New Delhi: A Supreme Court bench led by Justice Bela M. Trivedi recently diluted the observations of another bench that the Enforcement Directorate (ED) should inform the accused of the grounds of arrest in writing at the time of arrest, saying instead that orally doing so is sufficient – provided written grounds are given within 24 hours.
According to LiveLaw, the top court said on December 15 that the judgment in Pankaj Bansal vs Union of India, which held that the ED must furnish the grounds of arrest in writing at the time of arrest, does not apply retrospectively.
Therefore, the bench of Justices Trivedi and Satish Chandra Sharma held that arrests that were made without furnishing grounds of arrest before October 3, 2023 cannot be illegal. The bench added that the accused needs to be furnished with the written grounds for arrest within 24 hours of arrest, but must be orally informed about them at the time of arrest.
Section 19 of the Prevention of Money Laundering Act (PMLA) states that the accused must be informed of the grounds of arrest “as soon as may be”, which the bench said should be construed “as early as possible without avoidable delay” or “within reasonably convenient” or “reasonably requisite” period of time, according to LiveLaw. The judgment, written by Justice Trivedi, added:
“Since by way of safeguard a duty is cast upon the concerned officer to forward a copy of the order along with the material in his possession to the Adjudicating Authority immediately after the arrest of the person, and to take the person arrested to the concerned court within 24 hours of the arrest, in our opinion, the reasonably convenient or reasonably requisite time to inform the arrestee about the grounds of his arrest would be twenty-four hours of the arrest.”
This would be sufficient compliance “of not only Section 19 of PMLA but also of Article 22(1) of the Constitution of India”, the order says.
According to LiveLaw, the added that the three-judge bench judgment in Vijay Madanlal Chaudhary vs Union of India (2022) “holds the field” in relation to the powers of the ED. Since that verdict analysed Section 19 and held that it to be compliant with the mandate of Article 21 of the constitution, “observations made by benches on Section 19 of lesser strength cannot be binding”.
The Vijay Madanlal Choudhary vs Union of India, delivered by a bench comprising Justices A.M. Khanwilkar, Dinesh Maheshwari and C.T. Ravikumar had upheld, among other things, the ED’s power to arrest in money laundering cases and contested provisions of the PMLA.
The division bench in Pankaj Bansal, meanwhile, had observed that Vijay Madanlal did not deal with the aspect of providing the grounds of arrest in writing.
The bench’s refusal to accept that Pankaj Bansal is retrospective is significant given that various high courts have taken different views on this issue, according to LiveLaw. The Punjab and Haryana high court held it to be retrospective while the Bombay high court did not.
After making these observations, the top court dismissed the appeal filed by Supertech chairman Ram Kishor Arora challenging the Delhi high court’s order affirming his arrest by the ED in a money laundering case.
Kapoor was arrested on June 27 by the ED and said he was not informed or served the grounds of his arrest.