ED Interrogations Lasting 14 Hrs "Not Heroic", Violate Human Dignity: Punjab & Haryana HC While Declaring Congress MLA's Arrest Illegal

The Punjab and Haryana High Court today asked the Enforcement Directorate to take remedial measures and sensitize its officers to follow some "reasonable time limit" for interrogations of suspects under PMLA, in one go.

Justice Mahabir Singh Sindhu said ED interrogation lasting for upto 15 hours in this case "is not heroic...rather it is against the dignity of a human being."

For future, the Court directed the ED to observe the mandate of right to life and liberty, which includes right to dignity, under Article 21 of the Constitution. "It would be appreciated if some necessary mechanism is put in place for fair investigation of the accused as per basic human rights laid down by the United Nations Organization (UNO), instead of meting out unnecessary harassment, for such a longer duration at one stretch for a given day," it said.

The observations were made while declaring the ED arrest of Congress's Sonipat candidate for upcoming Haryana Assembly election and currently an MLA- Surender Panwar as "illegal". Court noted that Panwar was constantly interrogated for 14 hours and 40 mins on July 19, in connection with alleged illegal mining and fabricating e-rawana bills. An ECIR was also recorded on the basis 8 FIRs pertaining to a fraud case.

Another ground of arrest shown by the ED was FIR filed under Section 21(1) of Mines and Minerals (Regulation of Development) Act 1957, Sections 15 and 16 of Environment Protection Act, 1986 and Sections 120-B and 420 of IPC, against various entities and firms.

Senior counsel for Panwar argued that he was neither named in the alleged 08 FIRs on the basis of which present ECIR is registered; nor is he named in the subsequent 09th FIR. He questioned the timing of ED arrest, pointing that the Haryana assembly elections are just around the corner.

After examining the submissions, the Court noted that ED had tried to implicate Panwar on the premise that he is the Director of a company, which is beneficiary of alleged illegal mining. However, it noted "there is no material to substantiate that petitioner is either the Director of said company; or a person in-charge of the affairs of the company, rather the information obtained from the website of Ministry of Corporate Affairs clearly indicates that petitioner ceased to be the Director of DSPL w.e.f. 07.11.2013."

Justice Sindhu highlighted that the foundation of case is “illegal mining” but, the same is not a scheduled offence under the PMLA; hence, prima facie, Panwar cannot be prosecuted on that count.

The Court also noted that two co-accused in the case who were named in the FIR had challenged their arrest by ED and the High Court in February had quashed the same being in violation of Section 19 of Act.

It also pointed that the offence under the Environment Protection Act, 1986 was deleted from scheduled offence under PMLA by way of an Amendment in 2023.

In light of the above, the bench added that as on today, prima facie, there is no material with the ED to substantiate that Panwar has "directly or indirectly", indulged in any process or activity connected with the proceeds of crime.

The Court rejected the contention of ED that once the initial arrest has been sanctified by judicial orders, Panwar cannot challenge the legality of the arrest later on. Court cited the legal maxim “Sublato Fundamento Cadit Opus”, which means that once foundation is removed, the superstructure will also fall.

Reliance was placed on Chairman-cum-Managing Director Coal India Limited and others v. Ananta Saha and others (2011) to underscore that if initial action is not in consonance with law, subsequent proceedings would not sanctify the same.

In the light of the above, the Court set aside the arrest order as well as “grounds of arrest” along with the remand order passed by the Special Judge.

Mr. R.S. Cheema, Senior Advocate with Ms. Tanu Bedi, Advocate, Mr. Sanjay Suri, Advocate,

Mr. Arshdeep Singh Cheema, Advocate, Mr. Satish Sharma, Advocate, for the petitioner.

Mr. Zoheb Hossain, Special Counsel, ED (through VC) and Mr. Lokesh Narang, Sr. Panel Counsel, for the respondent.

Title: Surender Panwar v. Directorate of Enforcement

Click here to read/download the order