RAJIV JAIN Vs. STATE

JUDGEMENT

(1.) It is trite that the Special Judge under Prevention of Money Laundering Act, 2002 (in short "PMLA")/Magistrate is not a wing of the Police but is part of the judicial set up of the country. The order has to be passed by a Judicial Magistrate acting in a judicial capacity. It is therefore, his duty to see that the custody is the right custody and the order has to be passed with the ultimate object of securing justice. He has to act independently to determine the nature of the custody. He can change nature of custody from time to time. However, he cannot order police custody beyond the period of fifteen days.

(2.) It is also settled position of law under Sec. 167 (2) of the Code of Criminal Procedure, 1973 (in short "Cr.P.C.") that the Magistrate/Special Judge under PMLA can in the first instance authorise the detention of the accused in custody i.e. either police or judicial from time to time but the total period of detention cannot exceed fifteen days in the while. Within this period of fifteen days there can be more than one order changing the nature of such custody either from police to judicial or vice-versa. This position in law settled by the Division Bench of this Court long back in the case of State (Delhi Admn.) Vs. Dharam Pal, (1982) 21 DLT 50, was approved by the Honourable Supreme Court in Central Bureau of Investigation, Special Investigation Cell-I, New Delhi, Vs. Anupam J. Kulkarni, (1992) 3 SCC 141, while interpreting Sec. 167 (2) of the Cr.P.C.

(3.) Raising these questions both the petitioners have impugned the order dated 28th Aug., 2017 while invoking the writ jurisdiction of this Court under Art. 226/227 of the Constitution of India for issuance of writ of mandamus to set aside the order dated 28th Aug., 2017 passed by the Court of learned ASJ, Patiala House Court, New Delhi, in relation to ECIR/DLZO/01/2015/AD (VM) dated 12th Feb., 2015 registered by the Enforcement Directorate, under Sec. 3 and 4 of the PMLA, whereby the petitioners were remanded to another spell of ED/Police custody for 10 days.