1) Supreme Court: PMLA Accused Need Not Fulfill S.45 Conditions When Furnishing Bond After Appearing Before Trial Court As Per Summons
In a notable judgment, the Supreme Court held that when an accused in a case under the Prevention of Money Laundering Act, 2002 (PMLA), who appears before the Special Court pursuant to a summons issued to him, it cannot be considered that he is in custody. Therefore, such an accused is not required to apply for bail under Section 45 of the PMLA.
The Special Court can however ask such an accused to furnish bonds to secure presence in terms of Section 88 of the Code of Criminal Procedure. To accept such a bond, it is not necessary that the stringent twin conditions for bail under Section 45 of the PMLA must be satisfied, clarified the Supreme Court.
Tarsem Lal v. Directorate of Enforcement Jalandhar Zonal Office, Special Leave to Appeal (Crl.) No(s). 121/2024 (and connected matters)
2) Supreme court: ED Cannot Arrest Accused After Special Court Has Taken Cognizance Of PMLA Complaint
After cognizance is taken of the offence punishable under Section 4 of the PMLA based on a complaint under Section 44, the ED and its officers are powerless to exercise powers under Section 19 to arrest the person shown as accused in the complaint. If the ED wants custody of the accused who appears after service of summons for conducting further investigation of the same offence, ED will have to seek custody of the accused by applying to the Special Court. After hearing the accused, the Special Court must pass an order on the application after recording brief reasons. While hearing the application, the Court may permit custody only if it is satisfied that custodial interrogation is required even though the accused was never arrested under Section 19"
Tarsem Lal v. Directorate of Enforcement Jalandhar Zonal Office, Special Leave to Appeal (Crl.) No(s). 121/2024 (and connected matters).
3) Supreme Court: Directorate of Enforcement (ED) must furnish the reasons of arrest to the accused in writing.
In a landmark judgment in the case Pankaj Bansal v. Union of India, the Supreme Court has held that the Directorate of Enforcement (ED) must furnish the reasons of arrest to the accused in writing.
While holding so, the bench comprising Justices AS Bopanna and PV Sanjay Kumar, noted that Section 19 of the Prevention of Money Laundering Act, that gives the power to officers of ED to arrest any person guilty of a money laundering offence, uses the expression that the accused shall be 'informed of the grounds of such arrest'.
Accused must know grounds of arrest to seek bail
The bench further noted that as per Section 19 of the PMLA, officers of the ED can arrest a person if they have "reasons to believe" that the accused is guilty of offences under the PMLA. For getting bail under Section 45 of the PMLA, the accused must establish that there are no reasonable grounds to believe that he/she is guilty.
"To meet this requirement, it would be essential for the arrested person to be aware of the grounds on which the authorized officer arrested him/her under Section 19 and the basis for the officer's 'reason to believe' that he/she is guilty of an offence punishable under the Act of 2002. It is only if the arrested person has knowledge of these facts that he/she would be in a position to plead and prove before the Special Court that there are grounds to believe that he/she is not guilty of such offence, so as to avail the relief of bail. Therefore, communication of the grounds of arrest, as mandated by Article 22(1) of the Constitution and Section 19 of the Act of 2002, is meant to serve this higher purpose and must be given due importance".
Section 19 mandates the ED officer to record the reasons in writing
According to Section 19, the authorized officer has to record in writing the reasons for forming the belief that the person proposed to be arrested is guilty of an offence punishable under the Act of 2002. Section 19(2) requires the authorized officer to forward a copy of the arrest order along with the material in his possession, referred to in Section 19(1), to the Adjudicating Authority in a sealed envelope.
Why grounds of arrest must be furnished to the accused in writing?
"The very purpose of this constitutional and statutory protection would be rendered nugatory by permitting the authorities concerned to merely read out or permit reading of the grounds of arrest, irrespective of their length and detail, and claim due compliance with the constitutional requirement under Article 22(1) and the statutory mandate under Section 19(1) of the Act of 2002."
Pankaj Bansal v. Union of India SLP(Crl) No. 9220-9221/2023, Basant Bansal v. Union of India SLP(Crl) No. 9275-9276/2023
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