DHARAM SINGH CHHOKER Vs. DIRECTORATE OF ENFORCEMENT

JUDGEMENT

(1.) The petition has been filed, inter alia, for setting aside the petitioner's arrest order dtd. 5/5/2025, Annexure P-46, and all consequential proceedings, including the remand orders dtd. 5/5/2025, 9/5/2025, 13/5/2025 and 17/5/2025, Annexures P-56, P-67, P-69 and P72, respectively, passed by the Special Judge-cum-Sessions Judge, Gurugram, under the Prevention of Money Laundering Act, 2002 (for short, 'PMLA').

(2.) Briefly, the case of the prosecution is that M/s Sai Aaina Farms Private Limited, presently known as M/s Mahira Infratech Private Limited (hereinafter referred to as 'SAFPL') is controlled by family of the present petitioner and his sons, Sikander Singh and Vikas Chhoker. The companies of Chhoker family are known as 'Mahira Group' which primarily deal with real estate, and SAFPL is also one of several such companies under the Group which started affordable group housing project at Sector 68, Gurugram. SAFPL applied for licences/permissions to the Department of Town and Country Planning, Haryana, and was granted licence no.106/2017 to build around 1500 flats in an area of about 10 acres; the project was required to be completed by 2021-22.

(3.) In this factual background, Mr. Vikram Chaudhri, learned senior counsel for the petitioner has contended that the petitioner is a senior citizen, aged about sixty-four years, and is a former member of Haryana Legislative Assembly. He has been treated in a high-handed and most arbitrary manner by arresting him from a Hotel around 09:30 pm on 4/5/2025, after being manhandled and brutally assaulted by the ED officials leading to grievous injuries, and a fractured left elbow. This is despite the fact he had joined the investigation and appeared before the ED on 12/4/2024, pursuant to the directions issued by the Supreme Court in SLP (Criminal) no. 3867 of 2024, and had not been arrested. The petitioner was actually taken in custody from a Hotel in Delhi on 4/5/2025, whereas he was shown to have been arrested the next day in the ED Zonal Office, Gurugram, at 02:37 am. The procedure followed in arresting him is in violation of law and provisions of Sec. 19 of the PMLA, whereunder the arrest can only be made by an authorised officer on the basis of material in his possession, and 'reasons to believe' to be recorded in writing that the person is guilty of an offence punishable under the Act; and immediately after the arrest a copy of the order of arrest along with the material has to be forwarded to the adjudicating authority under a sealed cover. The mandatory procedure was not followed by the ED officials, and the petitioner was arrested on 4/5/2025 around 09:30 pm, but compliance of Sec. 19 of the PMLA was statedly made only on the following day, i.e., on 5/5/2025 around 02:37 am, as claimed by the ED itself. Besides, there was no material with the authorised officer to arrest the petitioner, nor have any 'reasons to believe' on the basis of admissible material been recorded in writing. As per the settled law in Arvind Kejriwal v. Directorate of Enforcement, 2025 2 SCC 248, the material, i.e., documents and statements have to be admissible in evidence. In arresting the petitioner the mandate of Sec. 19 PMLA has been totally ignored which renders the petitioner's detention illegal. The legal parameters laid down in Vijay Madanlal Choudhary and others v. Union of India and others, 2022 SCC Online SC 929 have also been violated with impunity by the ED.