While upholding the legality of an arrest made under section 19 of the Prevention of Money Laundering Act, 2002 (PMLA), Justices Vipin Sanghi and T S Teja observed that the arrest cannot be termed as unlawful since the grounds were communicated to the accused.
A search was conducted by the Enforce Department in the premises of the petitioner in relation to a case involving alleged violation of Foreign Exchange Management Act (FEMA). Thereafter, proceedings under Prevention of Money Laundering Act, 2002 was also been initiated against him. Later, the petitioner was appeared before the ED on 25.08.2017 as required by the department. He claims that after having been detained for the whole day, he was subsequently arrested on the same day under Section 19 of the PMLA.
On 26.08.2017, when the petitioner was produced before the learned Special Judge, CBI, the department sought his remand without giving him either a copy of the ECIR, or the grounds of arrest, or even the remand application. The remand was later granted.
Before the High court, the petitioner urged that the arrest amount to unlawful since it had violated Article 22(1) of the constitution of India. Article 22(1) obliges the arresting officer to inform the person arrested and detained in custody, as soon as may be, of the grounds for such arrest.
The bench found no infirmity in the orders passed by a competent Court with due application of mind. It was held that there was sufficient compliance of article 22(1) of Constitution of India, as petitioner stood informed of grounds of his arrest when he was permitted to read same and was also informed by remand application under section 167 Cr PC read with section 65 of PMLA moved on 26-8-2017.
Rejecting the contentions of the petitioner that the arrest of the petitioner under Section 19(1) of the PMLA itself was illegal, the bench held that the grounds of arrest were duly informed to the petitioner at the time of his arrest, as well as soon thereafter i.e. on the following day, in the form of the remand application moved before the learned Special Judge.
According to the division bench, Section 19(1) does not oblige the Competent Authority to inform/serve the order of arrest, or the grounds for such arrest to the arrestee simultaneously with his arrest.
It was observed that “neither section 19(1) of PMLA nor the definition of the expression ‘order’ as given in sub-clause (h) of rule 2, of the PMLA Arrest Rules provide that the grounds for such arrest are mandatorily required to be provided in writing to the person arrested at the time of his arrest. Oral communication of the grounds of arrest is not only a substantial, but proper compliance of the provision. Section 19(1) also does not state that the grounds of arrest are to be informed to the person arrested, immediately. The use of the word in section 19(1) ‘as soon as may be’ makes it clear that grounds of arrest may not be supplied at the time of arrest itself or immediately on arrest, but as soon as may be.”
“Pertinently, section 19 of the PMLA also uses the expression “informed of the grounds of such arrest” – as used in Article 22(1), and does not use the expression “communicate the grounds of such arrest”. The Legislature has consciously used the expression “informed”, which is also used in Article 22(1), since section 19 deals with the power of arrest. The Scheme of section 19 engrafts an additional safeguard against misuse of the power of arrest by the Competent Authority, by stipulating in sub-section (2) thereof, that the Competent Authority shall “immediately after arrest of such person under sub-Section (1) … … …” forward a copy of the order of arrest, along with the material in his possession – on the basis of which the reasonable belief is formed that the person is guilty of an offence punishable under the Act, in a sealed envelope to the Adjudicating Authority, which the Adjudicating Authority is obliged to keep under his custody,” the bench said.
Subscribe Taxscan Premium to view the Judgment
