IN THE HIGH COURT OF JHARKHAND AT RANCHI

(Criminal Writ Jurisdiction)

W. P. (Cr.) 68 of 2024
Hemant Soren, aged about 48 years, s/o Shri Shibu Soren, r/o Chief
Minister House, PS-Gonda, PO-Gonda, District-Ranchi ...... Petitioner
-Versus-
1. Directorate of Enforcement, Government of India, having its office at
Room No. 202, A-Block, Pravartan Bhawan, Dr. A.P.J. Abdul Kalam Road,
PO & PS-Tuglak Road, New Delhi-110011
2. Assistant Director, Directorate of Enforcement, having its Zonal Office
at Airport Road, Plot No. 1502/B, Hinoo, PO & PS-Hinoo, District-Ranchi,
Jharkhand-834002 ….Respondents
---------------
CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE NAVNEET KUMAR
For the Petitioner : Mr. Kapil Sibal, Sr. Advocate (through V.C)
Mr. Rajiv Ranjan, Sr. Advocate
Mr. Piyush Chitresh, Advocate
For the Respondents : Mr. S. V. Raju, (A.S.G) (through V.C)
Mr. Zoheb Hossain, Advocate
Mr. Amit Kumar Das, Advocate
Mr. Saurav Kumar, Advocate
Mr. Rishabh Dubey, Advocate
---------------

JUDGMENT
CAV on 28th February 2024 Pronounced on 3rd May 2024
Per, Shree Chandrashekhar, A.C.J.

After traveling a little topsy-turvy course, this writ petition

comes up with the following amended prayers:
“1a. For appropriate writ(s), order(s) and direction(s) to read Down and/or
Read Into, consider, determine and expound the scope and ambit of
Section 50 (2) of The Prevention of Money-Laundering Act, 2002 in
consonance with the law declared by the Supreme Court inter alia, in
Vijay Madanlal Chowdhury vs Union of India (Cr. Appeal nos. 4634/2014)
and Pankaj Bansal vs Union of India (Cr. Appeal nos. 3051 and 3052 of
2023) and declare that:-
(i) The authorised person issuing Summon under Section 50(2) must
record in writing the reasons why he considers necessary the
attendance of person to whom Summon is issued:
(ii) The writing recording the reason to belief that attendance is
necessary before issuance of Summon under Section 50(2) must
be dated, sealed and preserved so that the same be made available
to the competent Court when called for;
1AA. Declare the arrest and consequent detention of the Petitioner as
unwarranted, arbitrary, illegal and violative of the fundamental right of
the petitioner guaranteed and protected under Article 21 of the
 Constitution of India and direct the Respondent to forthwith set the
Petitioner free.
1AB. Declare the order dated 02.02.2024 passed by PMLA Court in the
said proceeding sending the Petitioner for remand is arbitrary and illegal.
b. Issue appropriate writ, order or direction to hold and declare the action
of the respondents in issuing summons dated 7.8.23, 18.8.2023, 31.8.2023,
11.09.2023, 25.09.2023, 10.12.2023, 29.12.2023, 16.1.12024, 22.1.2024,
25.1.2024 in relation to ECIR/RNZO/25/2023 as grossly illegal, null and
void and wholly without jurisdiction and to accordingly quash all action/
consequential action taken in respect of the above summons in
ECIR/RNZO/25/2023.
c. To further Hold and declare that the respondents have exceeded their
jurisdiction under the provisions of Prevention of Money Laundering Act,
2002 and have exercised jurisdiction which is not vested to them in law
and they are indulging in a vindictive and capricious and motivated action
and indulging in roving and fishing enquiry which is impermissible under
the provisions of PMLA.
d. To further hold and declare that the action of the respondents in issuing
summons to the petitioner in ECIR/RNZO/25/2023 although relatable to
and in relation to predicate offence being Sadar P.S. Case 272/23 in
District Ranchi although the petitioner is not an accused in the above case
nor are the questions and summons being served upon the petitioner is
relatable to any Proceeds of Crime connecting the petitioner to the
predicate offence and apparently the respondents are indulging in witch
hunting in colorable exercise of power.
e. Issue a writ of mandamus or any other appropriate writ(s), order(s) or
direction(s) in the nature of mandamus restraining the Respondents, their
officers, employees, servants [Link] forbear from acting and from giving
any or further effect to the summons dated 7.8.23, 18.8.2023, 31.8.2023,
11.09.2023, 25.09.2023, 10.12.2023, 29.12.2023, 16.1.12024, 22.1.2024,
25.1.2024 in relation to ECIR/RNZO/25/2023 by issuing further
summons to the Petitioner in the nature of the summons impugned herein;
f. Issue an order directing the respondents not to issue any further
summons to the petitioner in connection with ECIR/RNZO/ 25/2023 and
stay the operation and execution of the summons and all consequential
action taken / issued in F. No. ECIR/RNZO/25/2023.
AA. Direct the immediate release of the Petitioner from illegal arrest and
custody of the Respondent.
g. Issue rule nisi in terms of prayers (a) to (c) above;
h. Direction restraining the Respondent no.2 from giving any or further
effect to or acting pursuant to or issuing any further summons or initiating
any coercive steps against the Petitioner till the disposal of the present
writ petition;
i. Interim and ad interim orders in terms of prayers above;
j. Pass such other and further order or reliefs as this Hon’ble Court may
deem fit and proper in the facts and circumstances of the case.”

2. The petitioner, a 2-time Chief Minister of Jharkhand, was

arrested on the evening of 31st January 2024 by the Enforcement
Directorate1. He has challenged the remand order dated 2nd February 2024
and, in connection thereto, questions the summons that does not provide
any details of a predicate offence or any other information regarding his

1
in short, ED
2 W.P.(Cr.) No. 68 of 2024
involvement with the proceeds of crime. He has pleaded that the ED is
acting beyond its jurisdiction and summons are issued to him out of malice
and to harass, humiliate and intimidate him. The ED started its expedition
in October 2022 and issued a summons on 31st October 2022 seeking his
explanation in the illegal mining case. That was followed by another
summons dated 9th November 2022 on a similar allegation. In compliance
thereof, he attended the office of the ED on 17th November 2022 for the
recording of his statement. On that day, he was questioned about his assets
for over nine hours and as required by the ED furnished complete details
of the assets owned by him and his family members and provided certified
copies of the title deeds thereof through a letter dated 30th November 2022.
The ED again issued a summons dated 7th August 2023 to him for (i)
recording of his statement concerning the properties owned, possessed and
occupied by him and (ii) sources of acquisition of the properties under his
possession. The petitioner, in turn, by a letter dated 14th August 2023
informed the ED about furnishing the details of his assets on 30th November
2022 and filing of the returns with the Income Tax Department. However,
fresh summons were issued to him on 18th August 2023, 31st August 2023,
11th September 2023, 25th September 2023, 10th December 2023, 29th
December 2023, 16th January 2024 and 25th January 2024 for the same
purpose of the recording of his statement regarding the properties. On 20th
January 2024, his statement was recorded between 1:30 PM and 6:30 PM.
On that day, only 17-18 questions were put to him out of which 3-4
questions related to a plot of land at Bargai which the ED alleged to be
owned and possessed by him and the other questions were about
inaccuracies in the affidavit filed with the Election Commission.
3. The petitioner further pleaded that an inquiry was made from
him regarding cash deposit of about Rupees One Crore between 2018 and
2022 in the Bank accounts of Sohrai Bhawan and Sohrai Events that are
independently managed by his wife. He endeavored to explain that the
money so deposited over the years was received in installments from letting
out of the marriage hall and by providing event management services and
all such receipts had been the subject matter of the assessment for Income

3 W.P.(Cr.) No. 68 of 2024

Tax and Service Tax. He has raised a grievance also against the Central
Bureau of Investigation which conducted an inquiry and submitted reports
dated 6th January 2021, 1st July 2021 and 29th June 2022 wherein certain
properties which do not belong to him and his family are wrongly included.
4. The petitioner alleges that repeated summons issued by the ED
were actuated with malice and part of the political conspiracy to destabilize
the elected Government in the State of Jharkhand. The summons issued
by the ED ignored his reply through letters dated 30th November 2022,
14th August 2023, 24th August 2023, 9th September 2023, 23rd September
2023, 12th December 2023, 2nd January 2024 and 15th January 2024 and
furnishing of the details of movable and immovable properties, details of
Bank accounts and PAN number. The petitioner raises a question also to
the jurisdiction of the ED to investigate the offence of money-laundering
by starting a fresh inquiry into the assets acquired by him more than 15
years ago which were duly reported to and accepted by the Income Tax
Authority as legally acquired property. The petitioner apprehends that this
is part of the game plan of the BJP to wreck political vendetta against the
Opposition leaders who have united to form INDIA Alliance in which he
and his party are vocal participants.
5. In its affidavit-in-opposition, the ED referred to the raids
conducted at several places on 13th April 2023 and 26th April 2023 in the
course of which seventeen Register-II and eleven trunks full of tampered
deeds and documents were seized. Several persons thereafter came forward
and gave statements under section 50 of the Prevention of Money-
Laundering Act, 20022 claiming themselves owners of the properties that
were illegally grabbed by others. According to the ED, there are at least
three persons who produced documents in support of their claim over a part
of the property at Bargai measuring about 8.46 acres (hereinafter referred
to as subject property) and claimed that the lands belonging to them and
other adjacent lands are forcefully possessed by the petitioner. One of such
persons, namely, Baijnath Munda gave a complaint that a piece of land
measuring about 8.50 acres at Bariatu Thana No. 184 originally owned by

2
in short, “PMLA”
4 W.P.(Cr.) No. 68 of 2024
his ancestors was forcefully acquired by the petitioner and his father. After
recording the statement of Baijnath Munda, a survey under section 16 of
the PMLA was conducted on 20th April 2023 in the presence of Baijnath
Munda, Shyam Lal Pahan and Bhanu Pratap Prasad. At that time, the Circle
Officer, Circle Inspector and Circle Amins were also present with the
officials of the ED and it became clear during the survey that the subject
property was in illegal possession of the petitioner. Santosh Munda who
was found residing with his family in a temporary settlement inside the
subject property stated before the ED that the subject property is in the
occupation, use and possession of the petitioner. In the affidavit-in-
opposition, the survey conducted on 20th April 2023 has been narrated in
the following manner:
41. Conclusion of the Survey conducted on 20.04.2023 under section 16
of PMLA, 2002 and Statements which indicate that the property
admeasuring 8.5 acres (approx.) is illegally possessed and used by
Petitioner:
 On reaching the premise, it was seen that it was a very big land
bounded by stone walls. There was one temporary settlement in
which a family consisting of five person (including 2 kids) were re-
siding. On enquiry about the ownership of the land, one lady (name
withheld) residing and available there stated that the land owner of
the said land is Shri Hemant Soren.
 It was further enquired about any male person who was residing there
and can come for the enquiry at the spot. Accordingly, one Santosh
Munda, son of Dibru Pahan was called. On enquiry, he also stated
that the land belongs to Mantri Ji, i.e., the Petitioner herein.
 On further enquiry, Santosh Munda stated that the land is in custody
of Shri Hemant Soren, the present C.M. of Jharkhand which was
noted by all.
 It was verified and reported that the total land was distributed in
several plots and khatas and as per online information and available
information in their domain, the entire land had been shown amongst
several owners.
 It was further stated by Shri Bhanu Pratap Prasad that the concerned
original register II had been seized from his premises during searches
dated 13.04.2023.
 It was seen that the total land was distributed in several plots and
khatas and as per online information and available information in
their domain, the entire land has been shown amongst several own-
ers. The online records available with circle officer appears contra-
dictory. The plot was shown to be registered in name of following
different persons, but all the plots are located inside a common
boundary which clearly shows the control and occupation of a single
person.

Khata Plot Area Khatiyan Register II Page Geo-

No. graphical
status

5 W.P.(Cr.) No. 68 of 2024

 221 983 0.21 acres Gair Bhuinhari Not available Inside the
boundary
985 1.16 acres Gair Bhuinhari Not available Inside the
boundary
987 0.96 acres Gair Bhuinhari 1. Kush Kumar Inside the
Bhagat and other boundary
80 decimals (338 R
27 /87-88/17.3.88)
2. Budhan Ram,
Jageshwar Ram 16
decimals (419R27
/78-79/24.04.78)
210 984 0.30 acres Bakaast Not available Inside the
Bhuinhari boundary
109 986 1.09 acres Lodha Pahan, Lodha Pahan, s/o 110/1 Inside the
s/o Birsa Pahan Birsa Pahan boundary
210 988 2.06 acres Bakaast Shashi Bhushan 88/V Inside the
Bhuinhari Singh 84 decimals boundary
(325/88-89/ 89/V
23.01.89) Bhawani
Shankar Lal 84 159/I
decimals (324/88-
89/23.01.89)
Budhu Ram and
others 38 decimals
(419/78-79/
24.04.78)
210 990 0.48 acres Bakaast Budhan Ram and 159/I Inside the
Bhuinhari others 38 decimals boundary
(419/78-79/
24.04.78)
234 989 0.84 acres Bakaast Bharat Ram, 160/I Inside the
Bhuinhari Jagdish Ram 12 boundary
decimals (418R27/ 117/IV
78-79/24.07.78)
Sudhir Jaiswal 118/IV
24.5 Kattha (200R
27/86-87/06.08.
86) Anil Jaiswal 23
Kattha(201R27/ 86
- 87/ 06.08.86)
223 992 0.61 acres Bakaast Maheshwar Das 86/V Inside the
Bhuinhari Gupta 16.05 boundary
Pahnaai Kattha (323/88-89/ 87/V
23.01.89) Moti
Sahu 20 Kattha 183/I
(322/88-89/
23.01.89) Neel
Ratan Rai 10
Decimals(537R27/
78-79/21.08.78)
227 993 0.41 acres Bakaast Jamabandi not Inside the
Bhuinhari available boundary
234 996 0.32 acres Bakaast Uma Shankar 119/IV Inside the
Bhuinhari Jaiswal 17 Katta boundary
(202R27/86-87/
06.08.86)
210 980 42 deci- Bakaast Vanivrat Rai s/o 14/V Inside the
mals Bhuinhari Yamini Mohan boundary
Rai, Shri Narayan
Chaudhary s/o-
Vashaam
Chaudhary 220R
27/ 87-88

6. According to the ED, the Register-II containing details of

several plots were not available and Online records available in the Circle
Office were found to contain contradictory details. The ED seized the

6 W.P.(Cr.) No. 68 of 2024

WhatsApp chats of Binod Singh who is being investigated in ECIR/
RNZO/07/2023 and then it was revealed that there was a proposal to
construct a Banquet Hall over the subject property, and the proposed
plan/map of the Banquet Hall was shared by Binod Singh to the petitioner
on 6th April 2021. The ED has criticized the conduct of the petitioner in not
cooperating during the inquiry and recording of his statement. On 20th
January 2024, while recording his statement under section 50 of the PMLA
the petitioner was confronted with the property details, such as, khata
number, plot number, mouza etc. but he did not disclose the true facts and
concealed his possession over the subject property. He was also confronted
with a property measuring one acre in the name of his family members and
out of that about 17 decimals of land is recorded in his name. Finally, the
ED obtained a search warrant under section 17 of the PMLA and searched
his official residence at Shanti Niketan, New Delhi around 7:00 PM on 29th
January 2024. However, the petitioner was not found there and it was
learned that he had secretly left the premises around 2:00 AM at midnight
and therefore the search was conducted in the presence of his staff and other
persons present there. The conduct of the petitioner is also criticized for
lodging a criminal case on 31st January 2024 vide FIR No. 6 of 2024 under
section 3(1)(p)(r)(s)(u) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 against the officers of the ED who had
searched his Delhi residence. He also made a complaint against the officials
of the Central Reserve Police Force who were providing support to the ED
officials during the recording of his statement on 20th January 2024. In
course of the search at New Delhi, the following articles/items were
recovered and sealed by the ED on 29th January 2024:
a. cash amounting to Rs. 36,34,500/-.
b. the information shared to the State of Jharkhand under section 66(2) of
PMLA, 2002 for taking necessary actions in the matter of recovery of the
duplicate seals and stamps of various offices including Registrar of
Assurances which were used to manufacture fake forged deeds.
c. The relied upon documents of the prosecution complaint filed in ECIR:
RNZO/18/2022 which contain the statement of Bhanu Pratap Prasad
recorded in respect of the property admeasuring 8.5 acres which is the
subject matter of the instant investigation.
d. From his residence, two keys of BMW car having registration no.
HR26EM2836, were also found inside the house. On further investigation,
it has revealed that the said Car has been purchased on the instruction of

7 W.P.(Cr.) No. 68 of 2024

 Harshit Sahu S/o Dheeraj Sahu in the name of Bhagwandas Holdings Pvt.
Ltd. This car was exclusively used by Hemant Soren whenever he visits
Delhi.

7. A preliminary objection is taken on the ground that the

summons dated 7th August 2023, 18th August 2023, 31st August 2023, 11th
September 2023, 25th September 2023, 10th December 2023, 29th December
2023, 16th January 2024, 22nd January 2024 and 25th January 2024 had
lapsed by the time this writ petition came to be filed and therefore no relief
can be granted to the petitioner and the present proceeding must terminate;
and, the writ petition should meet with the same fate as W.P.(Cr.) No.787
of 2023.
8. On a previous occasion, W.P (Cr.) No. 787 of 2023 was filed
by the petitioner with the following prayers:
“a. Declare Section 50 and Section 63 of the Prevention of Money
Laundering Act, 2002 as ultra vires to the Constitution of India; and
b. Issue a writ of mandamus and/or other appropriate writ(s),
order(s) or direction(s) in the nature of mandamus to declare
the summons bearing Nos. PMLA/SUMMON/RNZO/2023/450 dated
07.08.2023, PMLA/ SUMMON/ RNZO/ 2023/ 458 dated 18.08.2023,
PMLA/ SUMMON/ RNZO/ 2023/ 506/1957 dated 31.08.2023 and
PMLA/SUMMON/RNZO/ 2023/545 dated 11.09.2023 issued by the
Respondent No.2 illegal and null and void and accordingly quash the
impugned summons and all steps taken and proceedings emanating
therefrom;
c. Issue a writ of mandamus or any other appropriate writ(s), order(s)
or direction(s) in the nature of mandamus restraining the
Respondents, their officers, employees, servants [Link] forbear from
acting and from giving any or further effect to the summons
bearing Nos. PMLA/ SUMMON/ RNZO/2023/450 dated 07.08.2023,
PMLA/ SUMMON/ RNZO/ 2023/ 458 dated 18.08.2023,
PMLA/ SUMMON/ RNZO/ 2023/ 506/1957 dated 31.08.2023 and
PMLA/SUMMON/RNZO/2023/545 dated 11.09.2023 and issuing further
summons to the Petitioner in the nature of the summons impugned herein;
d. Issue rule nisi in terms of prayers (a) to (c) above;
e. Direction restraining the Respondent no.2 from giving any or further
effect to or acting pursuant to or issuing any further summons to the
Petitioner in the nature of the summons impugned herein till the disposal
of the present writ petition;
f. Interim and ad interim orders in terms of prayers above;
g. Pass such other and further order or reliefs as this Hon'ble Court may
deem fit and proper in the facts and circumstances of the case.”

9. The summons dated 7th August 2023, 18th August 2023, 31st
August 2023 and 11th September 2023 were challenged in W.P.(Cr.) No.787
of 2023; these are also challenged in this writ petition. The petitioner put
forth a ground that for good reasons he could not appear before the ED.

8 W.P.(Cr.) No. 68 of 2024

However, before a decision was rendered in the writ petition the date of his
appearance indicated in the summons had passed and the writ petition was
dismissed observing that it had been rendered infructuous.
10. By an order dated 13th October 2023, a co-ordinate Bench of
this Court dismissed W.P (Cr.) No. 787 of 2023 observing as under:
“5) Mr. Kapil Sibal, Senior Advocate representing the petitioner, virtually,
submitted that the summons dated 07.08.2023 asking the petitioner to
appear on 18.08.2023 is bad in law, as there is no predicate offence against
the petitioner and no case has been registered. He also drew attention of
this Court to paragraph 187 of the judgment rendered in the case of Vijay
Madanlal Choudhary and others Vs. Union of India, 2022 SCC OnLine
SC 929. However, in the course of hearing, the learned Senior Advocate
for the petitioner would submit that their prayer as far as declaring the
provisions of Sections 50 and 63 of the Prevention of Money Laundering
Act, 2002 has already been settled by the Hon’ble Supreme Court in the
aforesaid judgment of Vijay Madanlal Choudhary (supra) and, therefore,
this Court does not have any jurisdiction to entertain the writ petition on
that ground.
6) Learned Senior Advocate Cum Additional Solicitor General Mr. S.V.
Raju would submit that the Writ Petition (Criminal) challenging the
summons has become infructuous by efflux of time as the date of
appearance of the petitioner has already elapsed and, therefore, at present
this Court should not interfere in the matter, because no substantial relief
can be granted to the petitioner. Only an academic discussion is not to be
resonated to in by the Court so that valuable time of the Court is not
wasted.
7) In view of aforesaid submissions and the settled position of law that the
Hon’ble Supreme Court in Vijay Madanlal Choudhary’s case (supra) has
already ruled that the two provisions, referred to above, are not ultra vires
of the Constitution and that the summons, which have been issued to the
petitioner, have become infructuous because of efflux of time, we are of
the opinion that the writ application is not maintainable. Hence, we do not
entertain the writ application and consider that it is not a fit case to rule
nisi the respondents. Hence, the writ petition is dismissed in limine.”

11. Even going by the order passed by the co-ordinate Bench of

this Court, the summons issued on 25th January 2024 survived as of 31st
January 2024 when the present writ petition was filed. This writ petition
cannot be held not maintainable because there are other issues involved
therein, such as, the legality of arrest and remand of the petitioner and the
jurisdiction of the ED to register ECIR and make inquiries against him.
Mr. S. V. Raju, the learned Additional Solicitor General next contended that
after the amendment the writ petition had been transformed into a Habeas
Corpus petition which is not entertainable by the writ Court in the face of
the remand orders dated 2nd February 2024, 7th February 2024 and 12th
February 2024. The learned ASG submitted that the remand orders dated

9 W.P.(Cr.) No. 68 of 2024

7th February 2024 and 12th February 2024 are not under challenge and no
relief can be granted to the petitioner in the present proceeding. The ED
maintained that the petitioner can avail the remedy under section 45 of the
PMLA read with section 439 of the Code of Criminal Procedure by filing
a petition for regular bail in the Special Court (PMLA) at Ranchi and cannot
move this Court under Article 226 of the Constitution of India by short-
circuiting the statutory regime. The learned ASG referred to “Rahul
Modi” 3 and other judgments to submit that the petitioner who was
remanded to police/judicial custody by a judicial order cannot maintain a
Habeas Corpus petition in the High Court. In “Rahul Modi”3, the Hon’ble
Supreme Court held as under:
“21. The act of directing remand of an accused is thus held to be a judicial
function and the challenge to the order of remand is not to be entertained
in a habeas corpus petition. The first question posed by the High Court,
thus, stands answered. In the present case, as on the date when the matter
was considered by the High Court and the order was passed by it, not only
were there orders of remand passed by the Judicial Magistrate as well as
the Special Court, Gurugram but there was also an order of extension
passed by the Central Government on 14-12-2018. The legality, validity
and correctness of the order or remand could have been challenged by the
original writ petitioners by filing appropriate proceedings. However, they
did not raise such challenge before the competent appellate or revisional
forum. The orders of remand passed by the Judicial Magistrate and the
Special Court, Gurugram had dealt with merits of the matter and whether
continued detention of the accused was justified or not. After going into
the relevant issues on merits, the accused were remanded to further police
custody. These orders were not put in challenge before the High Court. It
was, therefore, not open to the High Court to entertain challenge with
regard to correctness of those orders. The High Court, however,
considered the matter from the standpoint whether the initial order of
arrest itself was valid or not and found that such legality could not be
sanctified by subsequent order of remand. Principally, the issue which was
raised before the High Court was whether the arrest could be effected after
period of investigation, as stipulated in the said order dated 20-6-2018 had
come to an end. The supplementary issue was the effect of extension of
time as granted on 14-12-2018. It is true that the arrest was effected when
the period had expired but by the time the High Court entertained the
petition, there was an order of extension passed by the Central
Government on 14-12-2018. Additionally, there were judicial orders
passed by the Judicial Magistrate as well as the Special Court, Gurugram,
remanding the accused to custody. If we go purely by the law laid down
by this Court with regard to exercise of jurisdiction in respect of habeas
corpus petition, the High Court was not justified in entertaining the
petition and passing the order.”

12. A Habeas Corpus proceeding is laid on the foundation of

3
Serious Fraud Investigation Office v. Rahul Modi : (2019) 5 SCC 266

10 W.P.(Cr.) No. 68 of 2024

illegal detention. In “Tasneem Rizwan Siddiquee”4 the Hon’ble Supreme
Court held that a plea of illegal detention loses its sting when the person
goes to police or judicial custody under an order passed by the jurisdictional
Magistrate and no writ of Habeas Corpus can be issued. In “Manubhai
Ratilal Patel” 5 the Hon’ble Supreme Court held that a writ of Habeas
Corpus is not to be entertained when a person is committed to judicial
custody or police custody by the competent Court by an order which prima
facie does not appear to be without jurisdiction nor passed in an absolute
mechanical manner nor is wholly illegal. Later, the law on the subject was
elucidated by the Hon’ble Supreme Court in “V. Senthil Balaji”6 as under:
“28. A writ of habeas corpus shall only be issued when the detention is
illegal. As a matter of rule, an order of remand by a judicial officer,
culminating into a judicial function cannot be challenged by way of a writ
of habeas corpus, while it is open to the person aggrieved to seek other
statutory remedies. When there is a non-compliance of the mandatory
provisions along with a total non-application of mind, there may be a case
for entertaining a writ of habeas corpus and that too by way of a challenge.
29. In a case where the mandate of Section 167 CrPC, 1973 and Section
19 of the PMLA, 2002 are totally ignored by a cryptic order, a writ of
habeas corpus may be entertained, provided a challenge is specifically
made. However, an order passed by a Magistrate giving reasons for a
remand can only be tested in the manner provided under the statute and
not by invoking Article 226 of the Constitution of India. There is a
difference between a detention becoming illegal for not following the
statutory mandate and wrong or inadequate reasons provided in a judicial
order. While in the former case a writ of habeas corpus may be
entertained, in the latter the only remedy available is to seek a relief
statutorily given. In other words, a challenge to an order of remand on
merit has to be made in tune with the statute, while non-compliance of a
provision may entitle a party to invoke the extraordinary jurisdiction. In
an arrest under Section 19 of the PMLA, 2002 a writ would lie only when
a person is not produced before the court as mandated under sub-section
(3), since it becomes a judicial custody thereafter and the court concerned
would be in a better position to consider due compliance.
30. Suffice it is to state that when reasons are found, a remedy over an
order of remand lies elsewhere. Similarly, no such writ would be
maintainable when there is no express challenge to a remand order passed
in exercise of a judicial function by a Magistrate. State of
Maharashtra v. Tasneem Rizwan Siddiquee: (SCC p. 751, para 10)
“10. The question as to whether a writ of habeas corpus could be
maintained in respect of a person who is in police custody pursuant to a
remand order passed by the jurisdictional Magistrate in connection with
the offence under investigation, this issue has been considered in Saurabh
Kumar v. Jailor, Koneila Jail and Manubhai Ratilal Patel v. State of
Gujarat. It is no more res integra. In the present case, admittedly, when
the writ petition for issuance of a writ of habeas corpus was filed by the
respondent on 18-3-2018/19-3-2018 and decided by the High Court on
4
State of Maharashtra v. Tasneem Rizwan Siddiquee: (2018) 9 SCC 745
5
Manubhai Ratilal Patel v. State of Gujarat: (2013) 1 SCC 314
6
V. Senthil Balaji v. State: (2024) 3 SCC 51
11 W.P.(Cr.) No. 68 of 2024
 21-3-2018 her husband Rizwan Alam Siddiquee was in police custody
pursuant to an order passed by the Magistrate granting his police custody
in connection with FIR No. I-31 vide order dated 17-3-2018 and which
police remand was to enure till 23-3-2018. Further, without challenging
the stated order of the Magistrate, a writ petition was filed limited to the
relief of habeas corpus. In that view of the matter, it was not a case of
continued illegal detention but the incumbent was in judicial custody by
virtue of an order passed by the jurisdictional Magistrate, which was in
force, granting police remand during investigation of a criminal case.
Resultantly, no writ of habeas corpus could be issued.”
(emphasis supplied)”

13. Summarily put, there is no absolute taboo7 against an order of

remand being challenged in a Habeas Corpus petition. Even so, the prayer
seeking a declaration that the arrest of the petitioner is illegal shall not
convert the writ petition into a Habeas Corpus proceeding. This writ
petition is not reduced to a Habeas Corpus petition merely because the
remand order dated 2nd February 2024 is challenged by the petitioner. The
High Court cannot refuse to examine the issues touching upon the validity
of the arrest and remand of the accused who set up the plea of illegality and
infringement of the Constitutional safeguards. This is too well settled that
the High Court cannot afford to be hyper-technical being oblivious of the
plenary power it exercises under Article 226 of the Constitution.
14. Mr. Kapil Sibal, the learned senior counsel for the petitioner
contended that illegal possession of the subject property at Bargai is not the
proceeds of crime generated from the predicate offence and the summons
issued to the petitioner is without jurisdiction and therefore the entire
proceeding taken thereunder is vitiated. A roving and fishing inquiry into
the assets of a person is not contemplated under the PMLA and the ED
cannot issue summons under section 50(2) compelling a person to give a
statement unless it has reasons to believe that any assets was acquired with
the proceeds of crime generated from a predicate offence. The learned
senior counsel further submitted that the summons issued to the petitioner
were quite cryptic and did not provide any information as regards the
commission of scheduled offence leading to the proceeds of crime, and it
was for the first time that in the summons dated 29th December 2023 the

7
Gautam Navlakha v. NIA: (2022) 13 SCC 542

12 W.P.(Cr.) No. 68 of 2024

ED disclosed about the ongoing investigation in connection with the
tampering/falsification of the Government records by Bhanu Pratap Prasad
and others. The nature of the subject land at Bargai is ‘bhuinhari land’
which cannot be transferred or sold to any person in any manner and the
allegation against the petitioner regarding the said property is wrong and
misconceived. It is submitted that a complaint made 14 years after the
alleged forceful acquisition of the subject property and that too without any
documentary evidence as to transfer of the subject property in favor of the
petitioner shall not provide any valid ground to the ED to issue summons
to him in connection therewith and start a motivated inquiry to clip his
wings.
15. The provisions under section 50 of the PMLA which vest
powers in the Director etc. to summon any person to give evidence or
produce any record are extracted as under:
50. Powers of authorities regarding summons, production of
documents and to give evidence, etc.—(1) The Director shall, for the
purposes of Section 13, have the same powers as are vested in a civil court
under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in
respect of the following matters, namely:—
(a) discovery and inspection;
(b) enforcing the attendance of any person, including any officer of a
reporting entity, and examining him on oath;
(c) compelling the production of records;
(d) receiving evidence on affidavits;
(e) issuing commissions for examination of witnesses and documents; and
(f) any other matter which may be prescribed.
(2) The Director, Additional Director, Joint Director, Deputy Director or
Assistant Director shall have power to summon any person whose
attendance he considers necessary whether to give evidence or to produce
any records during the course of any investigation or proceeding under
this Act.
(3) All the persons so summoned shall be bound to attend in person or
through authorised agents, as such officer may direct, and shall be bound
to state the truth upon any subject respecting which they are examined or
make statements, and produce such documents as may be required.
(4) Every proceeding under sub-sections (2) and (3) shall be deemed to
be a judicial proceeding within the meaning of Section 193 and Section
228 of the Indian Penal Code (45 of 1860).
(5) Subject to any rules made in this behalf by the Central Government,
any officer referred to in sub-section (2) may impound and retain in his
custody for such period, as he thinks fit, any records produced before him
in any proceedings under this Act:
Provided that an Assistant Director or a Deputy Director shall not—
(a) impound any records without recording his reasons for so doing; or
(b) retain in his custody any such records for a period exceeding three
13 W.P.(Cr.) No. 68 of 2024
 months, without obtaining the previous approval of the Joint Director.

16. The contention, that the exercise of power under section 50 is

a serious invasion of the rights and freedom of the petitioner and the
impugned summons are ex-facie illegal, null and void and a glaring
example of brazen abuse of the power for extraneous and malafide reasons,
is not based on any legal and factual foundation. The law enjoins every
person to speak the truth. This is not something alien to the criminal
jurisprudence that a person is bound to answer a question if the fact is
within his exclusive knowledge. Just to indicate, section 132 of the Indian
Evidence Act provides that a witness cannot take an excuse not to answer
any question upon the ground that the answer to such question will
criminate, or may tend directly or indirectly to criminate him, or that it will
expose or tend directly or indirectly to expose him to a penalty or forfeiture
of any kind. A person is not excused from answering any question as to any
matter relevant to the matter in issue in any civil or criminal proceeding.
The right to remain silent is a Constitutional guarantee against self-
incrimination but the exercise of this right does not provide immunity from
prosecution of the person in a criminal case. The use of confessions in law
had started with the Tudors and Stuarts. At least since middle of 17th
century confessions were used as evidence without scruple 8. The Latin
phrase “habemus optimum testem confitentem reum” which means “we
have the best witness, a confessing defendant” was the guiding thought in
earlier times. Lord Sumner said that the common law rules relating to
confessions were “as old as Lord Hale”9.
17. The stand taken by the ED is that in the ongoing investigation
divulging every material before filing of the prosecution complaint may
create difficulties and hindrances in further investigation. The basis for
raising this ground seems to be “Vijay Madanlal Choudhary”10 wherein the
Hon’ble Supreme Court held that the ECIR is an internal document and a
copy of the ECIR may not be furnished to the person concerned
apprehending arrest or even after his arrest and so long as the person has

8
Wigmore in Wigmore on Evidence (2nd Ed.), Vol. 2, p. 131
9
Ibrahim v. The King : (1914) A.C 599
10
Vijay Madanlal Choudhary v. Union of India : 2022 SCC OnLine SC 929
14 W.P.(Cr.) No. 68 of 2024
been informed about the grounds of his arrest that is sufficient compliance
of the mandate under Article 22(1) of the Constitution. The Hon’ble
Supreme Court held that there may be details of materials in possession of
the Authority and such details cannot be revealed before the inquiry into
the proceeds of crime and concerning the persons involved in the process
or activity connected therewith are concluded. The Hon’ble Supreme Court
held as under;
“458. The next issue is : whether it is necessary to furnish copy of ECIR
to the person concerned apprehending arrest or at least after his arrest?
Section 19(1) of the 2002 Act postulates that after arrest, as soon as may
be, the person should be informed about the grounds for such arrest. This
stipulation is compliant with the mandate of Article 22(1) of the
Constitution. Being a special legislation and considering the complexity
of the inquiry/investigation both for the purposes of initiating civil action
as well as prosecution, non-supply of ECIR in a given case cannot be
faulted. The ECIR may contain details of the material in possession of the
Authority and recording satisfaction of reason to believe that the person
is guilty of money-laundering offence, if revealed before the
inquiry/investigation required to proceed against the property being
proceeds of crime including to the person involved in the process or
activity connected therewith, may have deleterious impact on the final
outcome of the inquiry/investigation. So long as the person has been
informed about grounds of his arrest that is sufficient compliance of
mandate of Article 22(1) of the Constitution. Moreover, the arrested
person before being produced before the Special Court within twenty-four
hours or for that purposes of remand on each occasion, the Court is free
to look into the relevant records made available by the Authority about
the involvement of the arrested person in the offence of money-laundering.
In any case, upon filing of the complaint before the statutory period
provided in 1973 Code, after arrest, the person would get all relevant
materials forming part of the complaint filed by the Authority under
Section 44(1)(b) of the 2002 Act before the Special Court.
459. Viewed thus, supply of ECIR in every case to person concerned is
not mandatory. From the submissions made across the Bar, it is noticed
that in some cases ED has furnished copy of ECIR to the person before
filing of the complaint. That does not mean that in every case same
procedure must be followed. It is enough, if ED at the time of arrest,
contemporaneously discloses the grounds of such arrest to such person.
Suffice it to observe that ECIR cannot be equated with an FIR which is
mandatorily required to be recorded and supplied to the accused as per the
provisions of 1973 Code. Revealing a copy of an ECIR, if made
mandatory, may defeat the purpose sought to be achieved by the 2002 Act
including frustrating the attachment of property (proceeds of crime). Non-
supply of ECIR, which is essentially an internal document of ED, cannot
be cited as violation of constitutional right. Concededly, the person
arrested, in terms of Section 19 of the 2002 Act, is contemporaneously
made aware about the grounds of his arrest. This is compliant with the
mandate of Article 22(1) of the Constitution. It is not unknown that at
times FIR does not reveal all aspects of the offence in question. In several
cases, even the names of persons actually involved in the commission of
offence are not mentioned in the FIR and described as unknown accused.
Even, the particulars as unfolded are not fully recorded in the FIR. Despite

15 W.P.(Cr.) No. 68 of 2024

 that, the accused named in any ordinary offence is able to apply for
anticipatory bail or regular bail, in which proceeding, the police papers
are normally perused by the concerned Court. On the same analogy, the
argument of prejudice pressed into service by the petitioners for non-
supply of ECIR deserves to be answered against the petitioners. For, the
arrested person for offence of money-laundering is contemporaneously
informed about the grounds of his arrest; and when produced before the
Special Court, it is open to the Special Court to call upon the
representative of ED to produce relevant record concerning the case of the
accused before him and look into the same for answering the need for his
continued detention. Taking any view of the matter, therefore, the
argument under consideration does not take the matter any further.”
18. The power vested in the Director, etc. under sub-section (2) of
section 50 is of wide amplitude and is intended to give effect to the object
behind the PMLA. In our opinion, the summons issued to the petitioner
cannot be faulted on the ground that a few summons did not contain specific
details of the crime and the petitioner was asked to give a statement about
his possession of the subject property. There is no real force in the
challenge to the summons issued to the petitioner under section 50(2) of
the PMLA.
19. Mr. Kapil Sibal, the learned senior counsel submitted that the
offence of conspiracy included in Part-A to the Schedule is not a standalone
offence and to rope in the petitioner who is not an accused in Sadar PS Case
No. 272 of 2023 with the aid of section 120-B of the Indian Penal Code,
the ED must show that there was a criminal conspiracy among the accused
persons to commit one or the other offences included in Parts A, B and C
of the Schedule. It is contended that the petitioner not being accused of
committing a scheduled offence and not connected with any proceeds of
crime cannot be prosecuted. We do not find any substance in this
submission. In a series of pronouncements, the Hon’ble Supreme Court
held that it is not necessary that the person accused of the offence of
money-laundering was made an accused in the First Information Report
lodged for the commission of a predicate offence. A decision on the point
is found in “Y. Balaji” 11 where the issue contested was whether mere
registration of a First Information Report for a predicate offence which may
be a scheduled offence is sufficient for the ED to register an ECIR and
summon a person under section 50 of the PMLA. On behalf of the accused,

11
Y. Balaji v. Karthik Desari: 2023 SCC OnLine SC 645
16 W.P.(Cr.) No. 68 of 2024
it was contended that unless the commission of the scheduled offence
generated proceeds of crime which was laundered by someone the ED
cannot issue summons under section 50(2) by registering an ECIR even
before identifying some property as representing the proceeds of crime. The
Hon’ble Supreme Court held that: “these contentions, in our opinion, if
accepted, would amount to putting the cart before the horse. Unfortunately
for the accused, this is not the scheme of the Act”.
20. The purpose of registering a First Information Report is to set
the machinery of law in motion. A First Information Report as its literal
meaning would suggest is registered based on information to the police
about the commission of a cognizable offence. At this juncture, a
prosecution complaint is yet to be filed and the result of the investigation
in Sadar P.S Case No. 272 of 2023 is awaited. In its official communication
to the Chief Secretary, the ED stated that by falsification of the records and
tampering with the documents valuable landed properties are acquired in
furtherance of a criminal conspiracy. We may only indicate that section
120-B of the Indian Penal Code starts with the expression “whoever is a
party to a criminal conspiracy” and any direct evidence of the criminal
conspiracy is hard to find. At this point in time, it is not necessary rather
not possible to name all the persons who might have been involved in the
crime. This is also a possibility that in course of the investigation further
information about the commission of other crimes is gathered. This is
therefore too early to assume or predict the persons who shall be sent up
for trial in Sadar P.S Case No.272 of 2023. Indeed, the Legislature could
not have intended that a person cannot be prosecuted for the offence of
money-laundering if he is not made an accused in the First Information
Report. A person gets out of the net of the PMLA if the prosecution for the
scheduled offence fails either by the quashing of FIR or chargesheet or he
is discharged by the criminal Court. In the communication dated 4th May
2023, the ED specifically referred to a conspiracy by several persons in the
commission of scheduled offences under sections 420, 467 and 471 of the
Indian Penal Code. However, the Form under section 154 of the Code of
Criminal Procedure was manipulated by the local police and the offence

17 W.P.(Cr.) No. 68 of 2024

under section 120-B of the Indian Penal Code was subsequently struck off.
21. The communication dated 04th May 2023 of the ED to the
Chief Secretary reads as under:
[Link]. ECIR/RNZO/18/2022/904 Dated: 04.05.2023
To,
The Chief Secretary,
Project Bhawan, Dhurwa
Government of Jharkhand
Ranchi, Jharkhand.
Subject: Investigation under the provisions of the Prevention of
Money Laundering Act, 2002-reg.
Sir,
This office is investigating a case pertaining to illegal
acquisition/disposal of land by a few private persons in conspiracy with
brokers and certain officials of land revenue department. During the
course of investigation, searches have been conducted on 13.04.2023 and
26.04.2023 at several premises linked to the above persons and several
incriminating evidences have been seized. During investigation, seven
persons have been arrested in this case including Bhanu Pratap Prasad,
Revenue Sub-Inspector, Baragai, Ranchi. A report in this matter has also
been forwarded to your good office.
2. During searches on 13.04.2023, the following 17 original registers
were seized from the premises under use and occupation of Bhanu Pratap
Prasad and 11 trunks of records/documents related to landed properties
including several deeds:

Sl. Particulars Page No. Name appearing on

No. register
1. Register I Register is badly muti- iqjkuk cM+kxkbZ& I
lated and couldn’t be
paginated
2. Register II 01 to 364 cM+kxkbZ Hkksye
w II
3. Register III 01 to 390 184 cM+kxkbZ& III
4. Register IV 01 to 201 cM+kxkbZ& IV
5. Register V 01 to 385 cM+kxkbZ Hkksye
w I, V
6. Register VI 01 to 132 ekStk&cM+kxkbZ] Hkksye
w VI ([kkrk
134 ls 153)
7. Register VII 01 to 200 xzke&cM+kxkbZ] Fkkuk u0 184]
Hkksye
w VII
8. Register VIII 01 to 198 cM+kxkbZ 184] VOL VIII
9. Register IX Register is badly muti- cM+kxkbZ u;k
lated and couldn’t be cM+kxkbZ& I
page numbered
10. Register X 01 to 298 cM+kxkbZ] Fkkuk u0 184] X
11. Register XI 01 to 197 XI cM+kxkbZ
12. Register XII 01 to 299 cM+kxkbZ& XII
13. Register XIII 01 to 297 184 cM+kxkbZ& XIII
14. Register XIV 01 to 292 cM+kxkbZ& XIV, 184
15. Register XV 01 to 253 cM+kxkbZ& 184 XV
16. Register XVI 01 to 295 cM+kxkbZ&184 ’kgj jkWp
a h
17. Register XVII 01 to 114 ftyk&Hkw&vtZu dk;kZy; jkWphA
ifj;kstuk& cfj;krq eq[; ekxZ
ls cM+kxkbZ okyk yse ls cksfj;k
rd iFk dk pkS0 ,oa
etcqrhdj.k [ksljk iath
Fkkuk u- 184] 162
vapy&cM+kxkbZ] jkWp
a hA

18 W.P.(Cr.) No. 68 of 2024

3. Investigation conducted by this office has revealed that several
entries/pages of the above registers (iath&II) have been tampered and
original records have been falsified. Investigation has also revealed that
names of several persons have been erased from the said registers and
fresh entries have been made to extend undue favours to some private
persons.
4. In some of the registers, certain pages are seen blank but online
entries have been made in name of some persons and some specific
properties for facilitating some brokers and private parties to acquire big
pieces of land. However, since searches were conducted and the registers
were recovered and seized, the physical entries could not be completed
in those registers.

5. In several cases, the nature of lands has been changed by

manufacturing false and back dated deeds. During course of
investigation, hand written notes/diaries, mobile phones have also been
seized which contain entries corroborating cash payment to the accused
Bhanu Pratap Prasad and other officials. Tainted cash amounting to Rs
3,97,800/-lac was also seized from the premise of Bhanu Pratap Prasad.
Investigation has revealed that one Bipin Singh s/o Nagina Singh is a
close accomplice of accused Bhanu Pratap Prasad. Bipin Singh is one of
the associates of Shekhar Prasad Mahto @ Shekhar Kushwaha and Priya
Ranjan Sahay, Saddam Hussain, Afsar Ali and others. This group has
conspired and falsified original records of several genuine land owners
and has also created bogus records in lieu of obtaining illegal benefit out
of their criminal activities.
6. During course of searches, 10 numbers of counterfeited
government stamps were also seized from possession of one Faiyaz Khan,
a driver of Afsar Ali, a government servant at RIMS. Investigation has
revealed that Afsar Ali was one of the masterminds behind the above
stated fraud. He is involved in preparing several fake deeds of properties
situated at Ranchi and its suburbs from the office of the Registrar of
Assurances, Kolkata in order to acquire and dispose lands in an illegal
manner.
7. Although several victims have come forward to submit their
complaints with supporting documents, it also appears that several
persons are still unaware of the forgeries committed by these persons in
their original property records. The above criminal activities amount to
cheating, forgery, corruption and criminal conspiracy on part of accused
Bhanu Pratap Prasad, Afsar All and his above-named accomplices for
obtaining illegal benefits and causing corresponding gain to other
persons.
8. The act of the above-mentioned accused persons prima facie
appears to be offences under section(s) 465, 467, 468, 469, 471, 472, 473,
475, 476 and 120(B) of IPC, 1860, Offences under the Information
Technology Act, 2000 as well as the offences under section 7 and section
13 of the Prevention of Corruption Act, 1988. Hence, it is proper to share
the information under section 66(2) of PMLA. The provisions of section
66(2) of PMLA are as under:

"..If the Director or other authority specified under sub-section (1) is

of the opinion, on the basis of information or material in his
possession, that the provisions of any other law for the time being in
force are contravened, then the Director or such other authority shall
share the information with the concerned agency for necessary
action.."

19 W.P.(Cr.) No. 68 of 2024

 The legal sanctity of the said provision is further explained by
Hon'ble Supreme Court of India in para 282 and para 290 in case of Vijay
Madanlal Chaudhary & others (2022 SCC Online SC 929)
9. The Hon'ble Supreme Court of India in its order dated 12.11.2013
in the case of Lalita Kumari Vs. Govt. of Uttar Pradesh and others in W.P
(Crl.) No. 68 of 2008 and others has categorically asserted on the
significance and compelling reasons for registration of FIR at the earliest.
The Hon'ble court has stated as under;
93. The underpinnings of compulsory registration of FIR is not only to
ensure transparency in the criminal justice-delivery system but also to
ensure "judicial oversight". Section 157(1) deploys the word "forthwith",
Thus, any information received under Section 154(1) or otherwise has to be
duly informed in the form of a report to the Magistrate. Thus, the
commission of a cognizable offence is not only brought to the knowledge
of the investigating agency but also to the subordinate judiciary.
105. Therefore, reading Section 154 in any other form would not only be
detrimental to the scheme of the Code but also to the society as a whole. It
is thus seen that this Court has repeatedly held in various decided cases that
registration of FIR is mandatory if the information given to the police under
Section 154 of the Code discloses the commission of a cognizable offence.
10. In view of the above, the above information is shared with you
under section 66(2) of PMLA for taking necessary action under
provisions of IPC, Information Technology Act and Prevention of
Corruption Act as deemed fit.
11. This issues with the approval of competent authority.

Yours Sincerely
Sd/-
(Kapil Raj)
Joint Director
22. In Sadar PS Case No. 272 of 2023, the allegations of
commission of the offences under sections 420, 467 and 471 of the Indian
Penal Code shall necessarily involve many persons committing such
offences. Bhanu Pratap Prasad was acting in league with the petitioner and
they were in constant touch with each other regarding the subject property
which is the proceeds of crime. The hand-written diaries seized from other
accused persons revealed cash payments to Bhanu Pratap Prasad, and there
are at least 36 property documents seized from their possession that were
forged for illegal acquisition and disposal of the lands comprised
thereunder. One of the seized original registers contained the ownership
details of the subject property measuring about 8.5 acres at Bargai which
was allegedly illegally acquired and possessed by the petitioner. The
information retrieved from the seized mobile phone of Bhanu Pratap Prasad
also contained the details of the subject property, and he admitted that the
subject property belonged to the petitioner. The ED claimed that the value
of this property is about 30 crores as per the existing government rate and

20 W.P.(Cr.) No. 68 of 2024

the prevailing fair market value of this property is much higher. In the
circumstances of the case, “Pavana Dibbur”12 does not come in aid to the
petitioner.
23. The main plank of the petitioner is that mere forceful
possession of the subject property cannot be the proceeds of crime covered
under section 2(1)(u) of the PMLA. Mr. Kapil Sibal, the learned senior
counsel contended that the whole basis of the proceedings against the
petitioner is the statement of a few persons recorded under section 50 of the
PMLA and the ED had no other material before it based on which the
arresting officer could have reason to believe that the petitioner is guilty of
the offence under the PMLA. The learned senior counsel endeavored to
show how the ED started sending summons to the petitioner for recording
his statement under section 50 and in hot haste the statement of witnesses
was recorded within two days. In simple words, the submission is that the
present proceeding against the petitioner is part of a political vendetta and
lacks bonafide. Per contra, the learned ASG referred to the search and
seizure proceedings and the order passed by the SAR Court to demonstrate
that there was illegal tampering in the official records. It is submitted that
the Register-II itself is a property derived from the commission of
scheduled offences and covered under the definition of the proceeds of
crime. The continued illegal occupation, use and possession of the
petitioner over the subject property is a continuing offence and it is
immaterial that a complaint by the aggrieved party came to be filed several
years after the subject property was forcefully grabbed by him. According
to the learned ASG, the relevant date shall be the date on which the
petitioner was found in illegal possession, occupation and use of the subject
property. In the affidavit-in-opposition, the ED took the following stand:
“Offence of Money Laundering committed by Shri Hemant Soren
48. In this case, Petitioner has indulged in the process connected with
acquisition, possession and the use of proceeds of crime. Petitioner is
knowingly a party with Bhanu Pratap Prasad in the activities connected
with concealment of the original records for projecting the property
admeasuring 8.5 acres acquired by him in an illegal manner as an

12
Pavana Dibbur v. The Directorate of Enforcement : Criminal Appeal No.2779 of 2023

21 W.P.(Cr.) No. 68 of 2024

 untainted property is a continuing activity and it is continuing as on day
of arrest as he is still enjoying the said proceeds of crime by its possession,
occupation and use by claiming it as legal and untainted property.
49. Considering the facts and circumstances as stated above, and the
activities and processes in which Petitioner is directly involved in the
offence of money laundering there were sufficient reasons to believe that
Shri Hemant Soren has acquired proceeds of crime and he was guilty of
the offence of money laundering, Hence, he was arrested on 31.01.2024
under section 19 of PMLA after observing the statutory compliances at
the time of arrest as provided under section 19 of PMLA, 2002.
50. That, the Grounds of Arrest, Arrest Memo, Arrest Order, and Personal
Search Memo were duly furnished to the accused in writing and the
compliances under section 19 (2) of the IML Act, 2002 were also fulfilled
and placed before the Learned Special Court (PMLA), Ranchi.
51. That the Learned Court was pleased to remand the accused person into
the custody of the Directorate of Enforcement for five days vide order
dated 02.02.2024, subsequently, remand was extended for another five
days and then for three days vide order dated 07.02.2024 and 12.02.2024
respectively, after perusing the records and materials relating to the case
and the arrest of the accused.
52. That, during the custody, the Petitioner was confronted with the
materials available with this office. The accused has been showing acute
non- cooperation and is reluctant to divulge true facts regarding the
properties acquired by him and other persons connected to him.
53. That, the accused was also confronted with his chats over WhatsApp
with his close associate Binod Singh which are highly incriminating and
contain details of several properties, However, the accused person refused
to oven sign and acknowledge the printout of the WhatsApp chats,
although, he has admitted that there are conversations between them.
54. That, the above stated WhatsApp chat not only include the exchange
of confidential information regarding several properties but other
incriminating information relating to transfer posting, sharing of
government records etc. out of which huge amount of money appears to
have been generated and transacted, In addition to this, Binod Singh have
Whatsapp Chats with several other persons in relation to transfer posting
of officials, possession and sharing of several admit cards of students
appearing for competitive exams held by Jharkhand Staff Selection
Commission etc.”

24. The points canvassed on behalf of the petitioner were debated

before the Hon’ble Supreme Court and are conclusively answered in “Vijay
Madanlal Choudhary”10. This is hardly necessary to indicate that our
judicial system is founded on judicial discipline, propriety and decorum.
For, it is really necessary to instill faith in the judicial system and ensure
that consistency and certainty in the judicial decisions are maintained. The
doctrine of binding precedent which promotes certainty and consistency in
judicial decisions is of utmost importance in the administration of judicial
system. Article 141 of the Constitution mandates that the law declared by
the Supreme Court shall be binding on all Courts within the territory of

22 W.P.(Cr.) No. 68 of 2024

India. In “All India Reporter Karamchari Sangh”13 the Hon’ble Supreme
Court held that the decision of the Supreme Court which is a Court of
record constitutes a source of law apart from being a binding precedent
under Article 141 of the Constitution of India. In “Nand Kishore”14 the
Hon’ble Supreme Court reiterated that the law laid down by the Supreme
Court shall have a binding character and as commandful as the law made
by the Legislative body. The validity of section 3 of the PMLA was under
challenge in “Vijay Madanlal Choudhary”10. The Hon’ble Supreme Court
held that this provision confirms to the Constitutional safeguards and is
intra-vires the Constitution of India. In “Vijay Madanlal Choudhary”10 the
Hon’ble Supreme Court held as under:
“269. From the bare language of Section 3 of the 2002 Act, it is amply
clear that the offence of money-laundering is an independent offence
regarding the process or activity connected with the proceeds of crime
which had been derived or obtained as a result of criminal activity relating
to or in relation to a scheduled offence. The process or activity can be in
any form — be it one of concealment, possession, acquisition, use of
proceeds of crime as much as projecting it as untainted property or
claiming it to be so. Thus, involvement in any one of such process or
activity connected with the proceeds of crime would constitute offence of
money-laundering. This offence otherwise has nothing to do with the
criminal activity relating to a scheduled offence — except the proceeds of
crime derived or obtained as a result of that crime.
270. Needless to mention that such process or activity can be indulged in
only after the property is derived or obtained as a result of criminal
activity (a scheduled offence). It would be an offence of money-
laundering to indulge in or to assist or being party to the process or activity
connected with the proceeds of crime; and such process or activity in a
given fact situation may be a continuing offence, irrespective of the date
and time of commission of the scheduled offence. In other words, the
criminal activity may have been committed before the same had been
notified as scheduled offence for the purpose of the 2002 Act, but if a
person has indulged in or continues to indulge directly or indirectly in
dealing with proceeds of crime, derived or obtained from such criminal
activity even after it has been notified as scheduled offence, may be liable
to be prosecuted for offence of money-laundering under the 2002 Act —
for continuing to possess or conceal the proceeds of crime (fully or in part)
or retaining possession thereof or uses it in trenches until fully exhausted.
The offence of money-laundering is not dependent on or linked to the date
on which the scheduled offence or if we may say so the predicate offence
has been committed. The relevant date is the date on which the person
indulges in the process or activity connected with such proceeds of crime.
These ingredients are intrinsic in the original provision (Section 3, as
amended until 2013 and were in force till 31.7.2019); and the same has
been merely explained and clarified by way of Explanation vide Finance
(No. 2) Act, 2019. Thus understood, inclusion of Clause (ii) in

13
All India Reporter Karamchari Sangh v. All India Reporter Ltd. : 1988 Supp SCC 472
14
Nand Kishore v. State of Punjab : (1995) 6 SCC 614
23 W.P.(Cr.) No. 68 of 2024
 Explanation inserted in 2019 is of no consequence as it does not alter or
enlarge the scope of Section 3 at all.
271. As mentioned earlier, the rudimentary understanding of ‘money-
laundering’ is that there are three generally accepted stages to money-
laundering, they are:
(a) Placement : which is to move the funds from direct association of the
crime.
(b) Layering : which is disguising the trail to foil pursuit.
(c) Integration : which is making the money available to the criminal from
what seem to be legitimate sources.
272. It is common experience world over that money-laundering can be a
threat to the good functioning of a financial system. However, it is also
the most suitable mode for the criminals deal in such money. It is the
means of livelihood of drug dealers, terrorist, white collar criminals and
so on. Tainted money breeds discontent in any society and in turn leads to
more crime and civil unrest. Thus, the onus on the Government and the
people to identify and seize such money is heavy. If there are any
proactive steps towards such a cause, we cannot but facilitate the good
steps. However, passions aside we must first balance the law to be able to
save the basic tenets of the fundamental rights and laws of this country.
After all, condemning an innocent man is a bigger misfortune than letting
a criminal go.
273. On a bare reading of Section 3, we find no difficulty in encapsulating
the true ambit, given the various arguments advanced. Thus, in the
conspectus of things it must follow that the interpretation put forth by the
respondent will further the purposes and objectives behind the 2002 Act
and also adequately address the recommendations and doubts of the
international body whilst keeping in mind the constitutional limits. It
would, therefore, be just to sustain the argument that the amendment by
way of the Explanation has been brought about only to clarify the already
present words, “any” and “including” which manifests the true meaning
of the definition and clarifies the mist around its true nature.”

25. In “Vijay Madanlal Choudhary”10 the Hon’ble Supreme Court

held that the continued possession or concealment of the proceeds of crime
whether fully or in part shall attract the offence of money-laundering under
the PMLA. In paragraph no. 270 of the reported judgment, the Hon’ble
Supreme Court held that it would be an offence of money-laundering to
indulge in or to assist or be a party to the process or activity connected with
the proceeds of crime; and such process and activity in a given fact-
situation may be a continuing offence irrespective of the date and time of
the commission of the scheduled offence. By way of an example, it has
been clarified that the criminal activity committed even before the same
was notified as the scheduled offence for the PMLA may still attract the
offence of money-laundering if the person has indulged in or continued to
indulge directly or indirectly in dealing with the proceeds of crime, derived
or obtained from such criminal activity even after the same was notified as

24 W.P.(Cr.) No. 68 of 2024

a scheduled offence. Completely in tune with this decision, “Tarun
Kumar”15 holds that the relevant date for examining the involvement of the
person in money-laundering is the date on which the person indulges in the
process or activity connected with the proceeds of crime and the offence of
money-laundering is not dependent or linked to the date on which the
scheduled offence or predicate offence has been committed. However, the
basis for the argument made on behalf of the petitioner is that he is not
accused of committing any scheduled offence and the subject property is
not registered in his name. On the other hand, the ED took a stand that the
illegally acquired subject property is in possession and use of the petitioner
and temporary settlements have been erected and a caretaker is put there to
keep a guard over the property. The acts of the petitioner and Bhanu Pratap
Prasad who was the Revenue Officer in connection to the acquisition and
possession of the properties are scheduled offences and the illegally
acquired property shall be the proceeds of the crime under section 2(1)(u)
of the PMLA because the petitioner is enjoying the said property.
26. A provision in the penal law should normally receive a literal
and strict interpretation. At the same time, looking at the legislative
intendment all enactments concerning socio-economic offence must be
considered “ongoing statute”. Lord Thring, a great draftsman of his time
made the first exhortation of “ongoing statute”. Lord Thring said; “An Act
of Parliament should be deemed to be always speaking”. In “R. v. Ireland”16
the House of Lords rendered its opinion that the Courts must interpret and
apply a statute of any vintage to the world as it exists today. That was a case
where the offence of “assault” in a Victorian statute hitherto understood as
“bodily harm” was interpreted to cover “psychiatry injuries”. Oliver
Wendell Homes Jr., an American Jurist and a Judge of the Supreme Court
of the United States once said: “a word is not a crystal, transparent and
unchanged, it is the skin of the living thought and may vary greatly in color
and content according to the circumstances and time in which it is used”.
In “Maganlal Chhaganlal (P) Ltd.” 17 the Hon’ble Supreme Court

15
Tarun Kumar v. Assistant Director Directorate of Enforcement : 2023 SCC OnLine SC 1486
16
R. v. Ireland : (1998) AC 147
17
Maganlal Chhaganlal (P) Ltd. v. Municipal Corpn. of Greater Bombay : (1974) 2 SCC 402
25 W.P.(Cr.) No. 68 of 2024
advancing a pragmatic approach made the following significant
observations;
“22…… As in life so in law things are not static. Fresh vistas and horizons
may reveal themselves as a result of the impact of new ideas and
developments in different fields of life. Law, if it has to satisfy human
needs and to meet the problems of life, must adapt itself to cope with new
situations. Nobody is so gifted with foresight that he can divine all
possible human events in advance and prescribe proper rules for each of
them. There are, however, certain verities which are of the essence of the
rule of law and no law can afford to do away with them. At the same time
it has to be recognized that there is a continuing process of the growth of
law and one can retard it only at the risk of alienating law from life
itself. …”

27. But the choice is difficult and the problem is perennial. The
choice in choosing between a literal interpretation and a purposive
interpretation of a statutory provision brings to the fore the basic task of the
Court. The primary duty of the Court is to creatively interpret the law and
resolve the conflict in the legislative intention and the difficulty in the
working of law by taking into account the object and real intention of the
Legislature. In doing so, the Court may sometimes be required to adopt a
functional approach and look into the intention of the Legislature by going
beyond and behind the words and phrases used thereunder. The PMLA is a
relatively new enactment. Till date, there is just one concluded trial and the
other cases seem to be stuck in the legal wrangle. In the matter of
interpretation of the provisions in the PMLA, we are of the view that the
provisions thereunder have to be interpreted, expounded and expanded
whenever the need arises keeping in mind the object and purpose behind
the legislation.
28. The gist of the offence of money-laundering as defined under
section 3 of the PMLA is involvement in any process or activity connected
with the proceeds of crime derived or obtained as a result of criminal
activity relating to or in relation to a scheduled offence. Concerning a
scheduled offence, the definition of money-laundering under section 3
encompasses every possible manner of involvement of the person with the
proceeds of crime derived or obtained as a result of that crime. Section 3

26 W.P.(Cr.) No. 68 of 2024

incorporates “every attempt” whether directly or indirectly to conceal,
possess, acquire, or use the proceeds of crime. Even “an attempt” to project
the proceeds of crime as untainted property or attempting to claim the same
to be an untainted property shall come within the sweep of section 3. The
use of the expression “including” in section 3 clearly indicates that the
process and activity connected with the proceeds of crime can be “every
conceivable situation” and cannot be restricted to “six situations” provided
thereunder. That the subject property is not registered in the name of the
petitioner and the revenue or other official records concerning the subject
property are not found forged are such facts that are inconsequential and
irrelevant, having regard to his possession over the subject property.
29. In legal parlance, the expression “possession” has a definite
meaning and connotation and illegal possession of a person over an
immovable property is protected in law to a certain extent. The word
“property” within the meaning under clause (v) to section 2(1) of the PMLA
includes any property or assets of every description and it can be tangible
or intangible. There is a crime registered for forging the revenue records,
falsification of the official records and other scheduled offences. This is the
case pleaded by the ED that by its timely action the intended acts of forgery
and manipulation in the revenue records of the subject property were foiled.
The Register-II and other revenue records pertaining to the subject property
were found missing in the Circle Office. Those documents were seized by
the ED in the course of a search conducted at the premises/rented premises
of Bhanu Pratap Prasad whose association with the petitioner has been
brought on record. In our opinion, any attempt to commit a scheduled
offence has to be read in section 2(1)(u) of the PMLA as the expression
“any criminal activity relating to a scheduled offence” shall encompass an
attempt to commit a scheduled offence. We are fortified in our view by the
Explanation to section 2(1)(u) of the PMLA which clarifies that the
proceeds of crime shall include any property which may directly or
indirectly be derived or obtained as a result of “any criminal activity
relatable to” the scheduled offence. Simply said, there is a property in
possession of the petitioner and there was an attempt to forge the revenue

27 W.P.(Cr.) No. 68 of 2024

records to give the subject property a color of licit acquisition. An attempt
to commit a crime may be a single act or a series of acts but not necessarily
the act which immediately leads to the commission of that crime. The act
of Bhanu Pratap Prasad and others in intentionally removing the revenue
records of the subject property from the Circle Office, concealment of those
records in the premises of Bhanu Pratap Prasad, preserving the details of
the subject property in the mobile phones, sharing of the property details
with the petitioner and others, etc. were the acts towards the commission of
the scheduled offences. The proposal for the construction of a Banquet Hall
over the subject property the plan for which was shared with the petitioner
is also a relevant fact. Therefore, the subject property must be considered
the proceeds of crime which is in forceful possession of the petitioner and
there is prima facie evidence of an attempt to commit the scheduled
offences for legalizing the subject property. To constitute the offence of
money-laundering under section 3 of the PMLA, this is not necessary to
establish that first a crime was committed which included the scheduled
offence. It may so happen, as has happened in this case, that the property
was first grabbed and then the attempt was made to make it lawfully
acquired through illegal acts which shall constitute the scheduled offence
or an attempt to commit the scheduled offence. The interpretation to section
2(1)(u) of the PMLA that we have put is in tune with the intention of the
Parliament and further advances the object and purpose behind the
legislation.
30. In Sadar PS Case No. 272 of 2023, there are serious allegations
of forgery of valuable security, forgery for cheating, using a forged
document as genuine and possession of forged documents such as public
register or valuable security and intending the same to use as genuine. At
the core of these offences is the offence of forgery which is defined under
section 463. The essential ingredient of the offence of forgery is the making
of any written instrument for fraud or deceit. This is implicit in the alleged
commission of the scheduled offence under sections 420, 467 and 471 of
the Indian Penal Code which are included in Part-A to the Schedule that
there were acts and omissions towards wrongful gains by forging valuable

28 W.P.(Cr.) No. 68 of 2024

security. The term “wrongful gain” as defined under section 23 of the
Indian Penal Code refers to any gain by unlawful means of the property to
which the person gaining is not legally entitled. Similarly, the expression
“wrongful loss” means the loss by unlawful means of property to which the
person losing it is legally entitled. The words “valuable security” denote a
document which is, or purports to be, a document whereby any legal right
is created, extended, transferred, restricted, extinguished or released, or
whereby any person acknowledges that he lies under legal liability or, has
not a certain legal right. This is the prosecution case that the petitioner is in
continuing possession, use, and concealment of the properties and there are
strong reasons to believe that he knowingly indulged in such processes and
activities to acquire several landed properties in his name and in the name
of his family members. Section 110 of the Indian Evidence Act provides
that when the question is whether any person is the owner of anything of
which he is shown to be in possession the burden of proving that he is not
the owner is on the person who affirms that he is not the owner. The ED
puts forth a stand that the survey conducted on 20 th April 2023 established
that the subject property is in illegal possession and use of the petitioner.
The WhatsApp chats between Binod Singh and the petitioner contained the
details of several other properties and transactions of huge amounts of
money for transfer and posting of the government officials. Under section
24 of the PMLA, the Court shall presume that the person charged with the
offence of money-laundering is involved with such proceeds of crime. The
presumption under section 24 of the PMLA is a rebuttable presumption and
the accused shall get an opportunity in the trial to demonstrate before the
Court with a reasonable degree of preponderance of probability that he is
not involved in the offence of money-laundering, if the case goes for trial.
In “Rohit Tandon” 18 the Hon’ble Supreme Court observed that the
possession of a huge quantity of demonetized currency and new currency
without disclosing the source from where it was received and the purpose
for which it was received, the accused had failed to dispel the legal

18
Rohit Tandon v. Directorate of Enforcement : (2018) 11 SCC 46

29 W.P.(Cr.) No. 68 of 2024

presumption that he was involved in money-laundering and the property
was the proceeds of crime. The petitioner is believed to be the beneficial
owner of those properties which are kept secreted, undeclared and acquired
out of corrupt practices.
31. The remand order dated 2nd February 2024 is challenged on
similar grounds as aforementioned; that the petitioner is not an accused in
a case for the commission of predicate offence and he is not related to or
connected with any proceeds of crime in any manner whatsoever. The
details of 12 landed properties retrieved from the mobile phone of Bhanu
Pratap Prasad are not admissible in evidence, and any portion of the
property mentioned therein is not registered in the name of the petitioner.
The remand order dated 2nd February 2024 is challenged also on the ground
that the PMLA Court failed to appreciate that above mentioned
12 properties identified by the ED are not the proceeds of crime and the
story concocted by the ED is false and based on surmises and conjectures.
In reply thereto, the ED contended that the petitioner is a party to the
activities connected with the concealment of the original records for
projecting the subject property as an untainted acquisition. The petitioner
in league with Bhanu Pratap Prasad who is accused of committing a
predicate offence has been involved in concealment and falsification of the
records.
32. The validity of section 19 of the PMLA was under challenge
in “Vijay Madanlal Choudhary”10. The Hon’ble Supreme Court held that
this provision has reasonable nexus with the purposes and objects of
prevention of money-laundering and confiscation of the proceeds of crime
involved in money-laundering and prosecution of the persons involved in
the processes or activities connected with the proceeds of crime under the
PMLA Act; the Constitutional validity of section 19 was upheld.
Section 167 of the Code of Criminal Procedure empowers the Judicial
Magistrate to authorize the detention of an accused in the custody of the
police and, until the accused is committed the Court of Sessions, the
Magistrate is vested with the power under section 209 of the Code of
Criminal Procedure to remand an accused to custody. However, even where

30 W.P.(Cr.) No. 68 of 2024

an order of remand is found to be illegal the accused does not get acquitted
and the proceedings do not terminate. The arrest of the petitioner has to be
seen in the context of the power under section 19(1) of the PMLA which
can be exercised during the investigation. In “Adri Dharan Das” 19 the
Hon’ble Supreme Court indicated that there may be circumstances in which
the accused may provide information leading to the discovery of material
facts. In the context of the PMLA, in “V. Senthil Balaji”6 the Hon’ble
Supreme Court held that the investigation is a process that might require an
accused’s custody from time to time as authorized by the competent Court
and no other Court is expected to act as supervisory authority in that process.
The Hon’ble Supreme Court further pointed out that it is for the Magistrate
concerned to decide the question of custody, either being judicial or to an
investigating agency or any other entity in a given case. In paragraph nos.
57 and 58 of the reported judgment6, the Hon’ble Supreme Court held as
under:
“57. While authorising the detention of an accused, the Magistrate has got
a very wide discretion. Such an act is a judicial function and, therefore, a
reasoned order indicating application of mind is certainly warranted. He
may or may not authorise the detention while exercising his judicial
discretion. Investigation is a process which might require an accused's
custody from time to time as authorised by the competent court.
Generally, no other court is expected to act as a supervisory authority in
that process. An act of authorisation pre-supposes the need for custody.
Such a need for a police custody has to be by an order of a Magistrate
rendering his authorisation.
58. The words “such custody as such Magistrate thinks fit” would reiterate
the extent of discretion available to him. It is for the Magistrate concerned
to decide the question of custody, either be it judicial or to an investigating
agency or to any other entity in a given case.”

33. Section 19 of the PMLA provides as under:

19. Power to arrest.—(1) If the Director, Deputy Director, Assistant
Director or any other officer authorised in this behalf by the Central
Government by general or special order, has on the basis of material in his
possession, reason to believe (the reason for such belief to be recorded in
writing) that any person has been guilty of an offence punishable under
this Act, he may arrest such person and shall, as soon as may be, inform
him of the grounds for such arrest.
(2) The Director, Deputy Director, Assistant Director or any other officer
shall, immediately after arrest of such person under sub-section (1),
forward a copy of the order along with the material in his possession,
referred to in that sub-section, to the Adjudicating Authority, in a sealed
envelope, in the manner as may be prescribed and such Adjudicating

19
Adri Dharan Das v. State of W.B. : (2005) 4 SCC 303

31 W.P.(Cr.) No. 68 of 2024

 Authority shall keep such order and material for such period, as may be
prescribed.
(3) Every person arrested under sub-section (1) shall, within twenty-four
hours, be taken to a Special Court or Judicial Magistrate or a Metropolitan
Magistrate, as the case may be, having jurisdiction:
Provided that the period of twenty-four hours shall exclude the time
necessary for the journey from the place of arrest to the Special Court or
Magistrate's Court.

34. The provisions under section 19 of the PMLA are clear and
unambiguous. The power of the arresting officer is well defined and his
duties are prescribed under sub-sections (2) and (3). This is a fundamental
rule of interpretation that if the words of a statute are themselves precise
and unambiguous no more is necessary than to expound those words in
their natural and ordinary sense as the words themselves shall best declare
the intention of the Legislature. The expression “reason to believe”
essentially turns to subjective satisfaction on the part of the arresting
authority under section 19. If there are some reasonable grounds for the
arresting authority to form a belief in good faith and not a mere pretense
that the person is guilty of the offence that would be sufficient to give
jurisdiction under section 19 and whether such grounds are adequate or not
are not the matters for the Court to examine. In “Dr. Partap Singh”20 the
Hon’ble Supreme Court observed that the material on which the belief is
grounded may be secret, may be obtained through intelligence, or
occasionally may be conveyed orally by the informant(s).
35. The ED has pleaded that the petitioner was informed about his
arrest at around 5:00 PM on 31st January 2024 and he left for the Governor's
house without consent and without completing the ongoing proceedings
and therefore the written grounds of arrest could be served on him at 10:00
PM. The grounds of arrest served to the petitioner on 31st January 2024
read as under:
“Grounds of arrest of Shri Hemant Soren under section 19 of the
Prevention of Money Laundering Act, 2002
Case ECIR/No. RNZO/25/2023 dated 26.06.2023
1. On 13.04.2023, searches were conducted at several premises (in
ECIR/RNZO/18/2022) including the premises of Bhanu Pratap Prasad,
Revenue Sub Inspector, Bargain, Ranchi and 11 trunks of voluminous
property documents along with seventeen original registers (पंजी II) were

20
Dr. Partap Singh v. Director of Enforcement : (1985) 3 SCC 72
32 W.P.(Cr.) No. 68 of 2024
seized from his possession. Bhanu Pratap Prasad was custodian of many
original registers (पंजी II) in which the land records (ownership details) are
maintained. Bhanu Pratap Prasad was involved in the corrupt practices
which included falsification of original records and had been a party with
several other persons in their activities linked to the acquisition of landed
properties in fraudulent manners.
2. On the basis of this information, shared with Jharkhand
Government under section 66(2) of PMLA, an FIR bearing no 272/23
dated 01/06/23 was registered by PS Sadar, Ranchi against one Bhanu
Pratap Prasad, Revenue Sub Inspector under section
465/467/468/469/476/466/420/379/474 of IPC. Further, on the basis of
the FIR no. 272/2023 registered by Sadar P. S, Ranchi, ECIR bearing no
RNZO/25/2023 was recorded by Directorate of Enforcement, Ranchi
Zonal office on 26.06.2023. The information shared under section 66(2)
by ED is integral part of the FIR lodged by the Ranchi Police under
section 465/467/468/469/471/466/420/379/474 of IPC out of which
section 420, 467 and 471 are schedule offences.
3. The investigation into the above matter has revealed Bhanu Pratap
Prasad (Revenue Sub-Inspector, Circle Office, Baragai, Ranchi) and
others are a part of a very large syndicate, involved in corrupt practices of
acquiring properties forcefully as well as on the basis of false deeds,
falsification of government records, tampering with original revenue
documents etc.
4. It is revealed that the said Bhanu Pratap Prasad was actively involved
in hatching conspiracies with other persons to acquire and conceal various
properties in illegal manner including the properties which are illegally
acquired and possessed by Shri Hemant Soren. The details of the
properties, which are illegally acquired and possessed by Shri Hemant
Soren have also been recovered from the mobile phone of Bhanu Pratap
Prasad. The said list of 12 landed properties which are adjacently situated
and all- together make make up a very big property of an area of about
850 decimals (8.5 acres) (Details attatched as Annexure-A) have been
recovered from the mobile phone of Bhanu Pratap Prasad. The photo of
the above-mentioned list of landed properties also bears certain hand-
written remarks made by Bhanu Pratap Prasad, after he had made
verification of those parcels of land. Investigation has revealed that this
property is and has been illegally acquired and possessed by Shri Hemant
Soren.
5. That statement of several persons have been recorded under section 50
of PMLA, 2002 which also establishes that property is under illegal
acquisition, possession and use of Shri Hemant Soren and it has been kept
concealed by him.
6. A Survey was conducted under section 16 of the PMLA, 2002 on the
said property which established that the land is in illegal possession,
occupation and use of Shri Hemant Soren.
7. That searches were conducted at the residential premises of Shri
Hemant Soren at 5/1 Shantiniketan, New Delhi-110021. Huge cash
amounting to Rs 36,34,500/- was seized from the cupboard of the room
under his use and occupation along with other documents linked to the
investigation being conducted into the matter of acquisition of landed
properties by fraudulent means.
8. In the instant case, the property as discussed above admeasuring
approximately 8.5 Acres is proceeds of crime which has been in
unauthorised and illegal possession and use of Shri Hemant Soren.

33 W.P.(Cr.) No. 68 of 2024

 9. That as per Section 3 of PMLA, 2002, Shri Hemant Soren has directly
indulged in the process connected with acquisition, possession and the use
of proceeds of crime. Shri Hemant Soren is knowingly a party along with
Bhanu Pratap Prasad and others in the activities connected with
concealment of the original records for projecting the property acquired
by him in an illegal manner as an untainted property. Further, the process
or the activity connected with the acquisition, possession and use of
proceeds of crime by projecting it as untainted property is continuing as
on day as he is still enjoying the said proceeds of crime by its possession,
occupation and use by claiming it as an untainted property.
10. Considering the facts and circumstances as stated above, and taking
into consideration the activities and processes of money laundering in
which Shri Hemant Soren is directly involved and is also a party with the
said Bhanu Pratap Prasad and others, there are sufficient reasons to
believe that Shri Hemant Soren is guilty of the offence of money
laundering as per section 3 of PMLA.
11. Hence as discussed above, Shri Hemant Soren is actually and
knowingly involved in the processes and activities connected with the
acquisition, concealment, possession and use of proceeds of crime and
projecting the said proceeds of crime as untainted property. As such, he is
guilty of the offence of money laundering as defined under section 3 of
PMLA and he is liable to be arrested under section 19 of PMLA, 2002.
Accordingly, I Deovrat Jha, Assistant Director, on the reasons as stated
above, have reasonable grounds to arrest Shri Hemant Soren and as such
I am invoking the powers of arrest conferred upon me under section 19 of
the PMLA, 2002 in the interest of ongoing investigation.”

36. In the context of the plea that the arrest of the petitioner is
arbitrary and illegal and the ED abused its power for extraneous
considerations, this is well remembered that the allegation of malafide
exercise of power in the criminal prosecution must be supported by
extraneous considerations or for unauthorized purposes. This is implicit in
the allegation of malafide that certain acts have been done in bad faith and
to drive home this allegation this is necessary to indicate that there is a
personal bias or the exercise of power is contrary to the object, requirement
and conditions of a valid exercise of power. The allegation of malafide must
therefore be demonstrated either by admitted or proved facts or the
circumstances in the case which amply demonstrate the exercise of powers
for oblique motive. “Bhajan Lal”21 is an authority for the proposition that
the existence of deep-rooted political vendetta is not a ground to quash the
First Information Report. In “J.A.C. Saldanha” 22 the Hon’ble Supreme

21
State of Haryana v. Bhajan Lal : 1992 Supp (1) SCC 335
22
State of Bihar v. J.A.C. Saldanha : (1980) 1 SCC 554

34 W.P.(Cr.) No. 68 of 2024

Court held that malafide of the informant would be of secondary
importance when information about the commission of a cognizable
offence is lodged because it is the material collected during the
investigation that has to pass through the judicial scrutiny when a report is
submitted in the Court. This is also well settled that unless an extraordinary
case of gross abuse of power is made out against the investigating agency
the Court should be quite slow to take note of technical pleas and
unsubstantiated facts stated in the petition. The allegation of malafide
against the arresting officer for exercising the power supposedly with
malice in his mind can only be made by laying a factual foundation in the
pleadings. This also shall bear in the mind of the Court that there is a
presumption in law that the power has been exercised bonafide and in good
faith and the Courts are forbidden from drawing inferences of malafide or
bad faith based on bald allegations. In the present case, the question of
malafides pales into insignificance in the face of the abundance of materials
collected by the ED which prima facie show the involvement of the
petitioner with the proceeds of crime and money-laundering. In “Chandra
Prakash Singh”23 the Hon’ble Supreme Court elucidated the law on the
subject as under:
“34. Thus, as a proposition of law, the burden of proving mala fides is
very heavy on the person who alleges it. Mere allegation is not enough.
Party making such allegations is under the legal obligation to place
specific materials before the court to substantiate the said allegations.
There has to be very strong and convincing evidence to establish the
allegations of mala fides specifically and definitely alleged in the petition
as the same cannot merely be presumed. The presumption under law is in
favour of the bona fides of the order unless contradicted by acceptable
material.”

37. The discussions in the order dated 2nd February 2024 passed
by the Spl. Judge under PMLA in ECIR- 6 of 2023, Ranchi read as under:
“ In view of the rival argument forwarded by the parties and on perusal of
the case record, it transpires that the official complaint vide Enforcement
Case Information Report (ECIR) No. RNZO/25/2023 has been lodged and
now it is alleged that the accused has illegally possessed 8.45 acres of
immovable assets in his favour and that assets has been termed as
"proceeds of crime" defined u/s 2(1)(u) of PML Act 2002 that is tainted
property by commissioning of Schedule Offences under PMLA, 2002 and
projecting the same as untainted property, which is an offence u/s 3 and

23
Chandra Prakash Singh v. Purvanchal Gramin Bank: (2008) 12 SCC 292

35 W.P.(Cr.) No. 68 of 2024

 punishable u/s 4 of PMLA, 2002 (as amended).
The accused, namely Hemant Soren is remanded in this case on
01.02.2024 and he is presently under judicial custody. The authorities of
the Hon'ble Court relied upon by the defence while opposing the E.D.
remand are related to the different facts and circumstances of the
respective cases. There is a cardinal principle of the criminal justice
system is that an individual/ accused must cooperate with the
investigation of a case and the investigating agency and while dealing
with such petition, the court has to consider the nature and gravity of the
accusation and the role of the accused as to whether by taking such
excuses/objections, he is not trying to flee from the fair investigation of
the case. In view of the facts and circumstances of the instant case, in my
considered opinion, remand of accused Hemant Soren sought by the
Enforcement Directorate is necessary and justified for fair and complete
investigation of the matter and there is sufficient reasons for remanding
the accused to the custody of the Agency. The petition filed on behalf of
the 1.O. (ED) is within first 15 days from the date of remand of accused
hence well within time. The investigating agency has also succeeded to
make out a strong case that without the custodial interrogation, further
investigation is not possible. Therefore, considering the aforesaid facts for
proper and just investigation of this case, the accused namely Hemant
Soren is given in custody of E.D. for total period of 5 days i.e. the time
period will be started when the accused handed over to custody in ED by
the Jail authority.
It is hereby made clear that he will be medically examined and
further will not be subjected to physical/mental torture and before
returning the above named accused to judicial custody, he will be again
medically examined. Investigating officer of this case is further directed
to intimate this court about medical examination of accused at the time of
sending him to judicial custody. Further, the above named accused may
be permitted to meet his lawyer as well as his wife/a family member for
half an hour each day if he so wishes during interrogation.
Accordingly, in the light of discussion made hereinabove, the
petition filed on behalf of I.O. (ED) is hereby allowed. Let a copy of this
order be given to Investigating Officer (ED) and Jail Superintendent,
BMC, Jail Hotwar, Ranchi for information and needful.”

38. The requirement in section 19 that the arresting officer must

have reason to believe before he may arrest a person is not that of strict
proof. The test which shall be employed to examine the materials pertaining
to reason to believe must necessarily be the preponderance of probability.
While examining the petitioner’s stand that there is no material even
remotely suggesting his involvement in the commission of the offence
under section 3, this must be remembered that the only requirement in law
is that the decision to arrest the accused should prima facie reflect the
application of mind. The word “prima facie” is a Latin expression that
means “at first sight”. The literal translation of the Latin prima facie would
be “at first phase” or “at first appearance”. In legal parlance, the term
36 W.P.(Cr.) No. 68 of 2024
“prima facie” is used to convey that there exists corroborative evidence to
support a case. The role of Bhanu Pratap Prasad who was posted at Bargai
Circle Office as part of a land-grabbing syndicate came into the light in the
course of inquiry in ECIR No. RNZO/18/2022 which was registered for
the fraudulent acquisition of 4.55 acres of defense land. On 9th February
2023, when an inquiry was conducted at Bargai Circle Office it became
clear that several persons were involved in making false deeds, falsification
of government records and tampering with the original revenue records to
facilitate the acquisition of landed properties in a fraudulent manner. The
ED has laid details of 12 properties under Khata Nos. 109, 210, 221, 223,
227 and 234 which are inside the boundary of a big chunk of plot measuring
about 8.5 acres. The Register-II containing the details of Plot Nos. 983 and
985 in Khata No. 221, Plot No. 984 in Khata No. 210 and Plot No. 993
within Khata No. 227 have been found missing and the other properties
which according to Register-II belong to Khush Kumar, Budhan Ram,
Lodha Pahan, Shashi Bhushan Singh, Bhawani Shankar Lal, Bharat Ram,
Maheshwar Das, Uma Shankar Singh and Vanivrat Rai are entered in
Volume-I, IV and V of Register-II. The information shared by the ED on
4th May 2023 with the Chief Secretary under section 66(2) of the PMLA
contained the details of Register-II, Volume-I, IV and V in which the
properties acquired by the petitioner are entered and these records have
been seized by the ED from the premises of Bhanu Pratap Prasad. There is
no goof-ups in the ED’s case and the statements made in the affidavit-in-
opposition have to be read with reference to the documents appended
therewith and the mere use of some inconsistent or contradictory
expressions in the affidavit cannot be a ground to hold that the materials in
possession of the ED were insufficient or that the arresting officer himself
was confused.
39. This is not a case pleaded by the petitioner that the witnesses
were forced or compelled to give their statement under section 50 of the
PMLA; not even argued. This is also not the case of the petitioner that the
materials produced by the ED are not real. The fabrication and falsification
of the property deeds and revenue records are the matters of record, and

37 W.P.(Cr.) No. 68 of 2024

there is prima facie evidence of the petitioner’s association with Bhanu
Pratap Prasad. At the relevant time, the petitioner was the Chief Minister
and there was manipulation in registering the report in Sadar PS Case No.
272 of 2023. The recovery of huge cash from his Delhi residence is not
denied by the petitioner and the excuse of the illness of his parents for
keeping more than 36 lacs in cash prima facie looks untenable. In this state
of affairs, by raising a technical plea the petitioner cannot wriggle out of
the mess he created for himself. Like the last resort to a losing litigant, an
anxious petitioner has raised the bogey of political vendetta. The case set
up by the ED against the petitioner is not based only on the statements
recorded under section 50 of the PMLA including of those who claimed
themselves real owners of the properties in question, there is an abundance
of documents that lay a foundation for the arrest and remand of the
petitioner to police and judicial custody. At this stage, this is not possible
to hold that the ED has proceeded against the petitioner for no reasons. The
admissibility or otherwise of the materials collected by the ED can be
examined by the Special Court if a prosecution report is filed against the
petitioner. The learned ASG rightly contended that the scheme under the
PMLA does not contemplate a mini-trial at this stage.
40. Lastly, there is no challenge by the petitioner that the grounds
of arrest, memo of arrest and personal search memo were not duly furnished
to him in writing and the compliances under section 19(2) & (3) of the
PMLA were not observed. The Special Court gave police remand of the
petitioner vide orders dated 2nd February 2024, 7th February 2024 and 12th
February 2024 and except the remand order dated 2nd February 2024 the
other two police remand orders and the order of judicial remand dated 15th
February 2024 are not put to challenge by the petitioner. The maxim
“sublato fundamento cadit opus” which means when the foundation goes
the superstructure falls shall not be applied in case of subsequent
remand(s). Every remand order is a separate order and without laying a
challenge to the subsequent remand order(s), the accused must fail in his
attempt to seek a declaration that his custody is bad in law. The challenge
to the remand order dated 2nd February 2024 is of no consequence and it is

38 W.P.(Cr.) No. 68 of 2024

not demonstrated that the arrest of the petitioner was illegal.
41. For the foregoing reasons, we do not see any substance in
W.P.(Cr.) No.68 of 2024 which is, accordingly, dismissed. However, we
make it clear that the observations made in this order are prima facie
opinion of the Court, except interpretation of the provisions of the PMLA,
and that shall not cause any prejudice to the petitioner in future proceeding,
if any, taken out by him.

(Shree Chandrashekhar, A.C.J.)

I agree
(Navneet Kumar, J.)

(Navneet Kumar, J.)

Jharkhand High Court, Ranchi
Dated: 3rd May 2024
R.K/Amit
A.F.R.

39 W.P.(Cr.) No. 68 of 2024