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S. 50 PMLA | ED Can't Record...

S. 50 PMLA | ED Can't Record Statement At Night By

Depriving Person's Right To Sleep; Leads To Impairment
Of Cognitive Skills: Bombay High Court
Amisha Shrivastava
(/amisha-shrivastava)
16 Apr 2024 9:58 PM

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The Bombay High Court recently criticized the Enforcement Directorate for its
practice of recording statements of persons summoned under section 50 of PMLA
late at night, emphasizing the 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.

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A division bench of 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.”

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

The petitioner claimed that he was made to wait in the office of the ED 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.

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

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From the timeline of events, the court concluded that the petitioner was not in
custody when he entered the ED office under the summons. It held that the petitioner
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 the petitioner 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 the petitioner'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
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 the
petitioner 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.

Case no. – Criminal Writ Petition (Stamp) No. 15417 of 2023

Case Title – Ram Kotumal Issrani, v. Directorate of Enforcement and Ors.

Click here To Read/Download Judgment (https://www.livelaw.in/pdf_upload/s-50-pmla-ed-cannot-record-
statement-overnight-when-the-person-534234.pdf)

Tags Bombay High Court (https://www.livelaw.in/tags/bombay-high-court)

Justice Revati Mohite-Dere (https://www.livelaw.in/tags/justice-revati-mohite-dere)

Justice Manjusha Deshpande (https://www.livelaw.in/tags/justice-manjusha-deshpande)

Right to Sleep (https://www.livelaw.in/tags/right-to-sleep)

PMLA (https://www.livelaw.in/tags/pmla)

Enforcement Directorate (https://www.livelaw.in/tags/enforcement-directorate)

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