Supreme Court Questions ED For Recording Statement Of Accused At 3.30 In Night

“You call him at 10:30 in the morning. We will consider that as of now the time of arrest is the actual arrest but 3:30 in the night?...We are on this timing.,” said Justice K.V. Viswanathan.

The main question for the Court's adjudication was whether the moment a person's liberty is confined by the authorities, it could be deemed as an official arrest, irrespective of the timing recorded in the arrest memo.

The genesis of the present legal challenge lies in the impugned order passed by the Bombay High Court's upholding the legality of the said arrest. While the 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.

It is the petitioner's case that he was summoned by the ED at its office in Delhi at 10:30 AM on August 7, 2023. Further, his phone was taken away and he was then subjected to intensive interrogation.

Previously, the Bench of Justices Hrishikesh Roy and Prashant Kumar Mishra had issued notice In the matter. The Bench had heard Senior Advocate Mr. Kapil Sibal who represented the appellant. He had pointed out that though he was in confinement of the officers of the ED since 10:30 AM of 7.8.23, the arrest took place 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.

Today, the Counsel, appearing for the petitioner, requested for an interim bail. However, the Court declined to grant this relief and asked the Counsel to instead argue the matter. On the other hand, ED's Counsel asked the Court for time to file a reply highting that the question of law was involved.

Accordingly, the Court adjourned the matter till July.

Brief 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