ED Should Act Uniformly, Apply One Rule For All; Data On Cases Raises Number Of Questions: Supreme Court In Kejriwal Order

In the judgment granting interim bail to Delhi Chief Minister Arvind Kejriwal, the Supreme Court underscored the need for the Enforcement Directorate to have a uniform policy on when a person should be arrested under the Prevention of Money Laundering Act (PMLA).

A bench comprising Justices Sanjiv Khanna and Dipankar Datta, while deciding Kejriwal's petition challenging his arrest by the ED in connection with the liquor policy case, referred to the official data available on the ED's website regarding its cases.

The bench noted that as of January 31, 2023 (the last date on which the site was updated), 5,906 Enforcement Case Information Reports(ECIRs) have been registered. However, the search was conducted in 531 ECIRs by issue of 4,954 search warrants. The total number of ECIRs recorded against ex-MPs, MLAs and MLCs was 176. The number of persons arrested is 513. Whereas the number of prosecution complaints filed is 1,142.

"The data raises a number of questions, including the question whether the DoE has formulated a policy, when they should arrest a person involved in offences committed under the PML Act," the bench observed.

The judgment authored by Justice Khanna added :

"We are conscious that the principle of parity or equality enshrined under Article 14 of the Constitution cannot be invoked for repeating or multiplying irregularity or illegality. If any advantage or benefit has been wrongly given, another person cannot claim the same advantage as a matter of right on account of the error or mistake. However, this principle may not apply where two or more courses are available to the authorities. The doctrine of need and necessity to arrest possibly accepts the said principle. Section 45 gives primacy to the opinion of the DoE when it comes to grant of bail. DoE should act uniformly, consistent in conduct, confirming one rule for all."

The bench pondered on whether the need or necessity of arrest should be read as a condition in Section 19 of the Prevention of Money Laundering Act, which gives ED officers the power to arrest. The bench in this regard mentioned the development of the Constitutional doctrine of proportionality.

Since the constitutional validity of Section 19 PMLA was upheld by a three-judge bench in the decision Vijay Madanlal Choudhary v. Union of India, the bench chose to refer the issue regarding the necessity of arrest to a larger bench.

The following are the questions framed for reference :

(a) Whether the “need and necessity to arrest” is a separate ground to challenge the order of arrest passed in terms of Section 19(1) of the PML Act?

(b) Whether the “need and necessity to arrest” refers to the satisfaction of formal parameters to arrest and take a person into custody, or it relates to other personal grounds and reasons regarding necessity to arrest a person in the facts and circumstances of the said case?

(c) If questions (a) and (b) are answered in the affirmative, what are the parameters and facts that are to be taken into consideration by the court while examining the question of “need and necessity to arrest?

Other detailed reports on the judgment can be read here.