New Delhi: Saying that the Enforcement Directorate (ED) should transparent and above board in functioning, the Supreme Court on Tuesday, October 3, held that the agency should furnish the grounds of arrest to the accused in writing.
“We hold that it would be necessary, henceforth, that a copy of written grounds of arrest is furnished to the arrested person as a matter of course and without exception,” a bench of Justices A.S. Bopanna and Sanjay Kumar said, according to LiveLaw. The top court also set aside the arrest of real estate group M3M’s directors Pankaj Bansal and Basant Bansal in a money laundering case.
The judges said the ED’s conduct “reeks of arbitrariness” and directed the immediate release of both the accused.
The court slammed the agency for its approach in the instant case to not furnish the grounds of arrest to the accused in written form and instead reading them out. This, the court said according to LiveLaw, does not fulfil the mandate of Article 22(1) of the constitution and Section 19(1) of the Prevention of Money Laundering Act (PMLA).
The bench observed:
“This chronology of events speaks volumes and reflects rather poorly, if not negatively, on the ED’s style of functioning.”
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According to LiveLaw, the bench said the ED “has to be transparent, above board and conform to pristine standards of fair play in action… and must be seen to be acting with utmost probity” and not be expected to be vindictive. The judges said that the mere passing of an order of remand is not sufficient grounds to valide an arrest.
The judgment says:
“Being a premier investigating agency charged with the onerous responsibility of curbing debilitating economic offence of money laundering in our country, every action of the ED in the course of such exercise is expected to be transparent, above board and conforming to the pristine standards of fair play in action. The ED mantled with far-reaching powers under the stringent Act of 2002, is not expected to be vindictive in its conduct and must be seen to be acting with utmost probity and with the highest degree of dispassion and fairness.”
Under the Narendra Modi government, the ED has been granted extraordinary powers through amendments to the PMLA, which crticis say allows the agency to be misused to target the BJP’s political opponents. Unlike any other investigative agency, the ED does not need to make a disclosure to a person to inform them whether they consider them a suspect or a witness. There is also no protection against a self-incriminating confession.
There ED also does not have magisterial oversight and the agency does not have to provide a copy of the Enforcement Case Information Report (ECIR), the equivalent of an FIR, to the accused person.
Earlier this year, 14 opposition parties filed a petition against alleged misues of central agencies in the Supreme Court. They said since 2014, there has been an exponential rise in the number of cases registered by the ED – and most of them against critics and opponents of the Modi regime. But the conviction rate under the PMLA is abysmally low, the petition argued, adding that “only 23 convictions under the PMLA have been secured”. The top court turned the petition down.
‘Retaliatory’
The top court was critical of the ED’s functioning in the Bansals’ case, saying the agency recorded a second ECIR immediately after the duo secured anticipatory bail in the first ECIR.
“The clandestine conduct of the ED in proceeding against the appellants (Bansals), by recording the second ECIR immediately after they secured interim protection in relation to the first ECIR, does not commend acceptance as it reeks of arbitrary exercise of power,” the court said.
“Its prompt retaliatory move, upon grant of interim protection to the appellants, by recording the second ECIR and acting upon it, all within the span of a day, so as to arrest the appellants, speaks for itself and we need elaborate no more on that aspect,” the judgment says.
Mere non-cooperation should not lead to arrest
The judges said that the failure of the appellants to respond to the questions put to them by the ED would not be sufficient in itself for the investigating officer to conclude that they are liable to be arrested under Section 19 of the PMLA. That provision “specifically requires him to find reason to believe that they were guilty of an offence under the Act of 2002”, the judges said.
“Mere non-cooperation of a witness in response to the summons issued under Section 50 of the Act of 2002 would not be enough to render him/her liable to be arrested under Section 19. As per its replies, it is the claim of the ED that Pankaj Bansal was evasive in providing relevant information. It was however not brought out as to why Pankaj Bansal’s replies were categorized as ‘evasive’ and that record is not placed before us for verification. In any event, it is not open to the ED to expect an admission of guilt from the person summoned for interrogation and assert that anything short of such admission would be an ‘evasive reply’,” the judgment says.
The court held that merely because an accused did not confess, it cannot be said that he was not co-operating with the investigation.
Note: This article was originally published at 10:18 pm on October 3, 2023 and republished at 4 pm on October 4, 2023.