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Case Commentary Prabir Purkayastha v. State of NCT of Delhi

Case Comment, Publications

Appellant: Prabir Purkayastha

Respondent: State (NCT of Delhi)

Nature of The Case: Criminal Case 

Jurisdiction: Criminal Appellate Jurisdiction

Date of Judgement: 15th May, 2024

Bench: J. B. R. Gavai and J. Sandeep Mehta

Legal Provisions: UAPA- Sec. 13, 16, 17, 18, 22(C); IPC – Sec. 153(A) [196, BNS], 120(B) [61(2), BNS]; PMLA – Sec. 3, 4

Facts

  • The officers of PS Special Cell, New Delhi, conducted extensive raids on the residential and office premises of the appellant and M/s. PPK Newsclick Studio Pvt. Ltd., where the appellant served as Director. These actions were linked to FIR No. 224/2023, dated August 17, 2023, registered at PS Special Cell under sections 13, 16, 17, 18, and 22C of the Unlawful Activities (Prevention) Act, 1967 (UAPA) and sections 153A and 120B of the Indian Penal Code, 1860 (IPC).
  • During the search and seizure, multiple documents and digital devices belonging to the appellant, the company, and its employees were confiscated. Subsequently, the appellant was arrested on October 3, 2023, as recorded in the arrest memo prepared by PS Special Cell.
  • The arrest memo was in a computerized format and lacked any information specifying the ‘grounds of arrest’ for the appellant.
  • On October 4, 2023, the appellant was presented before the Additional Sessions Judge-02, New Delhi (referred to as the ‘Remand Judge’). The court ordered seven days of police custody for the appellant.
  • The appellant’s counsel, Shri Kapil Sibal, strongly criticized the remand proceedings, alleging manipulation and later insertions in the remand order. To address these concerns, the remand order dated October 4, 2023, was reproduced in pictorial form as part of the judgment.
  • Another FIR (FIR no. 116, dated August, 26, 2020) had been registered by PS EWO alleging violation of foreign direct investment regulations and other laws of the country by the appellant and the company, thereby causing loss to the government. By treating the EOW FIR as disclosing predicate offences, the ED registered an Enforcement Case Information Report (ECIR) for the offences punishable under Sec. 3 and 4 of the Prevention of Money-Laundering Act, 2002 (PMLA).
  • The company challenged the ECIR through Writ Petitions Nos. 1129 and 1130 of 2021, resulting in the Delhi High Court granting interim protection against coercive actions on June 21, 2021. Additionally, the appellant was granted interim protection through an anticipatory bail order on July 7, 2021.
  • FIR No. 224 of 2023 was alleged to be based on conjectures and lack substantive evidence. The appellant claimed the FIR, provided to them much later, contained a fictional narrative without any factual or material basis justifying its registration.
  • The remand order was signed by the Remand Judge at 6:00 a.m., as noted in the order. It was alleged that the appellant and his counsel were not provided with the grounds of arrest prior to the order being passed, depriving them of the opportunity to oppose the police custody remand or seek bail.
  • On these grounds, Shri Sibal urged the Court to allow the appeal, annul the impugned orders, and order the appellant’s release from custody concerning the aforementioned FIR.

Issues Raised

  • Whether the arrest of the appellant violated fundamental rights under Articles 21 and 22 of the Constitution of India due to the absence of communicated grounds for arrest in the computerized arrest memo?
  • Whether the remand order dated October 4, 2023, passed by the Remand Judge was null and void due to alleged violations of the appellant’s constitutional rights, including the right to consult and be defended by a legal practitioner under Article 22?
  • Whether the non-availability of FIR No. 224/2023 in the public domain, or to the appellant until his arrest and remand contravened Articles 20, 21, and 22 of the Constitution?
  • Whether it is mandatory to communicate the grounds of arrest or detention in writing to the accused under the constitutional mandate of Articles 22(1) and 22(5)?
  • Whether the arrest and subsequent police custody remand violated the appellant’s fundamental rights, warranting quashing of the remand order and immediate release?
  • Whether the protections afforded under Article 22(5) extend to requiring written communication of grounds for arrest or detention to the appellant?

Contentions

Contentions from The Side of Appellant

Shri Kapil Sibal, learned Senior Counsel, appeared for the appellant, and the contentions were:

  • Non-disclosure of FIR and Grounds of Arrest – FIR was provided only after remand; the arrest memo lacked the specific grounds of arrest. Thus, violating Art.22(1).
  • Violation of Due Process – the appellant was presented before the Remand Judge at 6:00 a.m. without notifying his chosen counsel, denying him legal representation of his choice.
  • Mala Fide FIR Registration – FIR was alleged to be fabricated to bypass existing protections and victimize the appellant without a valid basis.
  • Lack of Evidence – FIR lacked specific incidents/ evidence linking the appellant to the alleges offences.
  • Relevant Precedent – Guidelines from the case of Pankaj Bansal v. Union of India, mandating clear communication of grounds for arrest under UAPA were not fulfilled.

Contentions from The Side of Respondent

Shri Suryaprakash V. Raju, learned Additional Solicitor General (ASG) appeared for the respondent, and the contentions were:

  • Prospective application of Pankaj Bansal v. Union of India – the judgement in Pankaj Bansal v. Union of India is prospective, as clarified in Ram Kishor Arora. The remand occurred before the Pankaj Bansal judgement was publicly available, so compliance with its directions cannot be expected.
  • Timing of Remand Order – the appellant was allegedly remanded to police custody after 7:00 a.m., as per the appellant’s own pleadings, negating claims of illegality in the remand process.
  • No mandate for Written Grounds under Art.22 – Art. 22(1) and 22(5) does not explicitly require that the grounds of arrest or detention be provided in writing to the accused.
  • Right to Legal Representation was complied with – the appellant’s relative, Shri Rishabh Bailey, was informed of the remand proceedings and had notified the appellant’s counsel, Shri Arshdeep Khurana. The counsel’s objections to police custody remand were transmitted via Whatsapp and acknowledged in the remand order.
  • Distinction between PMLA and UAPA Provisions – Sec. 43(A) and 43(B) of the UAPA differ significantly from Sec. 19 of the PMLA, and the Pankaj Bansal ruling does not apply to UAPA cases.

Rationale

  • The right to be informed of the grounds of arrest is a fundamental right under Art. 22(1). Failure to communicate these grounds before the remand order vitiates the arrest and remand process.
  • FIR No. 224/2023 was not made available to the appellant until October 5, 2023, well after the remand order had been passed. This lack of communication deprived the appellant of the opportunity to challenge his arrest and oppose the remand.
  • The appellant’s chosen counsel was informed of the remand hearing only after the order was passed at 6:00 a.m. The subsequent claim that the counsel was heard via phone is undermined by evidence of delayed communication and potential alterations in the remand order.
  • The Court noted visible differences in the script of the remand order, suggesting subsequent insertions indicating communication with the appellant’s counsel. This raised questions about the procedural integrity of the remand process.
  • The FIR and remand application relied on conjectures, with no concrete evidence linking the appellant to the alleged offenses, such as creating or publishing an incorrect map of India. The allegations were deemed speculative and insufficient to justify the arrest.
  • The procedural violations, including the failure to provide intelligible grounds of arrest and denial of an effective hearing for the appellant’s counsel, rendered the arrest and remand invalid.

Defects of Law

  • Second FIR on same facts – FIR No. 224 (2023) was filed on identical facts as FIR No. 116 (2020), violating the principle against multiple FIRs for the same cause of action.
  • Non-Disclosure of FIR – the copy of FIR No. 224 was neither uploaded not provided to the appellant until after the remand order was passed.
  • Violation of Art. 22(1) and CrPC Sec. 50 – the grounds of arrest were neither communicated orally, nor in writing to the appellant, undermining constitutional and statutory protections.
  • Irregular Remand Proceedings – the remand order was passed at 6:00 a.m. without prior communication to the appellant’s advocate, rendering the opportunity to oppose the remand ineffective. Moreover, alterations in the remand order indicated subsequent insertion of lines about communication with the appellant’s counsel, casting doubt on procedural integrity.
  • Lack of Evidence – allegations in the FIRs lacked substantive evidence and therefore it could be concluded that they were mere assumptions and conjectures.

Conclusion

The arrest and remand of the appellant were found to be procedurally flawed and in violation of constitutional safeguards under Article 22(1) and statutory mandates of the PMLA. The failure to provide the grounds of arrest in writing, the non-disclosure of FIR, and irregularities in remand proceedings rendered the process illegal. Consequently, the arrest, remand order, and High Court decision were quashed. The appellant was granted bail, with the Court clarifying that its findings do not prejudice the merits of the case.

Public Reaction

The judgment was widely praised for reinforcing press freedom and procedural safeguards under UAPA. Media and civil liberties groups hailed it as a victory against state overreach, while legal analysts highlighted its emphasis on written justification for arrests, ensuring greater accountability.

Submitted By: Prarthi Malani

Symbiosis Law School, Pune.