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TMI Blog2023 (11) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... the same. There was, therefore, sufficient compliance of the provisions of Section 19 of the PMLA with regard to the authorities having material in their possession giving them reason to believe (recorded in writing) that the petitioner was guilty of an offence punishable under the PMLA and that he was required to be arrested. The question which would, therefore, arise would be as to whether this would be sufficient compliance of the provisions of Section 19 of the PMLA or not. In view of the ratio laid down by the Hon ble Apex Court in the case of PANKAJ BANSAL VERSUS UNION OF INDIA ORS. [ 2023 (10) TMI 175 - SUPREME COURT] , the answer would be in the negative. It has categorically been held in Pankaj Bansal Versus Union of India and others s case that the grounds of arrest would have to be conveyed in writing. The Hon'ble Apex Court noted that the mode of conveying information of the grounds of arrest must necessarily be meaningful so as to serve the intended purpose. Reference was made to Section 45 of the PMLA which enables the arrested person to seek release on bail. It was noticed that Section 45 prescribes twin conditions which are required to be satisfied in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red for the said offence under Prevention of Money Laundering Act, 2002 as proceeds of crime defined under Section 2 (1)(u) thereof are dependent on illegal gain of property as a result of criminal activity relating to such scheduled offence and cannot have any independent existence of its own; (ii) In consonance with the principles laid down by the Hon ble Supreme Court vide order dated 3.10.2023 passed in Criminal Appeal No. 3051-3052 of 2023 in Pankaj Bansal Versus Union of India and others quash and set aside the arrest of the petitioner and consequential Arrest Order dated 8.6.2023 (Annexure P-15) as there has been grave violation of the mandatory postulates interdicting and governing the invocation of powers under Section 19 of Prevention of Money Laundering Act, 2022; (iii) As a sequel and consequence to the prayer supra this Hon ble Court may be pleased to set aside and quash the remand orders dated 9.6.2023 (Annexure P-19), 16.6.2023 (Annexure P-21) 20.6.2023 (Annexure P-23) as well as subsequent remand orders passed by the Court of Special Judge, Panchkula whereby the petitioner has been remanded to Enforcement Directorate custody and/or to judicial custody ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ody which was later on extended by four days. Finally he was committed to judicial custody on 20.06.2023. At present, the petitioner is lodged in Central Jail, Ambala. A supplementary prosecution complaint was, therefore, filed on 04.08.2023 wherein the present petitioner was arraigned alongwith 51 other managerial persons/associates and corporate entitites of IREO Group and M3M Group. The said complaint is at the stage of cognizance. 3. It would be essential to refer here that apart from the first ECIR, another ECIR bearing No.ECIR/GNZO/17/2023 (hereinafter referred to as the Second ECIR ) had been registered by the Enforcement Directorate on 13.06.2023 in which also Basant Bansal, Pankaj Bansal, Roop Bansal and other persons are accused. It would be further essential to notice that the second ECIR arises out of scheduled offences alleged to have been committed under Sections 7, 8, 11 and 13 of the Prevention of Corruption Act, 1988 read with Section 120-B IPC qua which FIR No.0006 dated 17.04.2023 stands registered at the instance of the Anti Corruption Bureau, Panchkula, Haryana. The accused in the said FIR are (i) Sudhir Parmar, (the then Special Judge, CBI and ED, Panchkul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated during the course of arguments on a query raised by this Court) and filed the present petition. Another application filed under Section 167 (2) Cr.P.C. for the grant of default bail is stated to be pending. 10. The present petition has now been filed praying for the reliefs referred to in the opening part of the petition and essentially laying challenge to his arrest on 08.06.2023 and the subsequent remand orders passed by the Vacation Judge/Addl. Sessions Judge, Panchkula. 11. We have heard learned counsel for the parties and have perused the petition, the reply submitted by the respondents as also other documents placed on record during the course of arguments. 12 Learned Senior Counsel representing the petitioner restricted the claim of the petitioner only to prayers No.(ii), (iii) and (iv) and submitted that the first prayer was not being pressed. 12(i) Sh.Abhishek Manu Singhvi, learned Senior counsel representing the petitioner submitted that the present case is covered by the decision dated 03.10.2023 given by the Hon ble Supreme Court in Pankaj Bansal s case (supra). Referring to the provisions of Section 19 of the PMLA, learned Senior counsel submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the provisions of Section 19 of PMLA in terms of the ratio laid down by the Hon'ble Apex Court in Pankaj Bansal's case (supra). Reference was also made to the judgment of the Hon ble Apex Court in the case of Vijay Madan Lal Chaudhary and others versus Union of India and others 2022 (10) Scale 577 and V.Senthil Balaji Versus State represented by Deputy Director and others, 2023 (3) Law Herald (SC) 2088; 2023 SCC Online SC 934 (Criminal Appeals No.2284-2285 of 2023, decided on 07.08.2023). 12(iv) Reference was also made to the judgment of the Hon ble Apex Court in the case of Arnab Manoranjan Goswami versus State of Maharashtra and others (2021) 2 SCC 427 to contend that deprivation of liberty even for a single day is one day too many. It was contended that since the arrest is illegal, the petitioner deserves to be set free forthwith. Though a compilation with other judgments was also supplied, reference was made only to the judgments mentioned in the preceding paragraphs. Learned senior counsel placed reliance upon the judgments of Hon ble Supreme Court in the cases of Union of India Vs. Ashok Kumar Sharma and others (2021) 12 SCC 674; SLP (C) No. 11039 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said documents containing the grounds of arrest. It was contended that under the circumstances, it cannot be said that there was violation of Section 19 of PMLA. 13(ii) Learned counsel referred to the judgments of the Hon ble Supreme Court in Pankaj Bansal Versus Union of India and others (supra) and submitted that the Hon ble Apex Court declared the arrest of Basant Bansal and Pankaj Bansal to be illegal on account of the manner in which they were arrested in the second ECIR after joining them investigation in the first case and not solely on account of the fact that the grounds of arrest had not been supplied to them in writing. 13(iii) Learned counsel submitted that the case of the petitioner would be covered by the ratio laid down by the Hon ble Apex Court in the cases of Vijay Madanlal Choudhary Versus Union of India Ors. and V. Senthil Balaji Versus State represented by Deputy Director and others and since the grounds of arrest had been conveyed to the petitioner and he had signed the documents, the arrest cannot be said to be illegal. Learned counsel repeatedly emphasized that the directions of the Hon ble Apex Court with regard to furnishing of copy of writte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for such belief to be recorded in writing) that any person has been guilty of an offence punishable under this Act, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest. (2) The Director, Deputy Director, Assistant Director or any other officer shall, immediately after arrest of such person under sub-section (1), forward a copy of the order, along with the material in his possession, referred to in that sub-section, to the Adjudicating Authority, in a sealed envelope, in the manner, as may be prescribed and such Adjudicating Authority shall keep such order and material for such period, as may be prescribed. (3) Every person arrested under sub-section (1) shall within twenty-four hours, be taken to a (Special Court or) Judicial Magistrate or a Metropolitan Magistrate, as the case may be, having jurisdiction: Provided that the period of twenty-four hours shall exclude the time necessary for the journey from the place of arrest to the (Special Court or) Magistrate s Court. Section 45 deals with bail and provides as under:- 45. Offences to be cognizable and non-bailable. (1) 1[Notwithstanding anything containe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; (e) issuing commissions for examination of witnesses and documents; and (f) any other matter which may be prescribed. (2) The Director, Additional Director, Joint Director, Deputy Director or Assistant Director shall have power to summon any person whose attendance he considers necessary whether to give evidence or to produce any records during the course of any investigation or proceeding under this Act. (3) All the persons so summoned shall be bound to attend in person or through authorised agents, as such officer may direct, and shall be bound to state the truth upon any subject respecting which they are examined or make statements, and produce such documents as may be required. (4) Every proceeding under sub-sections (2) and (3) shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860). (5) Subject to any rules made in this behalf by the Central Government, any officer referred to in sub-section (2) may impound and retain in his custody for such period, as he thinks fit, any records produced before him in any proceedings under this Act: Provided that an Assistant Direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the same may also hamper the ability to prepare for the trial at a later stage. The constitutionality of Sections 17 and 18 of the PMLA was also challenged. The vires of almost all provisions including proviso of Section 5 (1), Section 8 of the PMLA and other provisions were challenged. 17. On behalf of the Union of India, it was submitted that at that time, around 4700 cases were being investigated by ED which was a small number as compared to the number of cases registered under the Money Laundering Act in other countries. It was also submitted that in the last five years, only 2086 cases had been taken up for investigation under the PMLA out of registration of approximately 33 lacs FIRs relating to predicate offences by the police and other Enforcement Agencies. It was submitted before the Hon ble Apex Court that the validity of the PMLA would have to be judged in the background of international development and obligation of India to prevent money laundering. With regard to Section 19 of the PMLA, it was contended before the Apex Court that there were adequate safeguards under Section 19 of the PMLA which made the provision Constitution compliant. It was submitted that Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his possession, in a sealed cover to the Adjudicating Authority, who in turn is obliged to preserve the same for the prescribed period as per the Rules. This safeguard is to ensure fairness, objectivity and accountability of the authorised officer in forming opinion as recorded in writing regarding the necessity to arrest the person being involved in offence of money-laundering. Not only that, it is also the obligation of the authorised officer to produce the person so arrested before the Special Court or Judicial Magistrate or a Metropolitan Magistrate, as the case may be, within twenty-four hours. This production is also to comply with the requirement of Section 167 of the 1973 Code. There is nothing in Section 19, which is contrary to the requirement of production under Section 167 of the 1973 Code, but being an express statutory requirement under the 2002 Act in terms of Section 19(3), it has to be complied by the authorised officer. Section 19, as amended from time to time, reads thus: 19. Power to arrest. ( 1) If the Director, Deputy Director, Assistant Director or any other officer authorised in this behalf by the Central Government by general or special order, has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to provide for prosecution of person involved in the offence of money-laundering, but mainly intended to prevent money-laundering activity and confiscate the proceeds of crime involved in money-laundering. It also provides for prosecuting the person involved in such activity constituting offence of money-laundering. In other words, this legislation is an amalgam of different facets including setting up of agencies and mechanisms for coordinating measures for combating money-laundering. Chapter III is a provision to effectuate these purposes and objectives by attachment, adjudication and confiscation. The adjudication is done by the Adjudicating Authority to confirm the order of provisional attachment in respect of proceeds of crime involved in money-laundering. For accomplishing that objective, the authorities appointed under Chapter VIII have been authorised to make inquiry into all matters by way of survey, searches and seizures of records and property. These provisions in no way invest power in the Authorities referred to in Chapter VIII of the 2002 Act to maintain law and order or for that matter, purely investigating into a criminal offence. The inquiry preceding filing of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cution of the command of a court of law or of a duly authorised officer . Even, this decision recognises the power of the authorised officer to cause arrest during the inquiry to be conducted under the concerned legislations. While adverting to the safeguards provided under that legislation before effecting such arrest, the Court noted as follows: Safeguards against abuse of power 36. From the above discussion, it is amply clear that power to arrest a person by a Customs Officer is statutory in character and cannot be interfered with. Such power of arrest can be exercised only in those cases where the Customs Officer has reason to believe that a person has been guilty of an offence punishable under Sections 132, 133, 135, 135-A or 136 of the Act. Thus, the power must be exercised on objective facts of commission of an offence enumerated and the Customs Officer has reason to believe that a person sought to be arrested has been guilty of commission of such offence. The power to arrest thus is circumscribed by objective considerations and cannot be exercised on whims, caprice or fancy of the officer. 37. The section also obliges the Customs Officer to inform the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of arrest of a person along with the material to the Adjudicating Authority and the period of its retention. In yet another decision in Ahmed Noormohmed Bhatti, this Court opined that the provision cannot be held to be unreasonable or arbitrary and, therefore, unconstitutional merely because the authority vested with the power may abuse his authority. (Also see Manzoor Ali Khan). 326. Considering the above, we have no hesitation in upholding the validity of Section 19 of the 2002 Act. We reject the grounds pressed into service to declare Section 19 of the 2002 Act as unconstitutional. On the other hand, we hold that such a provision has reasonable nexus with the purposes and objects sought to be achieved by the 2002 Act of prevention of money-laundering and confiscation of proceeds of crime involved in money-laundering, including to prosecute persons involved in the process or activity connected with the proceeds of crime so as to ensure that the proceeds of crime are not dealt with in any manner which may result in frustrating any proceedings relating to confiscation thereof. 18(i) A perusal of the aforesaid shows that the Hon ble Apex Court upheld the validity of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly involved in the commission of offence are not mentioned in the FIR and described as unknown accused. Even, the particulars as unfolded are not fully recorded in the FIR. Despite that, the accused named in any ordinary offence is able to apply for anticipatory bail or regular bail, in which proceeding, the police papers are normally perused by the concerned Court. On the same analogy, the argument of prejudice pressed into service by the petitioners for non-supply of ECIR deserves to be answered against the petitioners. For, the arrested person for offence of money-laundering is contemporaneously informed about the grounds of his arrest; and when produced before the Special Court, it is open to the Special Court to call upon the representative of ED to produce relevant record concerning the case of the accused before him and look into the same for answering the need for his continued detention. Taking any view of the matter, therefore, the argument under consideration does not take the matter any further. 18(iii). While finally deciding the matter, the Hon ble Apex Court summarized its conclusion as under:- 467. In light of the above analysis, we now proceed to summar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r claiming the property in question as untainted property that the offence of Section 3 would be complete, stands rejected. (d) The offence under Section 3 of the 2002 Act is dependent on illegal gain of property as a result of criminal activity relating to a scheduled offence. It is concerning the process or activity connected with such property, which constitutes the offence of money-laundering. The Authorities under the 2002 Act cannot prosecute any person on notional basis or on the assumption that a scheduled offence has been committed, unless it is so registered with the jurisdictional police and/or pending enquiry/trial including by way of criminal complaint before the competent forum. If the person is finally discharged/acquitted of the scheduled offence or the criminal case against him is quashed by the Court of competent jurisdiction, there can be no offence of money-laundering against him or any one claiming such property being the property linked to stated scheduled offence through him. (vi) Section 5 of the 2002 Act is constitutionally valid. It provides for a balancing arrangement to secure the interests of the person as also ensures that the proceeds of cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o revive the same provision in the existing form. (b) We are unable to agree with the observations in Nikesh Tarachand Shah distinguishing the enunciation of the Constitution Bench decision in Kartar Singh ; and other observations suggestive of doubting the perception of Parliament in regard to the seriousness of the offence of money-laundering, including about it posing serious threat to the sovereignty and integrity of the country. (c) The provision in the form of Section 45 of the 2002 Act, as applicable post amendment of 2018, is reasonable and has direct nexus with the purposes and objects sought to be achieved by the 2002 Act and does not suffer from the vice of arbitrariness or unreasonableness. (d) As regards the prayer for grant of bail, irrespective of the nature of proceedings, including those under Section 438 of the 1973 Code or even upon invoking the jurisdiction of Constitutional Courts, the underlying principles and rigours of Section 45 may apply. (xiv) The beneficial provision of Section 436A of the 1973 Code could be invoked by the accused arrested for offence punishable under the 2002 Act. (xv)(a) The process envisaged by Section 50 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary to impress upon the executive to take corrective measures in this regard expeditiously. (xxi) The argument about proportionality of punishment with reference to the nature of scheduled offence is wholly unfounded and stands rejected. 18(iv). The provisions of PMLA again came under the scanner of the Hon ble Apex Court in V. Senthil Balaji Versus State represented by Deputy Director and others s case (supra). There was a difference of opinion by the Division Bench of the Madras High Court while dealing with a writ petition filed seeking a writ of habeas corpus in pursuance of an arrest made, followed by a remand to judicial custody and then to the authority concerned. A reference was made which was then answered by a Larger Bench of the Madras High Court. The majority view was then challenged before the Hon ble Apex Court. The principal issue before the Hon ble Apex Court was the remand in favour of the investigating agency. The appellant before the Hon ble Apex Court was a Cabinet Minister of the State of Tamil Nadu. In pursuance of registration of an ECIR, he was arrested. After his arrest, his wife filed a habeas corpus petition whereas the ED filed an app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided that the period of twenty-four hours shall exclude the time necessary for the journey from the place of arrest to the [Special Court or] Magistrate's Court. 39. To effect an arrest, an officer authorised has to assess and evaluate the materials in his possession. Through such materials, he is expected to form a reason to believe that a person has been guilty of an offence punishable under the PMLA, 2002. Thereafter, he is at liberty to arrest, while performing his mandatory duty of recording the reasons. The said exercise has to be followed by way of an information being served on the arrestee of the grounds of arrest. Any noncompliance of the mandate of Section 19(1) of the PMLA, 2002 would vitiate the very arrest itself. Under sub-section (2), the Authorised Officer shall immediately, after the arrest, forward a copy of the order as mandated under sub-section (1) together with the materials in his custody, forming the basis of his belief, to the Adjudicating Authority, in a sealed envelope. Needless to state, compliance of sub-section (2) is also a solemn function of the arresting authority which brooks no exception. 40. Thereafter, the arrestee has to be t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med Noormohmed Bhatti v. State of Gujarat, (2005) 3 SCC 647, this Court opined that the provision cannot be held to be unreasonable or arbitrary and, therefore, unconstitutional merely because the authority vested with the power may abuse his authority. (Also see Manzoor Ali Khan v. Union of India, (2015) 2 SCC 33). (emphasis supplied) 41. The conclusion thus arrived is that the Legislature in its wisdom has consciously created the necessary safeguards for an arrestee, keeping in mind his liberty, and the need for an external approval and supervision. This provision is in compliance with Article 21 and 22(2) of the Constitution of India. Section 62 Law can never be enforced unless fear supports them. - Sophocles 62. Punishment for vexatious search. Any authority or officer exercising powers under this Act or any rules made thereunder, who without reasons recorded in writing, (a) searches or causes to be searched any building or place; or (b) detains or searches or arrests any person, shall for every such offence be liable on conviction for imprisonment for a term which may extend to two years or fine which may extend to fifty t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as, of recording reasons for the belief regarding involvement of the person in the offence of money laundering and, further, such reasons have to be recorded in writing and while effecting arrest, the grounds of arrest are to be informed to that person. It was noted that the authorized officer has to forward a copy of the order, along with the material in his possession, to the Adjudicating Authority and this safeguard is to ensure fairness, objectivity and accountability of the authorized officer in forming an opinion, as recorded in writing, regarding the necessity to arrest the person involved in the offence of money laundering. The Bench also noted that it is the obligation of the authorized officer to produce the person so arrested before the Special Court or Judicial Magistrate or a Metropolitan Magistrate, as the case may be, within 24 hours and such production is to comply with the requirement of Section 167 Cr. P.C. It was pointed out that there is nothing in Section 19 of the Act of 2002 which is contrary to the requirement of production under Section 167 Cr. P.C. and being an express statutory requirement under Section 19(3) of the Act of 2002, it has to be complied by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is meant to facilitate an element of fairness and accountability. Dealing with the interplay between Section 19 of the Act of 2002 and Section 167 Cr. P.C., this Court observed that the Magistrate is expected to do a balancing act as the investigation is to be completed within 24 hours as a matter of rule and, therefore, it is for the investigating agency to satisfy the Magistrate with adequate material on the need for custody of the accused. It was pointed out that this important factor is to be kept in mind by the Magistrate while passing the judicial order. This Court reiterated that Section 19 of the Act of 2002, supplemented by Section 167 Cr. P.C., provided adequate safeguards to an arrested person as the Magistrate has a distinct role to play when a remand is made of an accused person to an authority under the Act of 2002. It was held that the Magistrate is under a bounden duty to see to it that Section 19 of the Act of 2002 is duly complied with and any failure would entitle the arrestee to get released. It was pointed out that Section 167 Cr. P.C. is meant to give effect to Section 19 of the Act of 2002 and, therefore, it is for the Magistrate to satisfy himself of its d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the ED had recorded reasons to believe that the appellants were guilty of an offence under the Act of 2002 and that there was proper compliance with the mandate of Section 19 of the Act of 2002. He merely stated that, keeping in view the seriousness of the offences and the stage of the investigation, he was convinced that custodial interrogation of the accused persons was required in the present case and remanded them to the custody of the ED! The sentence - It is further (sic) that all the necessary mandates of law have been complied with follows - It is the case of the prosecution . and appears to be a continuation thereof, as indicated by the word further , and is not a recording by the learned Judge of his own satisfaction to that effect. xxx xxx xxx xxx 25. The way in which the ED recorded the second ECIR immediately after the appellants secured anticipatory bail in relation to the first ECIR, though the foundational FIR dated back to 17.04.2023, and then went about ummoning them on one pretext and arresting them on another, within a short span of 24 hours or so, manifests complete and utter lack of bonafides. Significantly, when the appellants were before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is provided by Article 20(3) of the Constitution. It was held that merely because an accused did not confess, it cannot be said that he was not co-operating with the investigation. Similarly, the absence of either or both of the appellants during the search operations, when their presence was not insisted upon, cannot be held against them. 29. The more important issue presently is as to how the EDis required to inform the arrested person of the grounds for his/her arrest. Prayer (iii) in the writ petitions filed by the appellants pertained to this. Section 19 does not specify in clear terms as to how the arrested person is to be informed of the grounds of arrest and this aspect has not been dealt with or delineated in Vijay Madanlal Choudhary (supra). Similarly, in V. Senthil Balaji (supra), this Court merely noted that the information of the grounds of arrest should be served on the arrestee, but did not elaborate on that issue. Pertinent to note, the grounds of arrest were furnished in writing to the arrested person in that case. Surprisingly, no consistent and uniform practice seems to be followed by the ED in this regard, as written copies of the grounds of arrest a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andated 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. 33. We may also note that the language of Section 19 of the Act of 2002 puts it beyond doubt that 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. 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. As already noted hereinbefore, It seems that the mode of informing this to the persons arrested is left to the option of the ED's authorized officers in different parts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced at the time of remand. However, as already noted earlier, this did not serve the intended purpose. Further, in the event their grounds of arrest were equally voluminous, it would be well-nigh impossible for either Pankaj Bansal or Basant Bansal to record and remember all that they had read or heard being read out for future recall so as to avail legal remedies. More so, as a person who has just been arrested would not be in a calm and collected frame of mind and may be utterly incapable of remembering the contents of the grounds of arrest read by or read out to him/her. 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. 38. We may also note 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 of sens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us State represented by Deputy Director and others (supra), the Hon'ble Apex Court further clarified the position and held that the grounds of arrest would have to be furnished to the accused in writing and failure to do so would render the arrest illegal. Since in Pankaj Bansal Versus Union of India and others s case (supra), the grounds of arrest had not been supplied in writing, the arrest and consequential remand to custody was set aside. 21. Reverting to the facts of the present case, it is now to be examined as to whether in the present case, the provisions of Section 19 of the PMLA were duly complied with in the light of the findings returned by the Hon ble Apex Court in the judgments referred to above. 22. From the documents submitted by the respondents, during the course of arguments, it becomes clear that there was material in possession of the Assistant Director of the ED on the basis of which he had reason to believe that the petitioner should be arrested. The document dated 08.06.2023 which has duly been perused by us runs into 17 pages wherein the details of the investigation carried out and the material in possession of the Officer concerned has been re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore it on 16.06.2023. Further remand of 04 days was granted and ultimately on 20.06.2023, the petitioner was remanded to judicial custody. As already observed, there was sufficient material in possession of the Officer concerned which gave him reason to believe that the petitioner was guilty of an offence punishable under the PMLA. Further, grounds of arrest were prepared in writing and were duly conveyed to the petitioner. The petitioner himself read out the same and appended his signatures also. The argument of learned Senior Counsel that the arrest was only on account of the petitioner giving evasive answers is, therefore, devoid of merit because, as noticed above, there was material in possession of the Assistant Director of the ED on the basis of which he had reasons to believe that the petitioner should be arrested and further, the grounds of arrest were recorded in writing. 25. The question which would, therefore, arise would be as to whether this would be sufficient compliance of the provisions of Section 19 of the PMLA or not. In view of the ratio laid down by the Hon ble Apex Court in the case of Pankaj Bansal Versus Union of India and others (supra), the answer woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the arrested person to be aware of the grounds of arrest and the basis for the officer's 'reason to believe' that the arrested person was guilty of offence punishable under the PMLA. 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. It was held that the communication of the grounds of arrest, as mandated by Article 22 (1) of the Constitution and Section 19 of the PMLA, is, therefore, meant to serve this higher purpose and must be given due importance. The Hon'ble Apex Court also held that the decision of the Delhi High Court in the case of Moin Akhtar Qureshi Versus Union of India and others 2017 SCC Online Del 12108; WP (Crl.) No.2465 of 2017, decided on 01.12.2017 and that of the Bombay High Court in the case of Chhagan Chandrakant Bhujbal vs. Union of India and others 2017 (1) AIR Bom R (Cri) 929 which took a contrary view do not lay down the correct law. 27. It would be essential to notice that in Pankaj Bansal Versus Union of India and others s case (s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a new rule but to maintain and expound the old one . It was held that Judges do not make law, they only discover or find the correct law. It was held that even where a subsequent decision alters the earlier one, the later decision does not make new law and it only discovers the correct principles of law which have to be applied retrospectively. The findings of the Hon ble Apex Court were as under:- 35. In our judgment, it is also well settled that a judicial decision acts retrospectively. According to Blackstonian theory, it is not the function of the Court to pronounce a new rule but to maintain and expound the old one . In other words, Judges do not make law, they only discover or find the correct law. The law has always been the same. If a subsequent decision alters the earlier one, it (the later decision) does not make new law. It only discovers the correct principle of law which has to be applied retrospectively. To put it differently, even where an earlier decision of the court opened for quite some time, the decision rendered later on would have retrospective effect clarifying the legal position which was earlier not correctly understood. 30. It is, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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