Page No.# 1/11 GAHC020000642025 2025:GAU-NL:140 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH Case No. : I.A.(Crl.)/4/2025 BHUPESH ARORA S/O GULSHAN KUMAR, RESIDENT OF G-5, 35/36, 3RD FLOOR, SECTOR 11, ROHINI, DELHI-110085 RESIDENTIAL ADDRESS IN DUBAI, 6504 MARINA, ELITE RESIDENCY, DUBAI, UAE. VERSUS DIRECTORATE OF ENFORCEMENT REPRESENTED BY ITS DEPUTY DIRECTOR, DIMAPUR, SUB-ZONAL OFFICE, 5TH FLOOR, MAINAAK TOWER, CHRISTIAN BASTI, G.S. ROAD, GUWAHATI, ASSAM-781005 Advocate for the Petitioner : K MOHAMMED, Advocate for the Respondent : KEDUVI ZHOTSO, Linked Case : CRAPL/1/2025 BHUPESH ARORA S/O GULSHAN KUMAR RESIDENT OF G-5 35/36 3RD FLOOR SECTOR 11 ROHINI Page No.# 2/11 DELHI-110085 RESIDENTIAL ADDRESS IN DUBAI 6504 MARINA ELITE RESIDENCY DUBAI UAE. VERSUS DIRECTORATE OF ENFORCEMENT REPRESENTED BY ITS DEPUTY DIRECTOR DIMAPUR SUB-ZONAL OFFICE 5TH FLOOR MAINAAK TOWER CHRISTIAN BASTI G.S. ROAD GUWAHATI ASSAM-781005 ------------ Advocate for : D DAS SR. ADV. Advocate for : KEDUVI ZHOTSO appearing for DIRECTORATE OF ENFORCEMENT BEFORE HON'BLE MR JUSTICE MRIDUL KUMAR KALITA ::ORDER :: 07.04.2025 1. Heard Mr. D. Das, learned senior counsel assisted by Mr. S. Das, learned counsel for the petitioner. Also heard Mr. Keduvi Zhotso, learned Special Public Prosecutor for the Enforcement Directorate (ED). 2. This interlocutory application has been filed by the applicant, Shri Bhupesh Arora, in connection with Criminal Appeal No. 1/2025, Page No.# 3/11 praying for stay of operation of the impugned order dated 22.01.2025 and subsequent consequential orders passed by the Court of the learned Principal Sessions Judge-Cum-Special Judge, PMLA, Dimapur, Nagaland, in I.A. No. 791/2024, arising out of ML Case No. 01/2024, pending before the Court of the learned Special Judge, PMLA, Dimapur, Nagaland, whereby the applicant has been declared as a Fugitive Economic Offender within the meaning of Section 2(1)(f) of the Fugitive Economic Offenders Act, 2018. 3. The facts relevant for consideration of the instant interlocutory application, in brief, are that:- (i) In pursuant to a complaint under Sections 44 and 45 of the Prevention of Money Laundering Act, 2002, (hereinafter referred to as “PMLA”), and the investigation which ensued thereafter, charge-sheet was laid against the present applicant and 298 other accused persons under Section 4 of the PMLA before the Court of learned Special Judge, PMLA, Dimapur, Nagaland. The said case was registered as Money Laundering Case No. 1/2024. (ii) On 22.03.2024, the learned Special Judge, PMLA, Dimapur, Nagaland, took cognizance of offence of money laundering against all 299 accused persons, including the applicant, and thereafter issued summons to them. (iii) Upon receipt of summons, the applicant, on 24.05.2024, entered his appearance through his engaged counsel. Though, the applicant was allowed to be represented by his Page No.# 4/11 engaged counsel in the said case, however, on 02.07.2024, which was an off-date, the Trial Court heard an application filed by the ED for issuance of non-bailable warrant (which was registered as I.A. No. 230 of 2024) and without hearing the counsel for the present applicant, issued non-bailable warrant of arrest against him. (iv) On 29.08.2024, the applicant filed an application challenging the issuance of non-bailable warrant of arrest against him (which was registered as I.A. No. 531/2024). The ED prayed for filing an objection against the said application and on the prayer of the learned counsel for the applicant, the Court preponed the date of hearing of the said application to 05.09.2024. (v) On 05.09.2024, the Trial Court heard the learned counsel for both the sides in connection with I.A. No. 531/2024 and directed that the I.A. No. 230/2024,in which non-bailable warrant of arrest was issued, is required to be re- heard and accordingly, the Trial Court directed that the non- bailable warrant of arrest already issued against the applicant shall be kept in abeyance till next returnable date i.e., 18.10.2024. The I.A. No. 531/2024 was accordingly disposed of. (vi) On 18.10.2024, the matter could not be heard as the copy of application in I.A. No. 230/2024 was not furnished to the applicant, therefore, the next date was fixed on 12.12.2024 and the interim order passed in I.A. No. 531/2024 Page No.# 5/11 on 05.09.2024 was directed to be continued till next date. However, on 24.10.2024, the ED filed an interlocutory application which was registered as I.A. No. 791/2024 wherein it prayed for declaring the applicant to be a fugitive economic offender under Fugitive Economic Offenders Act, 2018. Thereafter, by order dated 22.01.2025, the Trial Court allowed the I.A. No. 791/2024 and declared the present applicant as a fugitive economic offender. (vii) The applicant has impugned the aforesaid order dated 22.01.2025 by filing an appeal under Section 17 of the Fugitive Economic Offenders Act, 2018 which was registered as Criminal Appeal No. 1/2025. The said appeal is admitted for hearing and next date is fixed on 28.04.2025. (viii) In this Interlocutory Application, the applicant has prayed for stay of the impugned order, dated 22.01.2025, during the pendency of the aforesaid appeal. 4. Mr. D. Das, learned senior counsel for the petitioner has submitted that that the Trial Court while declaring the applicant as afugitive economic offender has failed to take into consideration that though on an off-date i.e., on 02.07.2024, the Trial Court had issued non-bailable warrant of arrest against the present applicant. However, it has been submitted by the learned senior counsel for the petitioner that the said non-bailable warrant of arrest was kept in abeyance by the order dated 05.09.2024 passed in I.A. No. 531/2024 and, therefore, no effective non-bailable warrant of arrest was pending against the present petitioner on 24.10.2024, when Page No.# 6/11 the ED had filed the application for declaring the present applicant as afugitive economic offender. 5. The learned senior counsel has also submitted that the Trial Court had again issued non-bailable warrant of arrest against the applicant by its order dated 13.12.2024 passed in ML Case No. 01/2024. However, by an order dated 21.03.2025 passed in Criminal Revision No. 3/2025, the operation of said order was also stayed. Therefore, he submits that on the date when the impugned order was passed no effective non-bailable warrant of arrest was pending against the present applicant as the operation of the non-bailable warrant of arrest was kept in abeyance by the Trial Court itself. 6. The learned senior counsel for the applicant has also submitted that before declaring the applicant as a fugitive economic offender under Section 4 of the Fugitive Economic Offenders Act, 2018, the notices under Section 10 of the said Act were not issued to the applicant as well as to the other interested persons under Section 10(1) and 10(2) of the said Act. 7. The learned senior counsel for the applicant has also submitted that by order dated 18.10.2024, the personal appearance of the applicant for the day was dispensed with and he was allowed to be represented by his engaged counsel and the next date was fixed for hearing in I.A. No. 230/2024 on 12.12.2024. 8. The learned senior counsel has, therefore, submitted that on the date when the ED filed an application in I.A. No. 791/2024 for declaring the applicant as a fugitive economic offender, no effective Page No.# 7/11 non-bailable warrant of arrest was pending against him and, therefore, prima facie, the applicant has a good case for grant of stay of the impugned order during the pendency of the connected Criminal Appeal No. 1/2025. 9. On the other hand, Mr. Keduvi Zhotso, learned Special Public Prosecutor for the ED has vehemently opposed the grant of interim protection to the applicant during the pendency of the connected criminal appeal. He has submitted that the applicant has not appeared before the Trial Court inspite of repeated issuance of summons to him and as the non-bailable warrant of arrest was issued against him, however, the applicant has left India after siphoning off the laundered money. Hence, the Trial Court, after considering all the aspects have rightly declared him as an fugitive economic offender. 10. The learned Special Public Prosecutor for the ED has also submitted that the present interlocutory application filed in this case is not maintainable as the same has been filed by the wife of the applicant and not by the applicant himself. He has also submitted that as per Section 2(f) of the Fugitive Economic Offenders Act, 2018, Fugitive Economic Offenders means any individual against whom a warrant for arrest in relation to a Scheduled Offence has been issued by any Court in India, who– (i) has left India so as to avoid criminal prosecution; or (ii) being abroad, refuses to return to India to face criminal prosecution; Page No.# 8/11 11. He submits that in the instant case, the Trial Court had already issued warrant against him and keeping the said warrant in abeyance is only a temporary measure which does not make the warrant ineffective permanently, therefore, he submits that there is no embargo in declaring the applicant as a fugitive economic offender under the aforesaid Act. 12. The learned Special Public Prosecutor for the ED has also submitted that as regards the issuance of notice is concerned, by order dated 24.10.2024, the Trial Court while considering the I.A. No. 791/2024 has issued notice to all the respondents/accused named in the said interlocutory application and, hence, there is compliance of Section 10 of the Fugitive Economic Offenders Act, 2018. 13. I have considered the submissions made by the learned counsel for both the sides and have gone through the materials available on record. 14. Before considering the other aspect of the matter, let us deal with the preliminary objection raised by the learned Special Public Prosecutor regarding the maintainability of the instant application on the ground that it has been filed by the wife of the applicant Bhupesh Arora and not by him. 15. On perusal of the cause-title of the instant interlocutory application, it is apparent that this application has been filed by Bhupesh Arora and not by his wife. However, the affidavit which is appended along with the application has been sworn in by Ms. Page No.# 9/11 Sunaina Manchanda Arora, who is the wife of the applicant. 16. Mere fact that the affidavit, in this case, had been sworn by the wife of the applicant would not make the instant application not maintainable. As per Note to Rule 7 of the Chapter-IV of the Gauhati High Court Rules, an affidavit may be by any person having cognizance of facts stated therein. In the case of “Shri Someswar Gogoi –Vs- State of Assam and Ors., reported in “(1998) 1 GLR 440” it has been held that an affidavit may be verified either by the petitioner himself or by anybody else who is fully posted with the facts and circumstances of the case. 17. In the instant case, the wife of the petitioner who has sworn the affidavit has stated that the statement made in the petitions are derived from the records which she believes to be true and correct. Hence, prima facie, it appears that the objection as regards the maintainability of the instant petition raised by the learned Special Public Prosecutor does not have much force, therefore, same is rejected. 18. It also appears that the ED has filed the application under Section 4 read with Section 10 and 12 of the Fugitive Economic Offenders Act, 2018, on the basis of which the I.A. No. 791/2024 was registered on an off-date i.e., on 24.10.2024. In the said application, it was mentioned that non-bailable warrant of arrest has been issued on 2.07.2024 in Special Case No. 1/2024, however, it is silent about the order dated 05.09.2024 passed in I.A. No. 531/2024 by which the non-bailable warrant of arrest was kept in abeyance. Page No.# 10/11 19. There is also no mention in the said application regarding the fact that by the order 05.09.2024 passed in I.A. No. 531/2024 it was directed that the I.A. No. 230/2024, by virtue of which the non- bailable warrant of arrest was issued, would be re-heard. Thus, when the Trial Court has kept the I.A. No. 230/2024 in which the non-bailable warrant of arrest was issued for re-consideration and same is yet to be re-considered and when the non-bailable warrant of arrest issued by the Trial Court by virtue of the order dated 02.07.2024 passed on the basis of an order I.A. No. 230/2024 is kept in abeyance, the non-bailable warrant of arrest so issued cannot be regarded as warrant of arrestwhich is in force and same cannot be executed against the petitioner till the embargo imposed on its execution is lifted by the Trial Court. However, the ED had moved the application for declaring the present petitioner as a fugitive economic offender while such warrant is under suspended animation. 20. It does not require more than a common sense to understand that reference to warrant of arrest in Section 2(f) of the Fugitive Economic Offenders Act, 2018 would mean an effective warrant of arrest which can be executed. It cannot be understood to include even a warrant of arrest which is under suspended animation. If the same is allowed to happen, the order of the Court by which the warrant of arrest was kept in suspended animation would become inefficacious. 21. Moreover, the notice referred to Section 10(1) of the Fugitive Economic Offenders Act, 2018 has to be sent to the individual who Page No.# 11/11 is alleged to be an fugitive economic offender for his appearance at a specified place and time and it is only on failure to appear on the said specified place and time that such an individual may be declared as fugitive economic offender. However, in the instant case, by order dated 24.10.2024, the notice which was issued to the present applicant appears to be notice for filing reply and hearing on the I.A. No. 791/2024 and it was not for his personal appearance at a specified place and time as mandated under Section 10 of the Fugitive Economic Offenders Act, 2018. 22. Thus, for the aforesaid reasons, it appears that the applicant has a good case where there is a probability of getting a favourable order in the connected Criminal Appeal No. 1/2025. Hence, during the pendency of the said criminal appeal, the impugned order dated 22.01.2025 passed in I.A. No. 791/2024 is hereby stayed. 23. This Interlocutory Application is accordingly allowed and disposed of. 24. The Registry of the Principal seat is directed to do the needful to send the records of the instant interlocutory application along with all the connected records with a copy of this order immediately to the Registry of the Permanent Bench of the Gauhati High Court at Kohima. JUDGE Comparing Assistant