The Supreme Court, in Pankaj Bansal v Union of India1, held that it is obligatory for the Enforcement Directorate to provide the grounds of arrest in writing to a person arrested under the Prevention of Money Laundering Act.
The Court further in Ram Kishor Arora v. Directorate of Enforcement (ED)2 clarified that while the written grounds need not be furnished immediately at the time of arrest, they must be provided within 24 hours.
Although these judgments are well-intentioned, concerns have been raised that allowing the ED to furnish the grounds of arrest within 24 hours could lead to situations where an individual is arrested at night and later produced before the special court for remand. In such cases, the court may grant remand without knowing the grounds of arrest, as the ED would not yet be required to furnish them due to the 24-hour time period.
This entire exercise of remand may be rendered futile, as neither the court nor the arrestee would be in a position to know the grounds of arrest.
In this backdrop, let us examine what the Supreme Court laid down in Pankaj Bansal and Ram Kishor Arora.
Grounds of Arrest In Writing- Pankaj Bansal
In Pankaj Bansal, the petitioner challenged his arrest on the ground that he was not informed of the reasons for his arrest, as mandated by Section 19 of the PMLA. The Court, while referring to Section 19 of the PMLA and its judgments in Vijay Madanlal Choudhary v Union of India3 and V. Senthil Balaji v.The State represented by Deputy Director4, held that the accused must be informed of the grounds of arrest. The Court also relied on Article 22(1) of the Indian Constitution, which mandates that a person being arrested must be informed of the grounds for such arrest.
However, Section 19 does not specify the manner in which the grounds of arrest must be conveyed. The Court emphasized that the communication must be meaningful and serve its intended purpose. Based on this, it was held that the arrested person must be informed of the grounds of arrest in writing as a matter of course and without exception.
Grounds of Arrest Can Be Provided Within 24 Hours- Ram Kishore Arora
While Pankaj Bansal established that the grounds of arrest must be provided in writing, it did not clarify the timeframe for doing so. This issue arose before the Supreme Court in Ram Kishore Arora, where the arrest was challenged on the ground that the reasons for arrest had not been provided at the time of arrest. The Court held that although Section 19(1) of the PMLA mandates the provision of grounds for arrest, it uses the phrase “as soon as may be,” which had not been interpreted in Pankaj Bansal, Vijay Madanlal, or V. Senthil Balaji.
The Court observed that this phrase does not require the grounds of arrest to be provided immediately at the time of arrest but mandates that they be furnished as soon as possible, without avoidable delay. Ultimately, it was held that the grounds of arrest can be provided within 24 hours, which is also a time period within which an arrested person has to be produced before the Special Court.
Additionally, the Court ruled that the principle established in Pankaj Bansal—that the grounds of arrest must be provided in writing—shall apply prospectively, as indicated by the Court’s use of the term henceforth.
The position that emerges from the above discussion is that the Enforcement Directorate (ED) must inform the arrested person of the grounds of arrest in writing. However, these grounds need not be provided immediately and can be conveyed within 24 hours of the arrest.
A conjoint reading of the above two judgments suggests that the protection granted to the arrested person in Pankaj Bansal may lose its significance if the ED is allowed a 24-hour window to provide the grounds of arrest. By the time these grounds are furnished, the ED would have already secured the accused’s remand, which could be detrimental to the arrested person.
Providing the grounds of arrest at the time of arrest is particularly crucial because the Enforcement Case Information Report (ECIR) cannot be claimed as a matter of right under the PMLA. This creates a possibility that the accused may remain unaware of the case against them while being remanded to custody, which is inherently unfair. In this context, furnishing written grounds of arrest at the earliest opportunity would be beneficial, as it would at least allow the accused to understand the case set up against them by the ED.
Conclusion
It can be concluded that while arresting an accused under the PMLA, the ED must furnish the grounds of arrest in writing. The court further clarified that these grounds need not be provided immediately but can be furnished within 24 hours of the arrest.
The implications of these judgments remain to be seen. Given that PMLA proceedings often proceed without the accused knowing the case against them, the court’s reasoning—allowing a 24-hour delay in furnishing the grounds of arrest—risks undermining the minimal safeguards available to the accused. This could weaken the protection afforded by the requirement of providing written grounds of arrest.
1Criminal Appeal Nos. 3051-3052 of 2023
22023 SCC OnLine SC 1682
32022 SCC Online SC 929
4Criminal Appeal Nos. 2284-2285 of 2023
