Supreme Court holds that ED should provide written copy of the grounds of arrest

The Supreme Court has held that the Enforcement Directorate (ED) should provide a person a written copy of the grounds of his or her arrest.

A Bench of Justices and A.S. Bopanna and Sanjay Kumar noted that Section 19(1) of the Prevention of Money Laundering Act (PMLA) of 2002, which dealt with the procedure for arrest, had been ambiguous about this aspect, saying only that the ED need to “inform” the arrested person about the grounds of arrest.

The ambiguity had led to the ED following different procedures in different parts of the country. In some places, the ED officers shared a written copy of the grounds of arrest while in others they would orally read them out to the accused being placed under arrest.

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Settling the law, Justice Kumar, who authored the judgment for the Bench, held that the ED should furnish the grounds of arrest to the accused in a written form “as a matter of course and without exception”.

A mere oral communication of the grounds of arrest would boil down to the word of the arrested person against the word of the ED officer as to whether or not there was due and proper compliance in this regard. Besides, the written proof of the grounds of arrest would help the accused seek proper legal counsel and present a case for bail in court. The ED could also redact sensitive portions from the written copy of the grounds of arrest supplied to the accused in order to protect the sanctity of the investigation.

The top court noted that an order of remand by a trial court without properly verifying whether the procedure for arrest was followed or not by the ED would amount to “failure of discharge of duty”.

“The court remanding the person arrested by the ED has a duty to verify and ensure that the conditions in Section 19 are duly satisfied and that the arrest is valid and lawful. In the event the court fails to discharge this duty in right earnest and with the proper perspective, the order of remand would have to fail,” the Supreme Court held.

A remand order should not be used to validate an unlawful arrest under PMLA, the court noted.