SURENDER KUMAR BANSAL Vs. DIRECTORATE OF ENFORCEMENT

JUDGEMENT

(1.) The present petition has been filed by the petitioner seeking a writ of Habeas Corpus to forthwith release the petitioner from illegal custody in a criminal case pending before the learned Special Judge, P.C.Act-CBI-03, Rouse Avenue District Courts, titled as "Asstt. Director PMLA Vs. SSK Trading Pvt. Ltd. and Ors." in ECIR No. 06/DLZO-1/2018 dtd. 8/5/2018 recorded by the Directorate of Enforcement as also setting aside of the order dtd. 24/1/2023 passed by the learned Special Judge and the consequent remand of the petitioner herein till 21/2/2023.

(2.) The brief background resulting in filing of the present writ petition is that the petitioner was arrayed as an accused in the above-noted ECIR and was arrested on 15/11/2022. The petitioner was remanded to judicial custody for 6 days on 16/11/2022 and thereafter, for 6 days till 22/11/2022, following which, the petitioner was remanded to judicial custody which order of remand was extended by the learned Special Judge from time to time under Sec. 167 CrPC. On 13/1/2023, the respondent filed the complaint and the matter was adjourned by the learned Special Judge to 24/1/2023 for consideration on the complaint. On 24/1/2023, learned Special Judge without taking cognizance of the complaint adjourned the proceedings by almost a month i.e. till 21/2/2023 and in the meantime, no remand order was passed. Thus, the petitioner approached this Court by way of the present petition filed on 8/2/2023 which came up before this Court for the first time on 9/2/2023 when notice was accepted on behalf of the Enforcement Directorate as also the State, the respondent No. 2 herein. Vide said order dtd. 9/2/2023, reply was directed to be filed before the next date with advance copy to the learned counsel for the petitioner and the writ petition was listed for 20/1/2023. When the matter came up before the Court on 20/2/2023, it was transferred to another Bench and was listed before this Bench today. In the meantime, the respondent No. 1 filed its affidavit on 18/2/2023 with advance copy to the petitioner.

(3.) Mr.Dayan Krishnan, learned Senior Counsel appearing on behalf of the petitioner contends that on the filing of the complaint on 13/1/2023, though the petitioner was not entitled to default bail as the complaint was filed within 60 days, however, since no cognizance was taken by the learned Special Court, the procedure as envisaged under Sec. 309 CrPC did not commence and the proceedings being still under Sec. 167 CrPC, the petitioner was required to be remanded to judicial custody for which, an application was also filed by the respondent-Directorate of Enforcement. However, the learned Special Court specifically dismissed the said application as infructuous in view of the complaint having been filed. He states that the custody of an accused cannot be a vacuum and there should be specific order for remand to judicial custody and in the absence thereof, the custody of the petitioner is illegal and thus, he is entitled to be released forthwith.