Bombay High Court Criticizes Enforcement Directorate's Late-Night Statement Recording Practices

Bombay HC criticizes ED for late-night statements recording violating 'right to sleep'. Dismisses writ petition challenging arrest & remand. Directs ED to issue guidelines. Case: Ram Kotumal Issrani v. Directorate of Enforcement.

In a recent ruling, the Bombay High Court criticized the Enforcement Directorate (ED) for its practice of recording statements of summoned individuals under section 50 of the Prevention of Money Laundering Act (PMLA) late at night. The court emphasized the fundamental right to sleep as a basic human requirement.

"The 'right to sleep' / 'right to blink' is a basic human requirement, inasmuch as, non-providing of the same, violates a person's human rights. It affects a person's health, may impair his mental faculties, cognitive skills and so on. The said person, so summoned, cannot be deprived of his basic human right i.e. right to sleep, by the agency, beyond a reasonable time. Statements must necessarily be recorded during earthly hours and not in the night when the person's cognitive skills may be impaired," the court observed.

A division bench comprising Justice Revati Mohite Dere and Justice Manjusha Deshpande directed the ED to issue guidelines for recording statements under Section 50 of the PMLA, ensuring respect for individuals' basic human rights.

"Consent is immaterial. Recording of statement, at unearthly hours, definitely results in deprivation of a person's sleep, a basic human right of an individual. We disapprove this practice. Thus, we deem it appropriate to direct the ED to issue a circular/directions, as to the timings, for recording of statements, when summons under Section 50 of the PMLA are issued, having regard to what is observed by us hereinabove."

The court made these remarks while dismissing a writ petition filed by one Ram Kotumal Issrani challenging the legality of his arrest and subsequent remand by the ED passed by the Special PMLA Court in Mumbai on August 8, 2023.

Issrani claimed that he was made to wait in the ED office and his statement was recorded from 10:30 pm till 3:00 am. He alleged that he was interrogated all night despite being medically unfit, violating his fundamental right to sleep.

He argued that the arrest and remand were illegal as he was not produced before the Special Court within 24 hours of his arrest, as mandated by law. He contended that his liberty was curtailed from the moment he entered the ED office on August 7, 2023, as his mobile phone was seized, and he was surrounded by officers, restricting his movements.

The prosecution, however, argued that Issrani was not detained but voluntarily attended the ED office under a lawful summons. It asserted that Issrani was not an accused until his arrest and was produced before the Special Court within 24 hours. The prosecution submitted that Issrani had no objection to the recording of his statement belatedly and hence, the same was recorded.

The court concluded from the timeline of events that Issrani was not in custody when he entered the ED office under the summons. It held that Issrani became an accused only upon his arrest and was produced before the court within 24 hours, even considering travel time.

Regarding the requirement to produce Issrani before the nearest magistrate, the court clarified that it applies in situations where it's impossible to produce the accused before the jurisdictional magistrate within 24 hours.

The court deprecated the late-night recording of Issrani's statement, which continued until 3:30 am. It highlighted that under Section 50 of the PMLA, a summoned person is not necessarily an accused but could be a witness or someone associated with the offense being investigated.

The court stressed that investigation under the PMLA differs from that under the Criminal Procedure Code (CrPC) and stated that statements under Section 50 should be recorded during reasonable hours, respecting the individual's right to sleep. The court noted that Issrani had previously cooperated with investigations and could have been summoned on a different day.

Ultimately, the court dismissed the petition, finding no merit in the allegations of illegality in the arrest and remand. However, it issued directions to the ED to comply with its guidelines on recording statements, setting a date for compliance monitoring on September 9, 2024.