The Justice Bela M. Tridevi-led Bench held that written communication of grounds of arrest could be furnished as soon as may be, i.e., as early as possible and within the reasonably convenient and requisite time of twenty-four hours of the person’s arrest.
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IN a ruling that may have a catastrophic effect on individual liberty, a two-judge Bench of the Supreme Court comprising Justices Bela M. Tridevi and Satish Chandra Sharma has held that if a person arrested by the Directorate of Enforcement (ED) is informed or made aware orally about the grounds of arrest at the time of his arrest, it would amount to sufficient compliance with Section 19 of the Prevention of Money Laundering Act (PMLA), 2002 and Article 22(1) of the Constitution.
The Bench further held that the written communication of grounds of arrest could be furnished as soon as may be, i.e., as early as possible and within the reasonably convenient and requisite time of twenty-four hours of the person’s arrest.
The Bench relied upon a decision of a three-judge Bench of the Supreme Court in Vijay Mandanlal Choudhary versus Union of India to aver that it was categorically held that so long as the person has been informed about the grounds of his arrest, it is sufficient compliance with the mandate of Article 22(1) of the Constitution.
Section 19 of the PMLA prescribes how the arrest of a person involved in money laundering can be affected.
It states that if ED officials have, based on the material in their possession, a reason to believe (the reason for such belief to be recorded in writing) that any person has been guilty of an offence punishable under the PMLA, they may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest.
In addition, the arresting authority shall, immediately after the arrest of such person, forward a copy of the Order along with the material in his possession, referred to in sub-section (1) to the adjudicating authority in a sealed envelope, in the manner prescribed and such adjudicating authority shall keep such Order and material for such period, as may be prescribed.
The Section also prescribes that every person arrested shall, within twenty-four hours, be taken to court.
Article 22(1) provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
The two-judge Bench led by Justice Trivedi observed that a three-judge Bench in Vijay Madanlal Choudhary had already held that Section 19(1) of the PMLA has a reasonable nexus with the purposes and objects sought to be achieved by the PMLA and that the said provision is also compliant with the mandate of Article 22(1).
Any observation, the Justice Trivedi-led Bench said, made or any finding recorded by the division Bench of a lesser number of judges contrary to the said ratio laid down in Vijay Madanlal Choudhary is not valid. The Justice Trivedi-led Bench thus declared that Vijay Madanlal Choudhary held the field as of date.
The observations made by the Justice Trivedi-led Bench seem to conflict with a recent decision of the co-ordinate Bench in Pankaj Banal versus Union of India, on October 3, holding that the ED was required to furnish in writing the grounds of arrest to the accused without exception.
In the Pankaj Bansal case, a Bench comprising Justices A.S. Bopanna and Sanjay Kumar held, “To give true meaning and purpose to the constitutional and statutory mandate of Section 19(1) of the Act of 2002 of informing the arrested person of the grounds of arrest, we hold that it would be necessary, henceforth, that a copy of such written grounds of arrest is furnished to the arrested person as a matter of course and without exception.”
Senior advocate Abhishek Manu Singvi, for the petitioner, argued before the Justice Trivedi-led Bench that the judgment in the Pankaj Bansal case should be given retrospective effect.
The Justice Trivedi-led Bench rejected the contention and held that the very use of the word “henceforth” implied that the said requirement of furnishing grounds of arrest in writing to the arrested person as soon as possible after his arrest was not mandatory or obligatory till the date of the said judgment.
“The submission of the learned senior counsel Mr Singhvi for the appellant that the said judgment was required to be given effect retrospectively cannot be accepted when the judgment itself states that it would be necessary ‘henceforth’ that a copy of such written grounds of arrest is furnished to the arrested person as a matter of course and without exception,” the Justice Trivedi-led Bench held.
The Bench added that non-furnishing grounds of arrest in writing till the date of pronouncement of judgment in the Pankaj Bansal case could neither be held to be illegal nor could the action of the concerned officer not furnishing the same in writing be faulted with.
The Justice Trivedi-led Bench was ruling on a petition filed by one Ram Kishor Arora against a Delhi High Court Order whereby his petition seeking to declare his arrest on June 27, 2023, by the ED as illegal and violative of the fundamental rights guaranteed to the appellant under Articles 14, 20 and 21 of the Constitution of India, was dismissed.
Arora is the founder of M/s Supertech Limited, a real estate company which, along with its group companies, had undertaken various projects in Delhi National Capital Region and at other places in Uttar Pradesh during the period 1988–2015.
Due to various reasons, 26 first information reports came to be registered against the Arora in various jurisdictions. On September 9, 2021, the ED registered an enforcement case information report against M/s Supertech Ltd and others and started an investigation under the PMLA.
Dismissing the petition, the Justice Trivedi-led Bench held that it was not disputed that Arora was handed over the document containing the grounds of arrest when he was arrested, and he also put his signature below the said grounds of arrest, after making an endorsement that, “I have been informed and have also read the above-mentioned grounds of arrest.”
Arora, in a rejoinder, did not dispute this fact.
“Since the appellant was indisputably informed about the grounds of arrest and he having also put his signature and the endorsement on the said document of having been informed, we hold that there was due compliance of the provisions contained in Section 19 of the PMLA and his arrest could neither be said to be violative of the said provision nor of Article 22(1) of the Constitution of India,” the Bench held.
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