The Enforcement Directorate has no right to confine people within a premises during search and seizure operations in money laundering cases, the Punjab and Haryana High Court said.
Justice Vikas Bahl made the observation while setting aside the arrests of former Indian National Lok Dal MLA Dilbagh Singh and another accused, Kulwinder Singh. The judgement was pronounced on February 8 and was made public on Tuesday. The court had ordered the immediate release of the petitioners.
The two were booked under the Prevention of Money Laundering Act in connection with allegations of illegal mining. They were arrested on January 8.
Dilbagh Singh and Kulwinder Singh had moved the High Court challenging their arrest and the orders remanding them to Enforcement Directorate custody.
They also alleged that the central agency had illegally detained them, along with their family members, from January 4 to January 8 as search and seizure operations were undertaken at their homes. They told the court that they were illegally arrested on January 8.
The High Court, in its judgement said, that there was nothing that stopped people whose premises were being searched from carrying out their daily routine, including going to their place of work.
The Enforcement Directorate officials had the right to ask an individual to open locks, safes and cupboards during a search and seizure operation, the judgement said. The central agency also had the right to break open the items if an individual did not comply.
But the central agency did not “have a right to restrain the movements of the said persons i.e. the petitioners in the present case within the premises”, the High Court said.
The Enforcement Directorate told the court that the petitioners had to be present under its rules for a search and seizure operation as the items were in their possession.
However, the court said that the rules on search and seizure gave an individual the right to be present when their premises were being searched. But the Enforcement Directorate did not have the right to demand their presence during an operation.
“Reading of the said provision would show that the occupant of the building cannot be forced to attend the search much less to stay confined in the premises for days altogether till the time the search is concluded,” the court said.
Bahl also said that Enforcement Directorate officials could not detain people who were being searched for more than 24 hours without presenting them before a gazetted officer or a magistrate under Section 18 (provision enabling searches by the central agency) of the Prevention of Money Laundering Act.
The court said that the central agency had not invoked Section 18 in the petitioner’s case and could not have detained them. It added that in such a situation, the petitioners would be deemed to have been arrested from January 4.
The judgement also said that the special court under the Prevention of Money Laundering Act, when remanding the petitioners to the central agency’s custody, had not seen whether they had been arrested in compliance with Section 19 of the Act.
Section 19 of the Prevention of Money Laundering Act empowers the Enforcement Directorate to arrest individuals based on the material in their possession, providing a reasonable basis to suspect that an individual has committed an offence.
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