=^Ma^||trate''"'empowered to take cognizance of an offence before embarking on the process of investigation; one distinction here, of course, being that under the general criminal law, all investigative steps, including the arrest, search, seizure, etc. would be reported from time to time to the Magistrate with whom the report under Section 157 Cr.P.C. has already been submitted, in terms of the special law, the Adjudicating Authority, though the repository of both reports (of civil action,the authorization for detention in custody being granted by thejudicial magistrate,under Section 19(3),for which purposes, a general reading of the law would confirm. Section 167 Cr.P.C. would apply.

78. The trial for the offences created by PMLA is held in the court ofsessions designated as Special Courtin terms ofSection 43. It is necessary to take note ofSection 44 in this regard,which reads thus: "44. Courts.—(1) tk^^G^de ofCriminal ProcedureGlSt73^:(2of197^}^ '9xWk Gjyy, / ^ 4 U ^ 1 ^ (a)an offemelvumskable'undenSection 4 and anv\scnedulea offenckconnected toHhe.pffencelunder thatsectiorCshall be triablje byHheSpecialGourfconstitutedfor the'drea\\ in which the offence hasSeenPommitted: |i I li n p U if ]l I Provided that the Speci^l^ ^ scheduled offence before the commence^^^^f^^^Act,shall continue to try.4A QA' j/. // such^edulep^n&S^tyWa / (b) a Sp^cidffCoykftfhaf^^up'oh a'^Eom^aint/piade by an authorityf^lk^ns%d!ifn^ this bphdlf<khdeffthis Act take cognizancek^^i^^^^^^ifiitthe accused beingcommittedfOi.^or-tMM-Jsxcs-^^^ (c)ifthe court which has taken cognizance ofthe scheduled offence is other than the Special Court which has taken cognizance of the complaint of the offence of moneylaundering under sub-clause (b), it shall, on an application by the authority authorised tofile a complaintunder this Act, commit the case relating to the scheduled offence to the Special Courtand the Special Courtshall, on receipt ofsuch case proceed to deal with itfrom the stage at which it is committed. (d)a Special Court while trying the scheduled offence or the (2 of1974), as it applies to a trial before a Court ofSession. (2) Nothing contained in this section shall be deemed to affect the special powers ofthe High Court regarding bail under Section 439 ofthe Code ofCriminal Procedure, 1973 (2 of1974) and the High Court may exercise such powers including the power under clause (b) ofsub-section (1) of thatsection as ifthe reference to "Magistrate"in thatsection includes also a reference to a "Special Court" designated under Section 43."

79. Though Section 71 (^elares-u®qui^o^ that provisions of PMLA '''shall aft^^ng inconsistent therewith containeddri'^ny othilSJ^fgr the^drne,beipg inforce" ofSegW i|2)Cr.P.C. which rcsonales^Sk in c|fectTsThe4mp^dpt which has alrea'dy been taken'note*^of, at the sameTiftieVit further i(t brings out,ifor clarity, by Sectipns46 and 65 that the provisions of 11 fffilfll'l,. J the Code ohCriminal Procedure-'t9PiS|iall apply,in so far as they w // are not incpnsistenti^tl§|^%o«pn|^ 1^, to the proceedings bbforb«;the/SpeciaraiA ahd in¥thd:^atters relating to "arrest,search and::^izu^f^ii^ investigation. prosecution" and all otMr^pml^edthl^-Eef^^ in order to allay further doubts, if any entertained in this regard, various other provisions ofthis special legislation make it abundantly clear that the Code of Criminal Procedure, 1973 would regulate the criminal action unlessthere is a special provision inPMLA to the contrary or inconsistent with the general procedurallaw,such clauses including Section 43(2),Section 44(l)(d),Section 44(2),Section 45(l)(la)(2) and Section 47.

80. What merits particular note is the fact that the Special Court which is empowered to take cognizance of the offence of moneylaundering under Section 4 or any scheduled offence connected thereto acts, in terms of Section 44(1)(b), upon a complaint by the competent authority(specified under Section 45),thejudicial act of taking cognizance thus being under Section 190(l)(a).

81. It is apposite to add here that Section 45 (1-A) of PMLA declares in clear terms that notwithstanding anything contained in the Code of Criminal Proe.edufe^^^^ii^^^ provisions ofPMLA IST rrii "no police officerysliallrdT^MgaieHnthJ^^^bffertce^under this Act unlessspecially/hutfibrized(to-dotsol'',the spediajtauthprization visa-vis the police«i,dmcer bys^Ke CeniraliCkivemmeriKtodysubject to such condi^tions"^"'as may beji^prescjabpd. The PMLA, by^ Section 2(l)(na), defines the term '!investigation" as including!"a// the ii ^ f'/ proceedings^under this Ach^pfj^uc^e^^'by the Directorjor by an Noticeably investigation by

82. It is clear from the d^iwiow^df me law thus far that the investigative process underPMLA is entrusted by the legislature in the hands ofthe authorities thereby created(generally speaking,the officers ofthe Directorate ofEnforcement)and that police officers are generally inhibited from embarking upon investigations into the matters (or offences) relating to money-laundering, the only exception being where there is a special authorization. At the cost of Section 19 is also conferred generally on the senior officers of Enforcement Department (Director, Deputy Director or Assistant Director), though provision is made for authorization of other officers as well.

83. The moot question raised in these proceedings is as to whether the offence of money-laundering punishable under Section 4 PMLA is cognizable or not. The law, as it presently stands amended,contains the following provision in Section 45: "45. Offences taJy^e^cosnizable aM^non-bailable.—(1) 5,% (i ■#'% • Notwithstanding^^an^thiHg^hontmneMf'iT^^^^^ Code of CriminalffP7^o^^dire,^^^0pf^*^^of 19^4^%fib^erson accused' offefi^^unishqble for^'faJenm of impri^^ni^nt of )yearsundef^Pqrt-A of the SchedMe shall beiKetedsedJoh bail or on hisVown,'1 i! bondmnless— |) I] riiIMii j.

(i) the Public ProsecutpfMasipkeMigiven an opportunity

(ii) wHereifMeP^ubhc Prosecutor^iyppposes the applicatiojfi-Jhef coprt'^s^sMisnm Jkatf there are reasonable not guilty of such offence and thadfte^iW^ndf^likely to commit any offence while on bail: Provided that aperson, who, is under the age ofsixteen years, or is a woman or is sick or infirm, may be releasedon bail, ifthe Special Court so directs: Providedfurther that the Special Court shall not take cognizance of any offence punishable under Section 4 except upon a complaint in writingmade by—

(ii) any officer of the Central Government or a State

Government authorised in writing in this behalfby the Central Government by a general orspecial order made in this behalfby that Government. (1-A) Notwithstanding anything contained in the Code ofCriminalProcedure, 1973(2 of1974), or any other provision ofthis Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and,subject to.such conditions as may be prescribed. (2) The limifdtictm^^}gr(}nting JjjJiml'sp^hijlpd insub section (ifisyiiCddditiod^idWhe limitations under the Code qf/Cifrpinal ofl04J%r any otheriiawffor the timd^beingpn force on 0ahtmg of baU.'' Vt'';, 1 n TVv-^'i ' i M if ri 'I 'f' M • •

84. It was pointed out by th,ejlearned counsel for the Petitioners u ^ ^ i|]JIM. \l. that thoughi\the heading seem to indicate the Nl tfc[1] ■X J.[1] •.i^ I^i-v -m//- on offences under this4a^>^e^^^i|Wl^>(fPdfe^issJio pfovision the statute boolcvdeclaring^any offence,o/i^PMfeA.4a;;be cognizable. It is further pointed'^ouf4^^s|ltioliW||i-:^ it clear that police officers do not have'the'^aufhofity in law to investigate into PMLA offences (unless there is special authorization to such effect) and that the power of arrest in terms of Section 19 is restricted to the enforcement officers, the cognizance required to be takenby the Special Court being contingent upon a complaint'in writing being made by such functionaries only. It was also pointed out that prior to the amendment of 2005, there was a clear stipulation in law, by such clause having been omitted. On the basis ofthese submissions, it was argued that the offences under PMLA are to be treated as non-cognizable and since cognizance thereofis to be taken not on a police report but on a complaint by the Enforcement Officers, who only are empowered to investigate, any action without formal authorization from the courtis incompetent.

85. The above aspect would need consideration of the effect of amendment.

CONSTRUING THE'AMENDED SECTION45PMLA 'H « i[1] • u '') " ^ f[1] vt / U ^ i

86. The law qphtained in PMLA,-as originally enacted, declared by Section45thatevery offence un^enthis special/pnactmentwould be cognizable." - The origiriar>'pfoYisidn of Sectioi|;;45;,(prior to amendmentjof2005)mustbe quoted here: 'i 11 h n 1 '•u I M "45. Offences to be cognizablelqnd non-bailable.— ^ • r ' ^ (I)Notwithstanding(anything Uontainefin the Code of CriminalProcedure,1975'(2f)fI974f,—fy-, (a) every offence punishable under this Act shall be cosnizable; I j j fb) no person accused ofan offence punishablefor a term ofimprisonment of more than three years under Part A ofthe Schedule shall be released on bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity to oppose the applicationforsuch release;and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are such offence and that he is not likely to commit any offence while on bail: Provided that a person, who, is under the age ofsixteen years, or is a woman or is sick or infirm, may be released on bail, ifthe Special Courtso directs: Providedfurther that the Special Court shall not take cognizance ofany offence punishable under Section 4 except upon a complaintin writing made by— (i)the Director;or

(ii) any officer.offM],Central Goyerhment or a State

GovernmentSuthom^k^i^ Witin^^W^lhis'behalfby the. 1 -A, 7 7 ii ■} 7. j Central Q^ove^ment byMgphpral^r speeidforder made yi:-^ ^ V",-- /•' \N in this bPh^l^by tha§0^emiheht/ '| ^ \ //./A <j\ (2) Tne Umtation onRantinglofbailspecified-ih clause (b) dj'sub-section (Ip^ikfkkakdlition to the limitatipns under the Code ofCrifdinkliPmckdure, 1973 (2of19J[4]) 7 7 r mA.. r Ii or any other lawfor inforce on granting

87. By the Prev^tT(^^?f^i|i^-lSfflSeri%^{^n^endment) Act, 2005 (Act No.20 of 2005),lh^lDlMSeX5ffl[ained in Section 45(l)(a) quoted above was deleted. The clause (b) of Section 45(1), thus, merged with the remaining phraseology employed in the existing provision so as to become Section 45(1), now a provision intended to regulate primarily the issue of release on bail and the mode of taking cognizance, the pre-requisite being a complaint in writingby the Director or other authorized officer. The existing sub-Section accordingly modified so as to remove reference to clause(b)ofsub- Section (1). A new sub-Section(1-A)was inserted which contains the general restrictions against a police officer investigating into an offence under PMLA.

88. The submissions of the petitioners are that the legislature took a conscious decision ofomitting Section 45(l)(a)and the only intendment thereofcould be that the offences under PMLA are to be treated as non-cognizable. It was argued that the heading of the provision contained in SeGtiM^4'5is"hot-^ ofthe legislation and cannot control its-^intefTOetdtibh.^ ItWwas' siibmitted that the introductory spebches>and the^Tj^s^^-given dufifig Ihe debate at the time ofcihsi|efation amendingBill by the ji^ ^ A two Houses/ofParliament confirm this to be the intention of the a > I legislature,!1the insertion of sub-rS^ection (1-A) to Section 45, as I fxilii'lM. ii noted earlier,making it even;-;^^^%(§.^^atthe police officers have \\ //. no connectidh with the^mves|igalioh of-the criMesunder/this special enactment, the^mebb'ksafwxcorollary whereof;ids^pbr|he argument, would be that th^oj|eu^<^^ne^^^e^gi'tmder Section 4 PMLA is non-cognizabil%idG^^Suentlyr1t is urged, any arrest without authorization from the competent court, or even investigation by summoning any person under Section 50 PMLA should be taboo.

89. Per contra, it is the argument of the respondents that the heading of Section 45 remains un-amended and that the changes brought about by Act No.20 of 2005 have the effect only of °v\ the Enforcement officers and not to the police at large which, consequently, cannot embark upon such probes or exercise their power of arrest under the general law. It is the argument of the respondents that the Parliament debates cannot be used for construing the intention ofthe legislature since the provisions ofthe law are clear and unambiguous. Relevance ofmarginal head

90. The petitioners rely on Dr. Sham Lai Narula vs. CIT, S3ITR 151 (SC); Chandroji Rao vs~..Commissioner,ofIncome Tax, M.P.. H tl, Nagpur,(970)2S0C2'3fThakurain BalrajKumvar & Anr. vs. Rae JagatpalSingh'; 19(0 fIndian Appeals(VolumeXICC)ISf;Prakash Nath Khanni vs.-CIT, (2OO^l) (900(2(686; Guntdiph k Ors. vs. I?. ^;vT/a 1) 1 Hambammi& Ors.,(2005)0SCC(228 Union ofIndia &Anr. vs. NationalFederation oftkh Blin^"&^Ors.,(2013)10SGC 772 to || argue that the marginal headingcannot*control the interpretation of % --r. v/,, j >'.A f the words of.the section,particularly,,when the language of the section is clear and "unambiguous. It^was pointed out that in Guntaiah (supra) a bench"ofd\yd1Hon'ble'Judges of the Supreme Court went to the extent of obsefvihg that the marginal notes "are not considered as legitimate aid to construction ofany section or rule", or even further thatthe said "side notes are notconsidered as part ofthe Act".

91. The Supreme CourtofSouth Australia in the case ofRagless vs. District Council ofProspect, 1922 South Australia 299, way back explained the rules ofinterpretation with reference to marginal "1. If the language of the sections is clear and is actually inconsistent with the headings, the headings mustgive way.

2. Ifthe language ofthe section is clear, but, although more general, is not inconsistent with the headings, the sections must be readsubjectto the headings.

3. If the language of the sections is doubtful or ambiguous, the meaning which is consistent with the headings must be adopted."

92. In Bhinka & Ors. vs. Charan Singh, 1959Supp(2)SCR 798, a bench ofthree Hon'ble Judges ofthe Supreme Court quoted, with approval,Maxwelfdn Interpretation ofStatutes,(10th Edition,page as under-/ 4 A \\ "TheReadingsprefixedjo sections or sets ofsections in somM modern statutes are regarded as preambles^ to thos^isections. They c'annol'control theplain words of thesifitute butthev mayexplainsambisuous words."I,.s (emphasis supplied) /> 7 V I'' j ft ''7V //

93. The courtin Bhinka& Ofsy (supra)'observ.ed that"ifthere is any doubt in the interpretation of the words in the section, the heading certainly helps us to^resolye thatdoubt". In K.P. Varghese vs. Income Tax Officer, Ernakulam & Anr.,(1981)4 SCC 173, it was similarly held that though the marginal note cannot control the interpretation, "itprimafaciefurnishessome clue as to the meaning andpurpose ofthe section". In M/s.H.M.Kamaluddin Ansari and Co. vs. Union ofIndia & Ors.,(1983)4SCC 417, while enjoining upon the courts to follow the golden rule of giving effect to the meaning derivable from clear, plain and unambiguous words of a titlesprefixed to a section or a group ofsections can be referred to in determining the meaning ofdoubtfulexpressions such headings or title of a section, however, being "very broad and general indicators ofthe nature ofthesubject matter dealt with thereunder" and consequently having "a limited role to play in the construction ofstatutes", as held by a bench ofthree Hon'ble Judges in Forage & Co.(of Ushala) V[5]. Municipal Corporation of Greater Bombay & Ors., (1999) 8 SCC 577 and by a Constitution Bench of the Supreme Court in Sarah Mathewm^sinstitute of Cardio Vascular Diseases& Ors.,(2014)2rS(3.C'i62. -l /rs,

94. The view thaf marginal headings,of diffefent'sections of a;i.. & ^ "xli S. - *' legislation arc not part ofthe statute has beCnjuiikedsdyehthe years. "- --j ( -f'A cf Vi In Bhagira^ vs?Delhi Admihistratiqh,f1985)2 SCC 58^0, it was held by a Constitution hcnchytlxaffmarginal notes [are now A' \ li legislative and not editorial:exercises). Similar view "\yas earlier expressed in K.P. Varghese Vs.Income Tax Officer,Ernakulam and VK ' f[5] Anr., AIR 1981 SC 1922. Instances are galbre bfamendment Acts modifying,altering,substlfutinjleleting^or mkking some changes even in the marginal headihgs-oTthe existing law thereby affected. It would not be wrong to say that marginal headings are intemal aids available for interpretation, should a recourse thereto become necessary in the event of some ambiguity in the language of the provisions or scheme ofthelaw.

95. In view of the above authoritative pronouncements of the Supreme Court,including by a Constitution Bench as recently as in OM Statutory provisions are to be ignored cannot be accepted. Undoubtedly,ifthe statutory provisions are clear and unambiguous, the plain meaning derived there from will have to be given effect to butthe broad indication given bythe heading does assist,ifthe need arises,to understand the true importofthe statutory clause. Relevance ofdeletion

96. The petitioners argument, however,also revolves around the fact that clause(a) of Section 45(1) was deleted by the Parliament while amending thela^^jin 2()05.,Qn&may recall itis the said clause "= v I 'V'V' ">■ which declared the'offence under PMLA to be."cognizable". In the submission of the reSmed,;Counser for petitioners; the omission is indicative of tlie intention. 'R^eliance-is" placed cr&^SHagat Ram iJ ' '' Sharma vs:, Union of India Orsf 1988 (Supp) SCC.30; D.R. lOivff-r'V. M Eraser & Co. Ltd. V[5]. TheMiJ^isferhfNationalRevenue, 1948 SCC s', i ?'!,•' j! Online PCs65; and Comipissignepof Central Excise, jp-ichy vs. Dalmia Cement (Bharat) Ltd., (2008) L2&DLT597fDB). -:.X --^V 'S;%..py /./

97. In Bhagat Ram Sharma^isupra) it'was observed that when the legislature enaets-^any amending/.,k the existing provision, substituting it by a new provision it has the effect of "repeal of the existing provision", the withdrawal of the existing provision being also called an amendment. In Dalmia Cement (Bharat) Ltd., (supra), a division bench of this Court quoted, with approval, the observations of the Privy Council in the case ofD.R. Eraser (supra) to the effect that "when an amending Act alters the language of the principal statute, the alteration must be taken to

98. There can be no quarrel with the above propositions oflaw. The amendments to an existing law by the legislature are to be accepted as a decision consciously and deliberately taken to remove, as further observed in Dalima Cement (supra), 'Hhe mischiefin the old law". Thus,in order to comprehend the effect of the amendment, the court must apply the Heydon's MischiefRule and find outas to what wasthe mischiefwhich the legislature wants to remove by the amendment. Relevance oflesislative debate n " '' rf' i f ',

99. The leamed counsel- for the petitioners relied upon the /fV ^ V.S. I ^ speeches oftheTJnion Ministers!}Whp piloted the amendment Bill in the two Hodse^of Parliament^'4t^being'the Miniffpr of Finance introducing the amendment Bill inTlie Lok Sabha (on 06.05.2005) sj II I't J _ ij _ and, after its passage in the paid Bouse,it being the Minister of Home Affairs in Rajya Sabha(o^ M\b[5].2005). From the copies of the said speeches and the'report,of'debates that followed, as submitted at tne,''hearingv*dt appears^the' speeche#of both the Ministers were verbatim the""same. The,said 'speeches, may be quoted(astakenfromLokSabha'r&ports)as under: "Sir, the Money-Laundering Act was passed by this House in the year 2002,and number ofsteps have to be taken to implement it. Sir, two kinds of steps were required. One was to appoint an authority who will gather intelligence and information, and the other was an authority to investigate and prosecute. This Act was made to implement the political declaration adopted by the Special Session of the UN General Assembly in come intoforce on such date as the Central Government may by notification appoint. While we were examining the question ofnotifying the Act,Ifound that there was certain lacunae in the Act. I regret to say that not enough homework had been done in the definitions, and in the division of responsibility and authority. So, in consultation with the Ministry ofLaw, we came to the conclusion that these.lacunae had to be removed. Broadly, the reasons for the amendment are the following. Under the existins provisions in Section 45 ofthe Act, every offence is'Losnizable Ikan'^ffericeAs cosnizable, then any police officer in India can arr&st an. offender without warrant. At thdi'samefime, underySection 19 of the Adt\ only a Director or a Deputy Director or an Assistant Director orfdnv omerfofficer authorisedlimay arrest an offender. Clearly, there was a conflict between these\two provisions. Under^Section 45fl)(b) ofthefAct, the Special Court shdlVhot-fake cosnizance of any f 7P7~<. n offence punishable luMeUcSectioh 4, except u^pn a complaint made in writing by tfie Director^r any other officer authbrjsed bydhe Central, Govetpment.So, what would happen tdanarrestmadebyanypolice officer in the case ofa cognizable offence?^.Wfii'ch is the courtthat will try the offence? Clearly, there were inconsistencies in theseprovisions. They have now been removed. We have now enabled only the Director or an officer authorised by him to investigate offences. Ofcourse, we would, by rule, set up a threshold; and, below that threshold, we would allow Statepolice officers also to take action. The second anomaly that we found was that the 0(1 "investisation" occur in a number ofsections but they were notdefined in the Act. Consequently,one has to go to the definition in the Criminal Procedure Code and that Code provides only "investigation by a police offiicer or by an officer authorised by a magistrate". So, clearly, there was a lacuna in not enablins the Director or the Assistant Director under this Act to investisate offences. That has been cured now. The third difficulty that I found was that the Act contemplates an Appellate Tribunal under Section 25 but there might not. be^mnougk cases for a full-time Appellate Tribunal.^An Appellate Tribunal means a lot of money. There-: are otfey Appellate,Tribunals in similar Acts.:So, we could''authorise thostf,Appellate j i'"> ^ v* ^ 1 f 4'-^\ -C^'' \ Tribunalsdofunction fi sfApp^lStedTribunakunder this fit f... ^ ^ i"; Act 20er0l it is thesdme/etw^ CourtJudge or a seeing High Court'Jkidg^-^ho is going to be there. So, part ofthe time, ke wouldfievote to dealing with appeals arising under'sonie other Acts;and,part ofthe •r-Afr.A' time, he would,deal withappeals'arisingpnder this ict. Atleastin the,initialyearf wedpnotthink,thpr^ould beenougKwofkfqrafull-timeAppeallatfTribunal What we are doing~is...wq hre inserfinsa new Section,[2] (n) (a) definins the term 'mvestisation'; makins an amendment to Sections 28. 29 and 30, dealing with tribunals; amendins Sections 44 and 45 of the Act to make the offence non-comizable so that onlv the Director could take action; and also making consequential changes in Section 73. I request hon. Members to kindly approve ofthese amendmentsso that the Actcould be amended quickly and we could bring it intoforce."

100. It was further pointed out during the arguments that in the course of the debate that followed in Lok Sabhci, in answer to a query of an Hon'ble Member, the Minister explained the amendment as under;- "Sir, first to answer Mr. Sudhakar Reddy, Section 45(1) (a) is being omitted because, if the offence is cognizable, then any police officer in this country can arrest without a warrant. Section 19 savs, only the Director or Assistant Director should investigate the offence. There is a conflict. Therefore, we are makins it non-cosnizable. But:- -investigation will be by the Director. We will autliQrise,I up, top threshold. State police officers also to invepigate'offences. That is why Section 45(1)(a)is being omitted.",, \> (erhphasis supplied) I- i\'K ^ Ii H I ■'

101. The.'petitioners rely UnionfpfIndia &. Ors. vs. Martin '. ^ Va < ^ V' Lottery AgenciesLimited, (20^09) 42'tSGC209, to submit that speech >\ \ p \ /I of the Hon'ble Ministers in the'Houses of Parliament ma^l'be taken '/»,.1/ to be a valid tool forinterpretation.oi the.statute. ^ ^ ^/?

102. In A.K. Gopalan vs. State ofMadras, 1950 SCR 88, it was observed thus:- T. 'L "112.... A speech made in the course ofthe debate on a Bill couldat best be indicative of the subjective intent of the Speaker, but it could not reflect the inarticulate mental processes Ivins behind the majority vote which carried the Bill. Nor is it reasonable to assume that the minds ofall those legislators were in accord." (emphasis supplied)

103. InState of Travancore-Cochin v.Bombay Co. Ltd. [NAB. "16.... the use made by the learned Judges below ofthe speeches made by the members of the Constituent Assembly in the course of the debates on the Draft Constitution is unwarranted. That this form ofextrinsic aid to the interpretation ofstatutes is notadmissible has been generally accepted in England, and the same rule has been observed in the construction of Indian statutes

104. Instate ofMysore vs. R.V. Bidap,(1974)3 SCC 337,it was observed: "5. Anglo-American jurisprudence, unlike other systems, has generally frowned upon the use of parliamentary debates c^nd''Ipress discussions as throwing light upon the meaning of statutory provisions."

105. In K.P. Varghesew.ITO,^(1981)4 SCC 173, refeiring to a Minister's speech piloting a Finance Bill,it was observed:- S • S' & 'vl;' ' jfe' 8.... Now it is true that the speeches made by the Members of the legislature on thefloor ofthe House when a Biltfor enacting a statutory provision.is being debatedareinadmissiblefor thepurposeofinterpreting the statutory provision but the speech:made bv the Mover of the Bill explaining the reason for the introduction ofthe Bill can certainly be referred to for the purpose ofascertainin[2] the mischiefsought to he remedied bv the lesislation and the object and purpose for which the legislation is enacted. This is in accord with the recent trend in juristic thought not only in western countries butalso inIndia thatinterpretation of a statute being an exercise in the ascertainment of ^^cining, everything which is loeically relevant.^hnulJ be admissible." ' V

106. In Kesavananda Bharativs.State ofKerala,(1973)4 SCC 225,it was concluded that: "2140. It is hazardous to rely upon Parliamentary Debates as aids to statutory construction. Different Speakers have different motivesand thesystem of'Party ^ip'leaves no warrantfor assuming that those who voted but did not speak were of identical persuasion. Thatassumption may be difficultto make even in regard to those who speak. The safest course is to gather the intention of the legislaturefrom the language it uses. Therefore,parliamentaryproceedings can be used only for a limitedpurpose asexplained in.Gopalan case." /y 1# ' '%

107. In Ashoka Kumar Thakur v. Union ofIndia,(2008)6 SCC 1, another Constitution Bench while holding that ''reference to Parliamentary Debates can only be madefor a limited purpose", observed: "9.[3] Thus, it is clearMatMpmiMin Parliament are not usually relevant,for construction ofthe provisions ofan Act. Even wkefi'they are relied orC\- it isSonly as a secondary means oTmterpretgtion to help-remove any ambiguitiesfand nefer considered-to be binding as to the true objector intentofa-proyisiortor an Act.In light ofsuch limited importance'attached to Parliamentary Debates in statutory interpretation, assailing an Act on the ground ofinsufficiency ofParliamentary Debates is an unheard ofand unsustainableproposition in law."

108. Another Constitution Bench in Supreme Court Advocateson-Record Assn. v. Union ofIndia,(2016)5 SCC 1, has reiterated the consistent view of the court observing that "Parliamentary v°\ the Constitution or the statute if there is no ambiguity in the language used", since such provisions "ought to be interpreted independently", the court not to be "unduly influenced by the speeches made",and that confirmation ofthe interpretation "may be sought"from "theParliamentaryDebates butnotvice versa".

109. Thus,it would notbe correct to say thatthe speeches made in the legislature at the time of consideration and passage of an enactment reflect the legislative intent. Such speeches are at best indicator ofwhat may have been th?lntent-.behind the introduction of the Bill in the legislature'that'even't^^ became a law. If the language of theTegislation is cleapand unambiguous^ the external /V' fy 'S ^ \ tool ofreference to debate^im'the legislature is wholly unnecessary.

110. This,special law (PMh'A),|even,;as originally enacted, was !' 'iTI' •' notdesigned to confer an addii;ipnal|responsibility orjurisdiction on [i the police. The broad structure of;thelaw clearly indicatd^ that the legislature intendedfoMlai^lmifSc menace of;money-laundering outside the general regime for dealing„with the crimes. The acts constituting money^lalindering, generally^ haye the facade of ordinary business transactions. These are economic offences indulged in secrecy and stealth and their detection requires expertise and specially trained personnel. A general power of scrutiny of business transactions at large cannot be allowed to be undertaken for unearthing such activity. A probe of this nature requires due circumspection in as much as the initial suspicions may not necessarily be correct. A probe on the lines ofinvestigative process V" by the police would perhaps generally not suit the special demands ofan investigation qua money-laundering.

111. The provision contained in Section 45(l)(a), as appearing in the original enactment, seemingly was in conflict with the overall scheme of the law wherein the police had been kept out of the investigative process which was placed,instead, in the hands of a special machinery created by the legislation for its purposes. It appears the legislature was concerned that the layperson's perspective and understanding iff The": expression "cognizable offence" - which was perhaps.icdrrect imlhe light ofthe provisions of the Code of Grtoinal Pmcetoe^as they stood,prior to the amendment of2010 - wcii|iM|lge confusion and might result in 1 /?'. m/TT a' u police alsofexercismgjurisd4||^nT^|||l^tion toPMLA offences by registeringjthe same. Since lltiliwoufd not have fit in within the it ''l > H scheme oflaw, given the factIhat*PMLA requires launching of..T '-IK ' '/ prosecution by submission of.,a complaint ^ by the Director (Enforcement), it"appears the legislature wanted to preclude all possibility ofmeddlingEythe police, -f.,'i ' » tJ 5 112, This court need not consider of"decide whether the possible conflict or confusion required the above-mentioned amendment or not. The fact remains that both under the post-amendment law, as also the originally enacted PMLA, the power of arrest had been conferred not on the police but only on the authorities specially created by the law.

113. The continued use ofthe expression "cognizable"in relation V cannot be wished away. It is part of the law as originally enacted and remains unamended. Of course, the marginal head cannot control the meaning of the main provisions. It is only a broad indicator ofthe content ofeach section. After the amendment,there is no clause appearing in Section 45 or,for that matter,in any other provision ofPMLA,declaring the classification(cognizable or noneognizable) of the offences created by the special statute. In this view, the continued use of the expression "eognizable" in the heading ofSeetion 45,whieh cannot be unintended,will have to be comprehended and construed in the light of overall scheme ofthe law. ^ ^ Precedents. \ < '•, n ^ •If' ' "v' ' '%

114. Thislcourt is not the first'one'called upon to interpret the provisions bfPMLA. There have been eases where the courts have S S'-, -If addressed such or similar arguments- in the context of the same legislation and, therefore, one.has the adv^tage ofjudicial view taken in sueh previous cases.,

115. The matter involved in Gduiam Kundu Vs. Directorate of Enforcement,(2015)16SCC 1, arose out ofjudgment ofthe High Court ofCalcutta declining the release on bail to the appellant, he having been arrested in a case under PMLA. The issue revolved around the application ofthe restrictions vis-a-vis release on bail as envisaged in Section 45. The court declined to interfere, inter alia, observing that PMLA is a special statute, its provisions prevailing over the general provisions of the Code of Criminal Procedure in with which Section 45 begins, as further reinforced by the declaration in Sections 65 and 71,concluding thatthe conditionsfor release on bail imposed by Section 45 are''mandatory and need to be complied with", particularly in view of the presumption under Section 24shifting the onus to prove to the contrary onthe accused.

116. The case reported as Hari Narayan Rai Vs. Union ofIndia and Anr., 2010 SCC Online Jhar 475, is one of the early cases dealing with the subjeet. A complaint under PMLA had been filed in that case. The challenge against the proceedings taken out in its wake was repelled by the Jharkhand High Court, inter alia, observing that the right to investigate under thisvspecial law was part ofits scheme,it having the'overriding effect and consequently, rendering the provision contained in Section 167(2) Cr. P.C. inapplicable. Since the issues presently raised here have no Is ^ fM W || |J '#1 it f'1^ l--% conneetion with the effect,of.Sectipn 167(2) Cr. P.C., this court refrains from making any observations on that subject. What needs to be picked up from this ruling, however, is the finding that the special law(PMLA)has its own scheme for investigation.

117. The case of Karam Singh and Ors. Vs. Union ofIndia and Anr.,2015SCC OnlineP&H1973[9],had come up before a division bench of the High Court of Punjab and Haryana with similar challenge to the registration of ECIR under PMLA and to the summons issued to the petitioners under Section 50(2)and(3). The court repelled the said challenge and dismissed the petitions, inter alia,rejeeting the contentions that the offence ofmoney-laundering of prior sanction by a Magistrate is notjustified. Noticeably, the court concluded that the offence is cognizable bearing in mind, amongst others,the plain language ofthe provisions conferring the power of arrest and the punishment prescribed by the law. It rejected the other argument based on the assumption that the offence is non-cognizable holding the special law confers the jurisdiction upon the Special Court to take cognizance which by itself cannot take away the powers ofthe authorities to investigate and arrest. The petitioners had also argued in that case that the authorities under PMLA were not scrupulously following the prescription of Chapter XII of the..Code of Criminal Procedure (relating to the information, to the.police and their powers to investigate) whiph was causing prejudice. The learned, division bench noted that the special law prescribed its own procedure. It noted, inier alia, the various provisions of PMLA and the rules ^ « -a' 5. M framed thereunder, particularly the Prevention of Money- Laundering(the forms and manner offorwarding a copy oforder of arrest of a person alongwith the Material to the Adjudicating Authority and its period ofRetention)Rules,2005. The contentions were rejected with observations that the law has prescribed a complete procedure giving ample power to the authorities prescribing the methodology of its exercise and thereby putting in position "sufficient safeguards".

118. The case of Mukesh Kumar Jai Kishan Sharma Vs. State of Gujarat and Ors., Manu/GJ/1828/2016, also involved persons arrested during the investigation of a case under PMLA. The been filed in the Special Court. Challenge was brought to the said proceedings primarily on the grounds that the procedure of investigation by police as contained in Chapter XII ofthe Code of Criminal Procedure had not been followed, particular reference in this regard being made to the provisions contained in Sections 154 and 157 relating to a cognizable offence and Section 155 relating to a non-cognizable offence (that being an argument in the alternative),as indeed the requirements ofSections 167 and 172 Cr. P.C. regarding entering ofthujproceedings relating to investigation in a case diary and its productid|ifat|the;time ofseeking remand of the person arrested."-A learnedfrsin|le judge of'the High Court of Gujaratfound no meritin the,petitions holding,inter alia,that there was nothingtshoHn on whichit couldrbc said thatsuchprqbedure of I ' I investigation applicable to the police is required to be folljiwed by the investigating agency under thds special law referririg in this '"i " A" context to the decisions of the''Supreme Court in Gautam Kundu L' A ' ' // Y.\ At ■w.jYivKfr.-'r— G ^ /"A* (supra), of Punjab andHaryana High Court in Karqm Singh (supra) and of Jharkhand High Court-in" Hari Narayan Rai (supra), - - 'u' cfUj., 7;.i 6 eventually concluding thaf PMLA is' a, complete code and its provisions would override the general law.

119. The case Dalmia Cement (Bharat) Ltd. and Ors., Vs. Assistant Director ofEnforcement Directorate and Ors., 2016 (4) ALD 47, had also come up against the backdrop of summons issued under Sections 50(2) and (3) of PMLA in an ongoing investigation. The validity of the said summons had been questioned invoking the jurisdiction of the High Court of Judicature at Hyderabad. The down Section 50 of PMLA observing, inter alia, that mere registration ofECIR would notrender any person an accused ofthe offence ofmoney-laundering,the purpose ofinvestigation being to collect evidence,issuance ofsummons requiring a person to appear and make a statement not being violative of the Constitutional protection and guarantee under Article 20(3).It may be added that the court held that investigation, adjudication and criminal prosecution underPMLA were separate stages and the case was still at the initial stage of inv||tigation~the^petitioners being obliged n ft TT mphance

120. The decistonAChhaga^&/iAdmkantiBMfbdlWs. Union of under the law to appeafinfcompliance wdthfhe"summons ^7 J' India, 2016 a division bench oftl^e High Courtof®^^p^^ga petition seeKmg|issuance of writ ofiHabeas Corpus ^liili|ili% backdrop ofinvestigation

7. 7 L ^.131]M,. _ J 7 7 undertaken bfor offence of mqneyTlaundermg. The petitioner had been arrestea\in the^^dy2^e,Qn^npri^e;-]cont^tions raised by him being that the^?acfib'if>taken was imperniissible^^sihce the offence punishable under offence,the arrest could not be effecled^wifhput^permi'ssion of the competent court, the other grounds concerning grievances that the arrest had been effected by an officer who was not duly authorised and who had not followed the procedural safeguards. The learned division bench dismissed the petition holding, inter alia, that PMLA is a complete Code which overrides the general law while rejecting the contention that by the amendment of 2005, the offence of moneylaundering had been rendered non-cognizable. The court, in fact, whether offences under PMLA are cognizable or non-cognizable because Section 19 clearly confers on the authorised officer the power to arrest any person,the exercise ofwhich power would not depend upon the issue as to whether the offence is cognizable or non-cognizable, there being no restrictions placed on such power even under the amended law. It was further held that Section 19 of PMLA does not contemplate either the registration of FIR (under Section 154 Cr.P.C.)or ofobtaining permission ofa Magistrate(or of Court)before effecting a^e^stzofcamaccused,the power ofarrest in terms of SectionJ[9] beingfriotx£[ubjeGt1(o/jany Su^ restrictions. It may be added mat«the'''contentiin§?iabout thelauthdrization of the it-i[1] tlio't- ri'QPAixVri/^''flip" arresting officer irf that case.Cand'.fhe,Tp®deedure followed by him were also rejectejlon the basis placed befor® tn'e court. ■» \\ a 'f'r-WfVf ii

121. A division bench of thisxpuij Mas also had the oc'casion to hear and form opinion vis-atylSxSiniiihf,contentions in the dontext of PMLA in a^batch (^^!iat Singh Vs. Union of Indiaf4indf>jbr,s. WP (Crl.) xvi which the applications for main petitions were decided by order^dated[3].73S201-6'f The leamed division bench noted the contentions that the provisions of the Code of Criminal Procedure goveming the investigation by police, particularly those contained in Sections 154, 155, 157, 167 and 172 had not been followed. It observed that "prima facie... it was mandatory'' for the respondents to do so and on the basis of such tentative conclusion the directions for release of the petitioners were issued.

122. With due deference to the learned division bench, it may be observed here that the views expressed in the order dated 27.04.2016 on the applications for bail in the aforesaid writ petitions do not bind this court for the simple reason such observations were ofprimafacie nature and only interim. It is trite that interim orders of this nature are not to be treated as binding precedents since there has to be a final decision for the precedentto be binding. One may quote the Supreme Court in State ofAssam Vs. Barak Upatyaka D.U. KqrfimcharLSm^tha,(2009)5SCC 694, as under: ^^ "21. Affrehedent is'mM^dMiakdecisi^nfct^ntainin^ a prinpple, which(fp^msfan^fau^horitatiye^^element termed as ratio decidendifv)AnHnterim order \$Jiich does nPt finally dkdi'ebjMdkifely decide'an issue cannot be a precedefit(:%Apy/ reasons assigned^ in support ofsuch non-^^na^M^ order containing priMafaciefindingi^^akeidply)^entative. Any interim directions is.supd^^A^Cf^jBasisfpfsuch primajfacie findings the status duoftuhmejnatter is finally/depided','to ensure that the matter^do.es'^hot-beeofneeith^emh^ or afaitaccon^^ef^^m^rM^afi^gy" WhetherPMLA offences are co2nizable?

123. It is clear from the above discussion that this court has to find from the overall scheme and plain meaning of the language employed in the law as to whether the offences under PMLA are cognizable or not and ifso,to what effect.

124. It must be recapitulated here that the scheme of PMLA, as various provisions of the statute, is to create a machinery for investigation and enforcement outside the general system of investigation of crimes by police agencies. The police officers are explicitly kept out, unless there is a specific authorisation in their behalf. The information ofa crime punishable underPMLA is taken note of by the Director (Enforcement) or the officers aiding or assisting him in the task and the investigative process taken up thereupon. Ifthere are grounds to initiate such action,the Director (or the empowered officer)jeeordsrithe^-masons in writing for the belief,noticing and.adding^hereidatlie mfterial already collected,on which such belilf isxfouhded anWTpceeds tP^prpviSipnally attach such property'' as, in hisMoiihibifi'lrifdy^ prirfia^Jacie tainted. f I Further, ifldurmg the coito^^Jn^tigation, off^lie\\basis of ^ • 1 • rl- •. 1 1- M u r •+ material imhis possession, heuias,-reason to believe the complicity ofa person!in an offence undorlEMTO is authorised by the law to proceed to. arrest him, afteH'e'cbrdiMsreasons for such belief in writing.Both recorde¥Teasohs,^ohb°ibhding;to%^^afEaphmentofthe suspect property ahdwe other%adinf'toJhe aErest;'^are to be made overto the Adjudicating'^S^^rifpw^e^ ofthe material from which inferences or conclusions had been drawn. The powers of survey, search and seizure, search ofpersons, retention ofproperty or ofrecords,to issue summons to enforce attendance ofany person and compel him to give evidence or produce records, discovery or inspection, as indeed the power to arrest, as conferred by various provisions ofPMLA on the investigative agency created by the law equip such agency with all the necessary tools to conduct an purposes of criminal prosecution, the initiative is placed in the hands of the authorities established by PMLA,the cognizance by the court mandatorily required to be on their complaint. 125.- From the above, it is clear, that the Enforcement officers under PMLA do not require the powers of police for investigation as granted by the general law contained in Chapter XII ofthe Code ofCriminal Procedure. On the contrary,to hold that the said part of Code of Criminal Procedure applies to PMLA investigations or proceedings would bring;Mm~inconsistene)t„ - in breach of the mandate of Sectio#'6i.^^PMLAf^Theryil^h in PMLA to indicate that the po^r to arrestecotiferred on^llib-"Director or the.-//, o 1% 11 Vi • 1- 1 other specifieu officers is''eontmgentmpon formal authorjsation by thecourt.Fhrtlidr,thelawdols^'dL^|it^hanyclause'from whichit II n II could be deduced that the authorization to the Director lor other u fil'IM ll specified officers to take uplilfmye^t^ation or exercise atiy ofthe powersthereby ^e courtin each case. ' \\ \K #7^ y/

126. In view it5^Tmhst'''lW''concluded that notwithstanding the deletionLi'LlslM^nf^a)'of the then existing sub section (1)of Section 45 PMLA,by the amendment of 2005, the offences under PMLA continue to be "cognizable" in the sense that a person respecting whom there is a reason to believe to be guilty for such offence may be arrested by the officer empowered by the law in terms ofSection 19 without the need ofobtaining warrant of arrest from the court. Thus,the use ofthe expression "cognizable" a yy ^ \\ w applied for general law offences (say, IPC offences) and consequently,the definition ofthe expressions "cognizable offence" and "cognizable case" as appearing in Section 2(c) Cr. P.C. would have to be read and applied mutatis mutandis with suitable modification - that is to say, by substituting the words "a police officer" and instead referring to the officers mentioned in Section 19PMLA.

SAFEGUARDS

127. As in the c?LSQS:^f^Kammr,j^Singh^^^sup and Chhagan ChandrakantBhujFal(shpral).Droughtbefdfethe^Punjab &Haryana High Court and^cflnfeay Hi|fe,CSultiTespectively^''§ubitantia focus of arguments o'fjthe petitibh|fs&here^was to bring^oifte that the general pro^tedural law, as^§||n|||i^||^in the Code of|priminal Procedure,||^ndtheauthoritaji|fe|^|bn|uncementsofthe[Supreme Court and 'various High CSufeCTmsiMbe safeguards against the misuse of %uthoifevby%^fe^^^s mv^:ti|atjn'g crimes, particularlyintn"^corifexto^BOSsibility^^bi^^^S^^^sthepower of arrest and interrbgafion|%pfi^ a?b|hrihg^ph' the fundamental rights of freedom and ruih^^nsPself-incrimination. It was submitted that the procedure must be regulated according to the classification under which the PMLA offences would fall, the investigation being impermissible in absence of registration of an FIR if the nature of the crimes is taken as cognizable, such conclusion obliging the investigating agency to abide by the requirements of Chapter XII of Cr. P.C. Conversely, it was urged must take prior approval from the court (the Magistrate) before commencing the probe or exercising the power ofarrest.

128. In the above context,reliance has been placed on the cases of Madhu Limaye Vs. State of Maharashtra, (1969) 1 SCC 292\ Bhajan Lai(supra); D.K. Basu Vs. State of West Bengal,(1997) 1 SCC 416 and Joginder Kumar Vs. State of U.P. and Ors., (1994) SCC 260, reference being made to the guidelines regulating the power ofarrest.

129. There can be no.doubTaSfto,the factThatThe law declared by the Supreme Couif; aiffl^he variOT^ pr(&6un|eihfents ofthe High Courts touchin|'udtfh*the GiremJt?peGtioh,with vShi'eh me power of ff nn t^ \\ arrest is to ne exercised by»#l0fhtrMes that be,Iras indeed the safeguardscreated bythe guiffelh^^fen^rallysetoutinthe Code of Criminal llrocedure, and sut|pfeMI|ate^li by judicial dictajcontrols k jJ'i ^ and regulates the arrest procedit^Si,a[n,dtne detention thatfollows in such wake,%esp4^l£:alil^^#^|^ 9^cems an investigation iri%"^^^C^.oJfence or a^erimd^ittmd'ejy^^ laws. The arrestofa persBi]^^^^^ii^^$c!i|ii9^ssince it deprives him of personal liberty toucEing^updh"liis fundamental rights as guaranteed under the Constitution which,it is trite, cannot be taken away except by following, and in accordance with, due procedure of law. The obligations under the relevant provisions of law as enacted by the legislature or as declared by the Constitutional courts regulate the conduct not only of police but also other investigative agencies under special legislations. This undoubtedly holds good heretofore or hereinafter in this judgment, therefore, is to be construed as in any manner diluting the rights of every person guaranteed under the law of the land to the fair procedure in the matter ofinvestigation or arrest.

130. The Code of Criminal Procedure does not define the expression "accused". The term is generally understood to connote a person suspected ofhaving infringed the law for which he is liable to be convicted and subjected to punishment.In contrast to a person who stands convicted(upjpnihis'guilt ha^ng.been proved),a person referred to as an accusedls'yn^'"^agaihsl/whorhL^accusations have /V \ //)) been made, of the-prpjeeiings takefi<dut Being to prove andsubstantiatedhesame.^t^fs^^endeavour which^isUndertaken in two stages,ffre first beinglplh^ipgation and the'^'secdnd,being oftrial. In kA^.Rishhud VsMy^oJlMelhi,(1955)I SCR\1150,in \1 if I| the contextofgeneral criminalilaw,it^was explained that: // "...under 0o00s-^.genefully of the fdllowing;.steps: [ijrr6ceed0gf0^ejfspot, (2) Ascertainfpe^f;^oj^ftei:^(3tcpis!^mj^ird^^ of the case, (3) wpreit^pfyihe suspected offender, (4) Cdllmti8nppj^y)ddehPe relating to the commission ofthe offence which may consist of(a)the examination ofvariouspersons(including the accused) and the reduction oftheirstatements into writing, ifthe officer thinksfit, (b) the search ofplaces or seizure of things considered necessaryfor the investigation and to be produced at the trial, and (5) Formation ofthe opinion as to whether on the material collected there is a case to place the accused before a Magistratefor trial and ifso taking the necessary stepsfor the same by thefiling ofa charge-sheet under Section 173..." \

131. The above observations hold good qua all criminal investigations though, it must be added in the context of special law offences the same will have to be read mutatis mutandis. Thus, in special legislations if the cognizance is to be taken not on a police report but on a complaint, there would be no occasion for filing of chargesheet under Section 173 Cr. PC. Necessarily, the same would apply to a prosecution even for IPG offence,ifinitiated through the complaint mechanism.

132. Article 20 of the,Coh^i®mf~df?:India guarantees certain protections in resj^q'et offonvittiotffor^opnqeSHn^ against doublejeopardy<'Ai|iele"20(3')p^ar&tfes that person accused i'" % ofany offence sKafl be cdf^mM<i6'tk'a-witness'hgUr^t himself. These fund^meiital rights iM&dMgi|g^inst self-incrimihation are II available td, all persons facihgi^rlmihll charge, whether linder the il • !i general law\Tepresented by IPJl^r unddmthe special statutes. But,it is well settled that to claina^rofec^ionlbjArticlq.20(3),.'^^ person X\ ' X.itgsfiejSSki-i'S—- ' >> // should be an accused ofan offence. Formarapeusafidn ofa person is generally neces^shi^--tp%akeiKim\am|a^cused.<sWhether or not a person is an accused depend^n^^faets^hd circumstances ofthe case and the stage of the process of investigation or the law goveming the same.

735. In Ramesh Chandra Mehta (supra), decided by a Constitution bench, the case pertained to offences, inter alia, punishable under Sea Customs Act, 1878 which was later repealed and replaced by the Customs Act, 1962. Under some provisions recorded by the Customs officer which were sought to be tendered in evidence in the eourt,their admissibility having been questioned on the ground the officer ofeustoms was a police officer within the meaning of Section 25 of the Evidence Act, rendering such statement to be unavailable. The contentions were rejected with the observations that the Customs officer was not a police officer nor was he empowered to do or had undertaken investigation into anoffence, the purpose of inquiry embarked upon by him being to prevent smuggling and atjhe-sStage^oEcoUecting evidence in the course ofsuch probe he was^nd| |cbcising the.,person ofany offence. It is on this reasoning tliit the statenient recorded by such officer of the Customs was^held to be'^adihissiblfe''OU the grPund t^t the law permitted him^fo examineyfany;.p&Von" who is "suspected or believed tq|be concerned in^suoh^acfiyity. Reference has already fl 5;v! i! been madeIp the cases reported,as (supra);State offunjab v. ^ \ B Barkat Ram (supra); and lOm Prakash v. Union ofIndia (supra) where similar views were taken. -^'AC // 'N^. \"1.A)#- 6::;^- V -4'' -Ay"

134. The decision in Poblpflndi q^d- Ors: VsfSuperintendent, CentralExcise and Ors.,(I9Sif)z3l^£^r25P;rendered by a bench of three Hon'ble Judges coneemed investigation undertaken in terms of the provisions of the Customs Act, 1962 and the Foreign Exchange Regulation Act, 1973 ("FERA"), the last legislation having since been repealed and replaced by Foreign Exchange Management Aet, 1999 ("FEMA"). Questions were raised concerning violation of Constitutional protection under Article 20(3)vis-a-vis the mandate in Section 108(3)ofthe Customs Aet. v\^ Ramesh Chandra Mehta (supra), Illias (supra) and Nandini Satpathy Vs. P.L Dani,(1978)2SCO 424. It was observed that the protection against self-incrimination in Article 20(3)would not inure vis-a-vis a ^^hypothetical person who may in the future be discovered to have been guilty ofsome offence".

135. Noticeably,in Poolbandi(supra)exception was also taken to the summoning ofa person bythe Customs officer for recording his statement during the inquiry under the law, the contention being that this was violative ofthe ConstMtibnal right guaranteed under Article 21 and amdtinted to imentll torture. Similar submissions ■" have been made by the petitioners"b^e^ore this"court on the ground,,, 'C f 'f \\ they apprehend.harassmefit;of'.unlawful/detention.Rejecting the plea that the petitioner at the.time'Of^/his appearance for statement a < f's f / before the Customs officer be- givjen^the liberty of havingjpmpany ofhis choice during questionmg, the/court observed thus.-.V, / } ^ If f. ^ "...The purposeyofthefen'qiiipyiundertheJTustoms Act and the, bth^ry'similar' statutes ^ will fbe[7] completely frustrated if the wmfn&zof^fhe persons in possession of useful informationfor,th^departments'are allowed to prevail. For achieving tKetobject-of such an enquiry if the appropriate authorities be of the view that such persons should be dissociatedfrom the atmosphere and the company ofpersons who provide encouragement to them in adopting a non-cooperative attitude to the machineries of law, there cannot be any legitimate objection in depriving them of such company. The relevant provisions of the Constitution in this regard have to be construed in the spirit they were made and the benefits thereunder should not be "expanded" to favour exploiters engagedin tax evasion at the cost of V reasonable test' we hold that there is no merit in the stand ofappellant before us."

136. In CentralBureau ofInvestigation Vs. State ofRajasthan and Ors.,(1996)9SCC 735,the prime contentions werethatthe offence under FERA which was subject matter of investigation was noncognizable and there was a need for formal permission under Section 155(2)Cr.P.C.to be obtained from the court ofMagistrate. This contention and request having been rejected by the Chief Judicial Magistrate, a view upheld by the High Court in the challenge brought before it,.-was^^miterated before the Supreme ifi a. Court. While dismissing the appeal,^the courtruled thus; "28.J'FEKA iS(..aXspecidl■^•.digislatidn relating to regfiafion offoreign exchapge.)FERA is also ctCentral le^slcdton enacted*dt\dfq{en^point of time tltm the DSPE Act which was. enacted in 1946. In oum view, Sdhtions 4 and 5 ofthe'Code ofCriminalProcedufe will not come in aidofthe investigation ofthe offenceMunder 11 -i' v.«/s"5«.vi, fl FERA by a member.nfpolicesforce,like an officer of DSPE in accordance^oEthe.CriminalProcedure Code. Sections 4I^and 5 of the Code cffCriminal Procedure provide that m the absence of any prdyisiph regulating investigation,7.inquiry or 4ridl\of "non-IPC offences i.e. offences under any otherddw, the investigation, inquiry and trial shall be in accordance with the Code of CriminalProcedure. But FERA is a self-contained code containing comprehensive provisions of investigation, inquiry and trialfor the offences under that Act. The provisions under FERA givespower to the officers ofthe Directorate of Enforcement or other officers duly authorised by the Central Government under FERA to search, confiscate, recover, arrest, record statements of witnesses, etc. FERA containsprovisionsfor trial of the offences under FERA and imposition ofpunishmentfor V\ trial and imposition ofpunishmentfor offences under FERA, Section 5 ofthe Code ofCriminal Procedure is notapplicable in respectofoffences underFERA..."

137. The. decision in Directorate of Enforcement Vs. Deepak Mahajan andAnr.,(1994)3SCC440,also concerned the procedure governing a person arrested under Section 35(1)FERA which was in part materia with Section 104(1)ofthe Customs Act. The court noted that the scheme ofboth the legislations was more or less the same,the provisions relating to arrest and production ofthe arrestee before Magistrate identical?' It was observed that the "proper officer" referred in;sVariou's provisions ofthe Qustoms Act denoted.<•/ i-l '' -ly-^ ^ r, r. 1 an officer ofthe Gu^oms assigned^to perform theMunctions under n;;; A k ' c the law and wouldmot includeTofficers"offtne police andjtherefore, jS ^ the police offic^ers had no independent,jole to play"in exercise of If A.l''A<. 1' powers under the Customs Actas infSections 45 and 46 ofFERA. j f' iMh While observing that "conclusionsji(had)>.to be drawn which are in / 3''f\'if,1,ij „ -0 the tenor ofthe law thoughfidtfyithinfhe letter,ofthe Ic^" and for -- - - - - >• /#' this the matter required to be considered'' the purposeful meaning ofthe language.deployedCthe spirit and sense which the legislature has aimedz.and4ntended to convey",and while rejecting the argument of possible breach of fundamental right under Article 20(3), this with reference to decisions in Ramesh Chandra Mehta (supra),Poolbandi(supra) and Veera Ibrahim Vs. State of Maharashtra, 1976 Crl. L.J. 860, it was held that the procedural requirements of the Code of Criminal Procedure particularly under Section 167(2)or under Section 173 Cr.P.C were not applicable and that, under the provisions of the said special \ Customs Officer is not empowered with the power ofinvestigation though not with thepower offiling afinalreportas in the case ofa police officer".

138. The case of Nandini Satpathy (supra) referred to in the decision of Poolbandi (supra) is locus classicus in which the expression "any person" as appearing in Section 161 Cr.P.C.came to be construed, in the context, inter alia, of the guarantee under Article 20(3) against self-incrimination. The procedural law, by Section 160 Cr. P.C.,..enspoVers^ a p officer making an investigation, to require'ifhe a&dan'ce pf any such person as appears to be acquainted with the^'facts and circumstances of the case making It obligatory fqr^such person to atteridmpon being so / n V'" * ' % required. Sqction l61 Cr.P.C.^which,Tails in the Chapter XII ofCr. i'j V "^ '1 P.C. relating to the powers bf'pol'iceUo investigate reads, to the extentrelewnthere,asunder/ ^ I r 'if "161 Examinafori *ofy^itne^sspsL by,police - (g) Any, police officer ^making an'investigation,:undkr this Chapter, or any police officer not,below such rank as the State Governmentmaypby'ginefalorspecialorder, prescribe in this behalf Jactifig,,on' the requisition of such officer, may examine orally any person supposed to be acquainted with thefacts and circumstances of the case".

139. The moot question considered by the court was as to whether the police have the power under Sections 160 and 161 Cr.P.C."to question aperson who, then was or, in thefuture may incarnate as, an accused person". Referring to earlier decisions reported as Pakala Narayana Swami Vs. Emperor, AIR 1939 PC 47 and Mahabir Mandal Vs. State ofBihar,(1972) 1 SCC 748, the court ruled thus: "36.... We hold that "any person supposed to be acquainted with the facts and circumstances ofthe case" includes an accused person who fills that role because the policesumose him to have committed the crime and must, therefore, be familiar with the facts. The supposition may later prove a fiction but that does not revel the section.... Moreover, the suppositions accusedfiguresfunctionally as a witness. "To be a witness",from afunctional angle, is to impart knowledge in respect ofa relevantfact, and that is precisely the purpose^pf^questionm^dhe accused under Section 161 CrPC. The \dichbto}ny:'bePyeen."witnesses" and "accused"'used)as 'terms ofart, does"not hold good here...,fhe<f-appellantfsquarely fell 'within the interrosatfonai ^rins. fok^Mold'o'therwise is to K$id up investigative.^exercise,'-since fauestionins: susyech is desirable for*detection ofcrime^md even protection ofthe accused!Extreme positions^may Bdomerans in law as in politics^ I A (emphasis supplied) A - %" f' '* V 1nn I d

140. It is not correctXto contend'that'.investigation under PMLA dehors the procedure hfescrihed Tor'policeAinvestigatibn under the V"'.., •\"'k '-I.. general criminal law (Chapter XII of-Cr.P.G.) would denude the ij '",1' process ofcrucial safeguards rendering it unfair or prone to misuse. References made particularly to the need for registration of FIR (under Section 154 in the case of cognizable offence and under Section 155 in case of non-cognizable offence), communication of copy ofFIR to the Magistrate (under Section 157)or obtaining of his authorization for investigation (under Section 155), besides mandatory maintenance of investigation file (case diary) in the prescribed format and its production at the time ofseeking remand •/ report on completion of investigation (under Section 173) are irrelevant in the case ofinvestigation by empowered officers under PMLA. Same is the case of provisions contained in Section 162 Cr.P.C. or Section 25 ofthe Evidence Act generally prohibiting use n as evidence ofstatements made by an accused(or a suspect)to the police,

141. The Enforcement officers empowered by PMLA to make investigation into the offences under the said law are not to be equated with police offieersf^TheTaw confers upon them requisite lo|'"jr ^ powers to carry out investigmffi? dndlebllect evidence. The said " power includes the power to issue summons t6''"4nyjjerson" whose attendance -is • e6nsidered'/^""«ece5'.?a^''' and \ompelling his '"f'TV H'\ "ft attendance,fwhether to ^^give<evj,de/ice",or to "produce anyXrecords" and to exarnine him "on oath"-,m terms ofSection 50(2)and(3),or I ^ to put any person under arrest^without.warrant)upon satisfaction as Vn.. \ ^ '1, N _ V to his complicity. These powers necessary,for inyestigation do not 1 /' i ^ ^ 1 ' ' '',ft ', '/ render the authorities under PMLA sanje/as police.,'the general guidelines governing the arrest procedure,-as envisaged in the Code of Criminal Procedure or in terms bf judicial dicta, control the exercise ofsuch power by them. The fundamental rights relating to criminal prosecutions,in general,and against self-incrimination,in particular,are notdenied here. Similarly,the rights guaranteed to an arrestee including for authorization for continued detention as per the general criminal law continue to regulate and,for this purpose. Section 167 Cr.P.C. continues to apply mutatis mutandis, all references pertaining to the police or their procedure for investigation to be read appropriately modified in relation to officers empowered byPMLA to investigate.

142. There are safeguards available under this special law (PMLA) which correspond in equal measure to the safeguards under the general law some ofwhich are represented by the above quoted provisions ofCr.P.C. Some ofthe safeguards underPMLA may be highlighted as under:,(i) No action affecting the rights ofany person to property may be initiated on imfouhded suspicion." The.Director(or Deputy Director) must haye'^'material itv his possession" and must 'i-f- -'' \record reasons writin2"^S6xforming beliefabout a person v'T' having iri::his possessionjprp'q6eds of crime^ or about their I' if possible use or retentiqn'bbfore he can lawfully prpceed to U M;j fl 't if l: havefsuch property attacj^e;dlMr|adjudication or confiscation. Jm 111 [Section5(1)] | ( (ii) A provisional'attachmenbhrdeflMprdpe^^ generally be ordert!|'iri/base it is susjgegted toi^be proceeds of a......... scheduled ofmncfei^ffllFilfie^^iic'e'investigation in such regard has been concluded'dffd^a report already submitted, [first proviso to Section 5(1)]

(iii) The officer directing provisional attachment ofa property is obliged by the law to reportthe factto a superior independent statutory authority(Adjudicating Authority) by making over to it, in confidence,copy ofthe material,the recorded reasons and connected proceedings, such authority, in turn, being the procedure and period prescribed by the Rules being such as to ensure transparency and accountability. [Section 5(2) read with corresponding Rules]

(iv) No action affecting the rights of any person to personal liberty may be initiated on unfounded suspicion. Before making arrest ofany person,the Director(or other specified officer) must have material in his possession" and must record reasons "in writing" for forming belief about such person being guilty of anEOffence under PMLA.[Section 19(1)] n ill,:;- I' 4

(v) The fimdattientafright gu^^leed by Article 22(4)is ensured as the-fiersorf arrestedlutidenRMEA investigatioh\4s entitled in law toV^be inforntedvlpf^MilxigrownJ^ for-such arrest". I n' I [Section19(1)] |

(vi) The sirresting officer is,,obliged,byfhe law to reportthe factto the superior independent/statutory- authority (Adjudicating Authority^) by-making'over to'it, in copfidehcei copy ofthe material, the.recorded reasons-'and-connected proceedings, "" ^ vT-'v'i such authority,ih'tumTbeing obliged-bylaw to retain the said record in its safe custody, the procedure and period prescribed by the Rules being such as to ensure transparency and accountability. [Section 19(2) read with corresponding Rules]

(vii) The fundamental right guaranteed by Article 22(2)is ensured since the arresting officer is obliged by the law not to detain j the arrestee for more than twenty-four hours, that being the period within which he must be taken before the jurisdietional Judicial Magistrate.[Section 19(3)]

(viii) The proceedings before the Judicial Magistrate upon the arrestee being produced in terms of Section 19(3)place the issue of continued detention beyond twenty-four hours, or entitlement to release on bail, in the hands of a judicial authority, such proceedings being guided generally by Section 167 Cr.P.C., to be applied to the extent not inconsistent with PIj^A^^^iid^^tbe^estrictions against such release on

(ix) It is that while appiyin'g rnil'd to tt^^0&&ttat^|for con'tlrmellidetention, and,4ons^uent deni'll^f^rMease on bailf"T;he\ judicial auth^itywouldhave^^^meconsiderations on which suchWrtherdetentionisidnfe^dunderthegeneral!criminal \\. // 1, procedure, such=^tscrutiny^|(ihplhding> thc't-issue as to whether "the accusation t:;br Hrl0rM^n is"wiU.^f0^nded" and "adequate continued detention for comple|ibrF0f4nvg|igatf6h,satisfaction m such regard being upon perusal of the record of investigation, it always being mandatory for the person arrested to be physically brought before such Magistrate. [Section 167 Cr.P.C.] CONCLUSIONS

143. It is clear from the above discussion that the Prevention of Money-Laundering Act,2002 is a complete Code which overrides establishes its own enforcement machinery and other authorities with adjudicatory powers and jurisdiction. The enforcement machinery is conferred with the power and jurisdiction for investigation, such powers being quite exhaustive to assure effective investigation and with built-in safeguards to ensure fairness, transparency and accountability at all stages. The powers conferred on the enforcement officers for purposes ofcomplete and effective investigation include the power to summon and examine "any person". The law declares.that-every such person who is summoned is bound to state s.the! truth. At the time of such investigative process, the persdn'sq^nmoned-isr n an accused. Mere registration^ofECIR-does not'make a person an accused. He.V '*. may eventuallyturn out toibq^an'.accfe upon being a^ested or upon being,'prosecuted. No pbfson,is-'entitled in law to evade the li. 'I command of the summons issiipd tinder Section 50 PMIiA on the \\ f-A; \v; /; ground thatthere is a-possjbilit^ThatEe may-be prosecuted in the 1 •'t' ^ -1.', ^ future. The law declared-in NanditiiSatpathy,(supra)concerning the statements under Section 161 Cr.RC.recorded by the police,and in other pronouncements cbnceming-simiiar..powers of officers ofthe Customs Department,as noted earlier,provide a complete answer to the apprehensions that have been expressed.

144. There is no requirement in law that an officer empowered by PMLA may not take up investigation of a PMLA offence or may not arrest any person as permitted by its provisions without obtaining authorization from the court. Such inhibitions cannot be read into the law bythe court.

145. The prime argumentofthe petitioners is ofpolitical vendetta. This argumentis not supported by any material. These proceedings are not the appropriate forum for the court to examine such plea which,in the interest ofthe petitioners themselves, must be left for itto be pressed,ifthey were so advised and ifthey have material to substantiate the same,at some appropriate stage in future. Suffice it to observe in this context,and at this stage,that those in public life are expected to be open to probity. Higher the position in life (or polity),higher the obhgationj^morafHf-nptlegal)to be accountable. Endeavours to stall/investigation iint^heir affairs by the law enforcement agencies, particularly'on technical'grounds, have the potency ofgiving,the impression thaf;thereis somethingto hide.

146. There;is nothing sho-\yp4o^thej.coprt from which ifeould be inferred thiit the issuance of/sunimdns by the respondenis to the petitioners for investigationTnto the^cCIR,in exercise ofstatutory \\ Af" "".'J' \ ' powers, has'caused,'or'hasftlie/effect,of causing, any prejudice to any ofthem. / \v v''.- a;-'"'A '/

147. The petitions are''Tduhd /devoid of substance and, consequently,dismissed with allpending applications.

JUDGE JULY 03,2017 vk/yg