Court raps ED, releases businessman arrested in UPA's Embraer deal

In an embarrassment to the Enforcement Directorate (ED), a Delhi court on Thursday termed the arrest of an accused in a money laundering case linked to a UPA-era defence deal with aircraft manufacturer Embraer ”illegal” and ordered his release.

Special Judge Anil Antil noted the agency had arrested Singapore-based businessman Dev Inder Bhalla on the basis of a non-bailable warrant issued in 2018, while it had already filed a chargesheet after that and its cognizance was taken in March 2021.

The court had issued summons to the accused persons and when those remained unserved, fresh summons were issued.

”So, when after carrying out the investigation, complaint/ chargesheet has been filed against the accused herein; cognizance of the offences has been taken; summons have been issued pursuant to that, the act of the agency in apprehending/ arresting the accused without permission of the court, and/or seeking his police custody remand is totally unjustified in the given facts and circumstances of the case,” the judge said.

The matter pertains to the supply of 3 EMP-145 aircraft to the Government of India.

Allegation against Dev Inder Bhalla was that he created shell companies to launder money received as commission in the aircraft deal.

Bhalla, an alleged middleman in the case, was arrested by the Enforcement Directorate at Netaji Subhas Chandra Bose International Airport, Kolkata, on February 13, 2023.

The judge said when the court has applied its judicial mind after going through the available record and cognisance of the offences has been taken, summons have been issued against the accused persons, then it does not lie within the powers of the investigating agency to arrest the accused and seek their custody remand simply on the plea that further investigation regarding the accused was pending.

"The said plea (ED's remand application) appears to be routinely mentioned in a case of each accused in the complaint so filed, and the agency in my view cannot seek their police custody during further investigation of the case at hand. Acceding to the request of the agency would tantamount to relegating the accused to the stage of pre-cognisance which is, I would say, impermissible in law," the judge said.

The judge asked if the accused may intend to appear before the court to attend trial or the accused is present in person in the court along with his surety pursuant to the summons issued to him, can the agency still arrest him merely by stating that his remand is required at this stage.

"And/or maybe the accused is on interim bail or seeking regular bail by moving such applications, can the agency say that NBWs that were taken prior to filing of the chargesheet / complaint case on which cognisance has already been taken and the said accused has been summoned by the court pursuant thereto, and still arrest him and seek his PC, I would absolutely say No. It is not justified and permissible as per the provisions of the CrPC," the judge said.

Admittedly, NBWs were issued against the accused by the court during the investigation to procure his attendance/presence for investigation of the case, but significantly thereafter, as noted above at the cost of repetition, the investigation was duly carried out by the investigating agency, and pursuant thereto, the complaint was filed against the accused herein along with other co-accused persons, the judge said.

"Thereby, the IO was duty bound to hand over the unexecuted NBWs so issued to the court at the time of filing the complaint in the present matter, which has not been done by the department for the plausible reasons best known to them, nor the said fact was apprised to the court at that time or even thereafter,” the judge said.

The court observed that on its specific query regarding the steps taken by the agency about the execution of the NBWs, the prosecutor after discussing with the probe officer of the case "candidly admitted to the fact that no steps whatsoever were taken by the agency after the NBWs were taken from the court in January 2018".

"Even otherwise also, the proper recourse available to the agency was to hand over the said NBWs outstanding against the accused as and when it came to their knowledge, and the act of the agency apprehending the accused in terms of said NBWs is not justified.

"The agency was not legally empowered to arrest the accused without the indulgence of the court, nor is it empowered now legally to seek his custody remand at this stage of the case, knowing fully well the fact that the accused has been summoned by the court on their own complaint and request after taking cognizance,” the judge said.

The judge added, the agency cannot on one hand carry summons to execute it for his appearance and on the other take aid of the NBW to justify arrest.

The judge held that the arrest and the custody of the accused was not justified and ordered the businessman's release.