SC Questioned ED’s Arrest Policy Under PMLA In Kejriwal Plea

Last Updated on October 9, 2024 by NewsDesk SLC

Kejriwal, who was arrested on 21 March in the PMLA case, had challenged his arrest, claiming it violated section 19 of PMLA. He had argued that his arrest ‘would falter on the ground that the ‘reasons to believe’ do not mention and record reasons for ‘necessity to arrest’.”

The Supreme Court on Friday questioned the Enforcement Directorate’s (ED) arrest policy as it has so far arrested only 513 people under the Prevention of Money Laundering Act (PMLA) out of 1,142 prosecution complaints filed in various courts.

“The data raises a number of questions, including whether the DoE has formulated a policy as to when they should arrest a person involved in offenses committed under the PMLA,” Justices Sanjiv Khanna and Dipankar Dutta said in their Delhi judgment. Chief Minister Arvind Kejriwal’s petition challenges his arrest in a liquor scam case. The 64-page judgment compiled data from the ED’s official website and noted that 5,906 ECIRs — the equivalent of a First Information Report (FIR) under the now erstwhile Indian Penal Code (IPC) — had been registered as on January 31, 2023. The search was conducted in 531 ECIRs by issuing 4 954 search warrants. The total number of ECIRs registered against former MPs, legislators and advisers recorded by the court was 176.

The court observed that the opinion of the ED under Section 45 of the PMLA prevails as far as the grant of bail is concerned. Therefore, the agency should act “uniformly, consistently in behaviour and confirm one rule for all”. Section 45 of PMLA deals with grant of bail in PMLA cases. This section emphasizes the strict condition of the two-fold test, which reverses the burden on the accused to prove that he is not guilty. If the accused is found guilty, the court must refuse bail.

The judges did not issue a final opinion on Kejriwal’s plea to quash his arrest as they asked a larger bench (of three or five judges) to determine whether an accused in a PMLA case can seek quashing of his arrest on the grounds that it was not necessary. This, the court said, is important with respect to the doctrine of proportionality, a jurisprudence developed by the Supreme Court to strike a fair balance between individual rights and the public interest.

And since this question of law would require careful consideration, the court saw fit to grant interim bail to Kejriwal. He also said that his regular bail plea pending before the Delhi High Court would be considered on merits.

However, the court said Kejriwal’s arrest met the parameters under Section 19 of the PMLA, under which an ED officer can arrest someone if he has “reason to believe” that the accused is guilty of money laundering. Section 19 of the PMLA deals with the powers of an ED officer to arrest a person.