Why ED Must Furnish Grounds Of Arrest To Accused In Writing? Supreme Court Explains

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'. The Section did not specify how the grounds of arrest should be informed. This aspect was not dealt with in the recent Vijay Madanlal Choudhary and Senthil Balaji cases.

The bench also noted that in Vijay Madanlal Choudhary case, it was held that the non-supply of the ECIR(counter-part of FIR in money laundering cases) in a given case cannot be found fault with, as the ECIR may contain details of the material in the ED's possession and revealing the same may have a deleterious impact on the final outcome of the investigation or inquiry. At the same time, it was also held that so long as the person is 'informed' of the grounds of his/her arrest, that would be sufficient compliance with the mandate of Article 22(1) of the Constitution.

So, the issue in the present case was regarding the mode of informing the grounds of arrest - whether it should be oral or written.

Mode of conveying information must serve the purpose

The judgment authored by Justice Sanjay Kumar referred to Article 22(1) of the Constitution which 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.

"This being the fundamental right guaranteed to the arrested person, the mode of conveying information of the grounds of arrest must necessarily be meaningful so as to serve the intended purpose," the judgment stated.

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.

In the light of these provisions, the Court said :

"Though it is not necessary for the arrested person to be supplied with all the material that is forwarded to the Adjudicating Authority under Section 19(2), he/she has a constitutional and statutory right to be 'informed' of the grounds of arrest, which are compulsorily recorded in writing by the authorized officer in keeping with the mandate of Section 19(1) of the Act of 2002"

Court expresses surprise at ED not following a uniform practice

The Court noted with surprise that the ED is not following any consistent and uniform practice of informing the grounds of the arrest in writing to the accused.

"Surprisingly, no consistent and uniform practice seems to be followed by the ED in this regard, as written copies of the grounds of arrest are furnished to arrested persons in certain parts of the country but in other areas, that practice is not followed and the grounds of arrest are either read out to them or allowed to be read by them"

Why grounds of arrest must be furnished to the accused in writing?

The Court primarily cited two reasons for holding that the grounds of arrest must be informed to the accused in writing.

"Firstly, in the event such grounds of arrest are orally read out to the arrested person or read by such person with nothing further and this fact is disputed in a given case, it may boil down to the word of the arrested person against the word of the authorized officer as to whether or not there is due and proper compliance in this regard."

The Court said that precarious situations can easily be avoided simply by furnishing the written grounds of arrest, as recorded by the authorized officer in terms of Section 19(1) of the Act of 2002, to the arrested person under due acknowledgment, instead of leaving it to the debatable ipse dixit of the authorized officer

"The second reason as to why this would be the proper course to adopt is the constitutional objective underlying such information being given to the arrested person. Conveyance of this information is not only to apprise the arrested person of why he/she is being arrested but also to enable such person to seek legal counsel and, thereafter, present a case before the Court under Section 45 to seek release on bail, if he/she so chooses." 

"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."

Grounds of arrests not sensitive information ordinarily

The Court opined that  the grounds of arrest recorded by the authorized officer, in terms of Section 19(1) of the Act of 2002, would be personal to the person who is arrested and there should, ordinarily, be no risk.

In the event any such sensitive material finds mention in such grounds of arrest recorded by the authorized officer, it would always be open to him to redact such sensitive portions in the document and furnish the edited copy of the grounds of arrest to the arrested person, so as to safeguard the sanctity of the investigation

"To give true meaning and purpose to the constitutional and the 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," the Court declared.