The order of the court was based on the reasoning that the copy of the remand application was not provided to the appellant or his counsel before passing the remand order on October 4, 2023. Therefore, the Court held that the arrest and the remand are vitiated.

While pronouncing the judgement, the bench noted that “There is no hesitation in the mind of the Court to reach to a conclusion that a copy of the remand application, in the purported exercise of the communication of the grounds of arrest in writing, was not provided to the accused-appellant or his counsel before the passing of the remand order dated 4th October, 2023, which vitiates the arrest and the subsequent remand of the appellant. As a result, the appellant is entitled to a direction for release from custody by applying the ration of the judgment rendered by this court in Pankaj Bansal.”

Pursuant to Prabir’s arrest and remand being declared invalid and being set aside, the bench ordered for the release of Prabir. However, release will be subject to Prabir furnishing bail and bonds set by the trial Court since chargesheet has been filed in the said case. The chargesheet had been filed in the court on March 30, 2024.

Directing for his release, the bench stated “Appellant shall be released from custody on satisfaction of trial court. Appeal allowed.”

It is to be noted that as the bench was pronouncing the judgment, ASG Raju had sought a clarification from the bench regarding the authorities being precluded being exercising their “correct powers of arrest”, to which Justice Gavai replied by stating that the bench has not said anything on that and that the authorities are permitted to take such action that is permitted under law.

Notably, Senior Advocate Kapil Sibal appeared for Purkayastha and Additional Solicitor General SV Raju appeared for the Delhi Police. Prabir will be released based on the present order after spending 7 months in jail.

Arguments on illegality of remand:

It is essential to note that the present verdict pursuant to the conclusion of arguments in the case on April 30. During the hearing, the bench had questioned the hastiness in which Prabir was arrested and then presented in the Magistrate’s court, without supplying the necessary remand application and documents to the counsel of the accused.

Justice Mehta had asked ASG Raju “First please answer this, why did you not inform his lawyer? What was the hot haste in producing him at 6 AM? You arrested him at 5.45 PM previous day. You had the whole day before you. Why the haste?”

The bench had also questioned why the accused was not allowed to have his own lawyer and a state provided legal aid counsel was present at the time of magistrate’s hearing by reminding ASG Raju that “Principles of natural justice required that his lawyer was there. You could have produced him at 10 AM or 11 AM.”

As per LiveLaw’s live coverage of the hearing, Justice Gavai had further stated that “What was the need to produce him without his lawyer? If you could give him the remand application on WhatsApp, you could have given him at least one hour notice.”

When ASG Raju had raised the contention that the remand application had been sent to lawyer at around 7.07 am (the accused had been presented before the Magistrate at 6 am) and he had later sent the objections, the bench had objected to the same by holding the said argument to be redundant as by that time the remand order had been passed. On this, Justice Gavai had remarked “It is like giving an opportunity of hearing after the order was passed”.

Justice Mehta had also observed that “Without any reason, the whole process was done in hot haste.” He had further stated “Mr. Raju, at least before the remand application, the grounds of arrest must be communicated.”

It is also essential to note that the Court had also rejected the argument raised by the Delhi police, that the time recorded in the remand order (6 AM) was wrong and that it was passed after serving the counsel of the accused. However, the Court had asserted that it will go only by the time recorded in the judicial order.

Senior advocate Kapil Sibal had also responded to the arguments raised by ASG by bringing to focus the constitutional and fundamental safeguards provided to the citizens against arbitrary arrests as well as the precedents set by law. Senior advocate Kapil Sibal had stated that “What is the point of saying that I have the grounds at the time of arrest but I will not show it to you? What is the constitution reason for not informing me? The whole premise of the argument is wrong.”

He had also argued upon the differences that exist between UAPA and The Prevention of Money Laundering Act, 2002 by highlighting that “When you are taking the liberty of the people, the discretion must have some basis…UAPA, to that extent is different from PMLA because under UAPA you would have that kind of information that you would not under PMLA.”

Brief background of the case:

Prabir Purkayastha has been in custody since October 2, 2023 after being booked under the Unlawful Activities (Prevention) Act. Prabir had approached the Constitutional Courts challenging the legality of his arrest by contending that the grounds of arrest were not supplied to him in writing as mandated by the Supreme Court’s judgment in Pankaj Bansal v. Union of India.

On October 16, 2023, Prabir had moved the Supreme Court against the October 5 order of the Delhi High Court, through which the Delhi HC bench of Justice Tushar Rao Gedela had upheld the said remand order by stating that Purkayastha was indeed informed of the grounds within the “as soon as maybe” requirement.  Prabir had then moved the Supreme Court assailing said decision of the Delhi High Court. Notably, in today’s verdict, the Supreme Court set aside the Delhi High Court’s judgment as well.

Co-accused and NewsClick human resources head Amit Chakraborty had also approached the top court challenging his arrest, but he was allowed to withdraw his plea after he turned approver for the Enforcement Directorate and was granted a pardon by the Delhi High Court.

While the case was pending, the court had directed the constitution of a board by the All India Institute of Medical Science (AIIMS) for Purkayastha’s independent medical evaluation. This report was received by the Supreme Court on March 20.  The Court had directed that a copy of the same be supplied to Prabir’s counsels.

Related:

Bail not Jail: SC tells Bombay HC to decide bail applications on priority, cites violations of personal Liberty, violation of Article 21

Unjust detention: Gautam Navlakha’s bail victory highlights insufficient evidence

Jammu & Kashmir HC: Fahad Shah granted bail after spending 21 months in jail

Punjab & Haryana HC: Duty of the court to be more onerous, bail cannot be denied just because serious allegations

The post After spending 7 months behind bars, Supreme Court declares the arrest and remand of NewsClick founder Prabir Purkayastha illegal! appeared first on SabrangIndia.

The Enforcement Directorate (ED) has raided the homes of senior journalists and officials associated with independent media portal NewsClick.in. The raids reportedly began at 10 AM on January 9 in Delhi, at the homes of the journalists as well as the office of the news portal.

According to news reports, and information shared by journalists over social media, those raided included NewsClick’s owner senior journalist Prabir Purkayastha and its editor Pranjal. The Quint, shared on twitter that according to the ED these raids are linked to an alleged money laundering case. It added that the probe was looking at alleged funding received from “dubious companies” abroad.

ED is conducting raids/searches at #newsclick news website’s Directors offices in a money laundering case for taking foreign funding from some dubious companies abroad: ED @TheQuint

— Poonam Agarwal (@poonamjourno) February 9, 2021

Journalists including those who have been associated with the portal also confirmed the ED raids.

ED raid at https://t.co/WK95HKtJzE ‘s office & Directors/Shareholders home since 10am this morning. @newsclickin . This is where I do my shows Bol ke lab aazaad hain tere and Newschakra

— Abhisar Sharma (@abhisar_sharma) February 9, 2021

Modi government’s assault on media continues with ED raid on @newsclickin office, homes of owner Prabir Purkayastha and editor Pranjal, in Delhi. NewsClick was one of the last bastions of critical reporting on the government’s policies.

— Mohammad Ali (@hindureporter) February 9, 2021

Readers, activists, and civil society members sent messages of solidarity with the journalists.

Modi & Shah continue to muzzle independent small media, that unlike Big Modia, insists on reporting on the Andolans – people’s movements – of our country. ED raid is on now at the @newsclickin office & the home of its owner Prabir Purkayastha and editor Pranjal. Shame!

— Kavita Krishnan (@kavita_krishnan) February 9, 2021

The office of news portal #Newsclick in Delhi raided, along with residences of founder Editor-in-Chief Prabir Purkayastha and Editor Pranjal.

The attack on media houses which are speaking up on recent issues, continues !

— Aishe (ঐশী) (@aishe_ghosh) February 9, 2021

The Delhi Union of Journalists (DUJ) also issued a statement condemning the ED raids on the office of online portal Newsclick and the homes of its owner editor Prabir Purkayastha, editor Pranjal and human resources head Amit Chakravarty. According to the DUJ statement signed by office bearers, senior journalists S.K.Pande Sujata Madhok, “Newsclick has been providing a platform to leading investigative journalists like Paranjoy Guha Thakurta and bold video journalist Abhisar Sharma, P.Sainath – among others. It has also been reporting extensively on the farmers’ agitation for the past two months. It has established itself as a different voice with news and analysis of national and international affairs.”

The DUJ stated that it viewed the raids as a “serious attack on the online media and the freedom of the  press. Coming in the wake of the filing of sedition charges against several senior journalists last week and government moves to curb free speech on Twitter and YouTube, the raids are ominous.” It added that the “ aim is clearly to intimidate and browbeat  independent and critical voices that disagree with the government on contemporary issues.

The raid also brings back memories of how yet another portal The Quint had been targeted in the past. IT officials had raided Quint’s offices and the home of its founder Raghav Bahl in October 2018 purportedly in connection with a “tax evasion” case. An Enforcement Case Information Report (ECIR) was filed in June 2019 under the Prevention of Money Laundering Act (PMLA) for the alleged non-disclosure of GBP 2.38 lakhs that was allegedly used to purchase a property in London. Bahl maintained that he had not defaulted on either his taxes or his debts and was just being harassed.

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