In a landmark judgement today, the Supreme Court held that the central probe agency Enforcement Directorate (ED) cannot arrest an accused under Section 19 of the Prevention of Money Laundering Act (PMLA) after a special court has taken cognisance of the complaint of money laundering.
The order came from a division bench comprising justices Abhay S Oka and Ujjal Bhuyan. The apex court judgment was pronounced on a question of whether an accused in a money laundering case has to meet the stringent twin test for bail even in cases where the special court takes cognisance of the offence.
About the Section 19 of PMLA
Section 19 of the PMLA allows ED officers to arrest an individual "on the basis of material in possession (and) reason to believe (to be recorded in writing) that the person is guilty..."
Crucially, the agency must inform the individual, "as soon as may be" of the grounds for the arrest.
PMLA Section 19: All about the verdict
The apex court on Thursday ruled when an accused appears before a court in pursuance of a summons, the agency will have to apply to the court concerned to get his custody.
"If the accused appears before the special court by summons (issued by court), it cannot be treated that he is in custody," it said.
"Accused who appeared before the court pursuant to the summons not required to apply for bail, and thus twin conditions of Section 45 of PMLA not applicable," the bench said in its judgment.
The twin conditions of Section 45 of PMLA state that when an accused in a money laundering case applies for bail, the court has to first allow the public prosecutor to be heard and only when it is satisfied that the accused is not guilty and unlikely to commit a similar offense when released, can bail be granted.
"If the ED wants custody of (an) accused after the person (answers a special court's) summons, it needs to apply to the special court," a bench of Justice Abhay S Oka and Justice Ujjal Bhayan said, adding, custody could only be granted if that court believes custodial interrogation is required.
Under Section 70 of the Code of Criminal Procedure (CrPC), an arrest warrant can only be issued if the accused fails to answer the summons, and, in the first instance, this has to be a bailable warrant.
In a significant ruling, one seen as emphasising protection offered from arbitrary arrest by the central agency, the top court also said accused individuals not arrested before answering a court summons - need to satisfy the stringent 'twin test' for bail as laid down by the PMLA.
