Period Of House Arrest Can Be Taken Into Consideration While Calculating Total Period Of Custody: Bombay High Court

A division bench of Justice AS Gadkari and Justice Shyam C Chandak granted bail to one Mohammed Farooq Shaikh, who has been in custody for over 5 years and 8 months, including over 4 years of house arrest.

“Mr. Venegavkar, learned counsel for the Respondent No.1-ED submitted that, the period of house arrest cannot be taken into consideration for computing the total period of custody of the Petitioner and it needs to be excluded. We are not in agreement with the learned counsel, as according to us house arrest is ultimately arrest of person, whereby his liberty to be a free person is ultimately curtailed by operation of law”, the court observed.

Shaikh is booked for the offence under Section 3 (money laundering) of the Prevention of Money Laundering Act, 2002 ("PMLA"). The court was dealing with his writ petition seeking quashing of the case.

Shaikh was arrested on April 23, 2018. His bail application was rejected by a Single Judge of the High Court on August 10, 2018. He filed a writ petition before a Division Bench. On June 6, 2019, the Division Bench directed that Shaikh be placed under house arrest. This interim relief was extended on June 25, 2019. The Supreme Court, in Enforcement Directorate's ("ED") appeal, did not disturb the house arrest orders and Shaikh continued to be in house arrest.

Shaikh argued that the offence under Section 3 of PMLA carries a maximum sentence of 7 years and he has already been in custody for 5 years and 8 months.

The ED contested the inclusion of the house arrest period in the computation of Shaikh's total custody. The court, however, disagreed, asserting that house arrest is a form of arrest, ultimately restricting an individual's liberty.

The court reiterated that prolonged custody without trial amounts to a violation of an accused person's right to personal liberty. Citing Supreme Court's judgment in Union of India v. KA Najeeb (2021), it was emphasized that the presence of statutory restrictions does not negate constitutional courts' ability to grant bail on grounds of fundamental rights' violation.

The court noted that Shaikh has been in custody for more than 5 years and 8 months without the framing of charges. Considering the bleak likelihood of completing the trial within a reasonable time, and the fact that he has already undergone 3/4 of his maximum sentence, if convicted and sentenced for 7 years, the court ordered his release on bail during the pendency of the petition.

Senior Advocate Rajiv Chavan along with advocates Pravin Bhoi and Shweta R Rathod i/by Elixir Legal Services represented the Petitioner (Shaikh)

Advocates Hiten Venegavkar and Aayush Kedia represented ED

APP Mahalakshmi Ganpathy represented the State

Case No.: Criminal Writ Petition No. 1153 of 2023

Case Title: Mohammed Farooq Mohamemed Hanif Shaikh @ Farooqe Shaikh v. The Deputy Director & Anr.