Should A Person Be Deemed To Be Arrested From The Time His Liberty Is Curtailed When Formal Arrest Is Recorded Later? Supreme Court To Consider

Recently, the Supreme Court issued notice in a plea challenging the legality of arrest of a person by the Enforcement Directorate who was summoned for interrogation late night and arrested the next morning while in confinement of the authorities. The main question that arose was whether the moment a person's liberty is confined by the authroities , it could be deemed as an official arrest, irrespective of the timing recorded in the arrest memo. 

The bench of Justices Hrishikesh Roy and Prashant Kumar Mishra was hearing a challenge against Bombay High Court's order upholding the legality of the petitioner's arrest by the Enforcement Directorate.  While the  impugned order deprecated the conduct of ED in recording statements of the summoned person at late hours of the night, thus violating his right to sleep, it however concluded that the petitioner was not in custody when he entered the ED office under the summons.

The petitioner was summoned by the ED at its office in Delhi at 10:30 AM on August 7, 2023. The senior counsel submitted that the petitioner's mobile phone was taken away and he was then subjected to intensive interrogation. The petitioner was represented by Senior Advocate Mr Kapil Sibal. 

It was pointed out that though he was in confinement of the officers of the ED since 10:30 AM of 7.8.23, the petitioner was shown as arrested only at 5:30 AM the next day i.e., 08.08.2023.  This, Mr Sibal argued was a blatant violation of Article 22(2) of the Constitution which provides that a person arrested and detained in custody is to be produced before the Magistrate as soon as possible. 

It was emphasized by Mr Sibal that it has been ruled by various High Courts that the a person is assumed to be arrested from the moment his liberty is curtailed and the official time of arrest as reflected in the investing agency's arrest memo is immaterial. 

He informed the bench that the larger question of law regarding from when a person should be deemed to be arrested is pending before the Supreme Court in the case  ED v. Pranav Gupta SLP(Crl) No. 003214 - 003215 / 2024. This is a petition filed by the ED against the judgment of the the High Court of Punjab & Haryana ordering the release of two directors of a Pharma Company, observing that taking the accused persons in custody (unlawful restraint) without an official arrest memo will be counted as the day of the arrest and they are required to be informed about the ground of arrest on that day itself. The High Court further added that not furnishing the grounds of arrest on the day of custody will be violative of the mandatory provision of Section 19 of the Prevention of Money Laundering Act, 2002 (PMLA). 

Mr Sibal drew attention of the court to various orders of the High Courts on the issues of restraint of personal liberty by the ED during investigations. These included Punjab and Haryana High Court's decisions in Pranav Gupta v. Union of India  and Dilbag Singh v. Union of India .   

Background  

Before the bench of Justices Revati Mohite Dere and Manjusha Deshpande of the Bombay High Court, the petitioner claimed that he was made to wait in the office of the ED and his statement was recorded from 10:30 am till 3:00 am. He alleged that he was interrogated all night despite being medically unfit, violating his fundamental right to sleep. The High Court deprecated the late-night recording of the petitioner's statement, which continued until 3:30 am. It highlighted that under Section 50 of the PMLA, a summoned person is not necessarily an accused but could be a witness or someone associated with the offense being investigated.

The impugned order stressed that investigation under the PMLA differs from that under the CrPC and stated that statements under Section 50 should be recorded during reasonable hours, respecting the individual's right to sleep. The court noted that the petitioner had previously cooperated with investigations and could have been summoned on a different day. 

The bench directed the ED to issue guidelines for recording statements under Section 50 of the PMLA, ensuring respect for individuals' basic human rights.

“Consent is immaterial. Recording of statement, at unearthly hours, definitely results in deprivation of a person's sleep, a basic human right of an individual. We disapprove this practice. Thus, we deem it appropriate to direct the ED to issue a circular/directions, as to the timings, for recording of statements, when summons under Section 50 of the PMLA are issued, having regard to what is observed by us hereinabove.” 

From the timeline of events, the court concluded that the petitioner was not in custody when he entered the ED office under the summons. It held that the petitioner became an accused only upon his arrest and was produced before the court within 24 hours, even considering travel time.

Regarding the requirement to produce the petitioner before the nearest magistrate, the court clarified that it applies in situations where it's impossible to produce the accused before the jurisdictional magistrate within 24 hours. 

Case Details : RAM KOTUMAL ISSRANI v. DIRECTORATE OF ENFORCEMENT & ANR. Special Leave to Appeal (Crl.) No(s).6181/2024 

Click here to read the order