Embraer Defence Deal: Delhi Court Slams ED For Arresting Singapore Businessman Without Permission, Orders Interim Release

A Delhi Court on Thursday rapped the Enforcement Directorate for arresting a Singapore-based businessman at Kolkata airport without its permission in a money laundering case connected to the alleged employment of agents by Embraer for facilitating contract for Airborne Early Warning & Control (AEW&C) Project with DRDO for procurement of 3-fully modified EMB-145 aircrafts in 2008.

Dev Inder Bhalla, Director of Interdev Aviations Services, is an accused in the case and was intercepted by immigration authorities at Kolkata airport on February 13 night. Subsequently, the pending NBWs were executed against him by the ED on February 14. Producing the accused before a Rouse Avenue Court in Delhi, the counsel representing the ED submitted that there is a strong case for custodial interrogation of the accused. 

Advocate Sakshi Kakkar, representing the accused, submitted that Bhalla had never received any summons to join the investigation and the NBWs were taken after misleading the court. It was also submitted that arrest of the accused is totally illegal as Section 19 of the PMLA Act has not been complied with and the grounds of arrest were not informed to the accused. 

Special Judge Anil Antil in the order said that a PMLA complaint in the matter was filed in December 2020 after carrying out due investigation against the accused including Bhalla. The court added that cognisance of the case was taken in March 2021 and summons were also issued to the accused.

"It may also be noted that subsequent thereto when the summons had remained unserved for one reasons or the other; fresh summons were issued by the court; the applications were also moved on behalf of the IO and agencies to seek fresh summons to serve the accused persons including the accused No. 11," the court said.

Continuing, it said, "So, when after the carrying out the investigation, complaint/chargesheet has been filed against the accused herein; cognizance of the offences has been taken; summons have been issued pursuant to that, the Act of the agency in apprehending/arresting the accused without permission of the Court, and/or seeking his PC remand is totally un-justified in the given facts and circumstances of the case."

The judge further said that when summons have been issued against the accused persons, then it does not lie within the powers of the investigating agency to arrest the accused persons and seek their custody remand simply on the ground that further investigation qua the accused was pending.

"The said plea appears to be routinely mentioned in a case of each in the complaint so filed, and the agency in my view cannot seek their police custody during further investigation of the case at hand," said Additional Sessions Judge Antil.

The court said acceding to the request of the agency would tantamount to relegating the accused to stage of pre-cognisance which it said is impermissible in law. 

"In a given case, if the accused may intend to appear before the court to attend trial or the accused is present in person in the court along with his surety pursuant to the summons issued to him in that situation, can the agency still arrest him merely by stating that his PC remand is required at this stage, ; and/or may be the accused is on interim bail or seeking regular bail by moving such applications, can the agency say that NBWs that were taken prior to filing of the charge sheet / complaint case on which cognizance has already been taken and the said accused has been summoned by the court pursuant thereto, and still arrest him and seek his PC, I would absolutely say No. It is not justified and permissible as per the provisions of the Cr.P.C. It is only judicial custody thereafter in the facts and circumstances of each case."

The court said that NBWs were issued against the accused by the court during investigation to procure his attendance or presence during the probe but thereafter the investigation was duly carried out and a complaint was also filed. 

"Thereby, the IO was duty bound to handover the unexecuted NBW's so issued to the Court at the time of filing the complaint in the present matter, which has not done by the department for the plausible reasons best known to them, nor the said fact was apprised to the Court at that time or even thereafter," it added.

The court also recorded that the agency candidly admitted to the fact that no steps whatsoever were taken by it after NBWs were taken from the court in January 2018. "Even otherwise also, the proper recourse available to the agency was to handover the said NBWs outstanding against the accused as and when it came to their knowledge, and the act of the agency apprehending the accused in terms of said NBWs is not justified," it added.

Ruling that the agency was not legally empowered to arrest the accused without the indulgence of the court nor was is it now empowered to legally seek custody remand at this stage of case, the court said:

"The agency cannot act in a camouflage manner to arrest the accused herein. At one hand they are carrying summons to execute them for his appearance and at the same time they are also taking aid of the NBWs to justify their arrest."

Dismissing the application seeking custody remand of the accused, the court said the accused is entitled to be released forthwith.

"Further, since the accused is present in the court; the summons have been issued to him for his appearance by the court; the next date of hearing fixed in the matter is 24.02.2023, the prosecution is directed to provide complete set of complaint and documents to the accused within two days from today, and since he was forwarded to face trial without arrest in terms of the complaint so filed by the agency, I deem it appropriate and justified to release him on interim bail till the next date of hearing of the case ie. 24.02.2023," said the court.