Pankaj Bansal vs Vijay Madanlal : Conflict Of Judgments On Arrests By ED?

In Vijay Madanlal Choudhary and others vs. Union of India [2022] 6 S.C.R. 382, the Supreme Court (three judges bench) held that non-supply of the Enforcement Case Information Report (ECIR) in a given case cannot be found fault with, as the ECIR may contain details of the material in the ED’s possession and revealing the same may have a deleterious impact on the final outcome of the investigation or inquiry. It was also held that so long as the person is ‘informed’ of the grounds of his/her arrest, that would be sufficient compliance with the mandate of Article 22(1) of the Constitution.

Now in Pankaj Bansal vs Union of India 2023 INSC 866, a two judges bench of the Supreme Court has directed Enforcement Directorate to (henceforth) serve copy of written grounds of arrest to the arrested person. So is there a conflict between two judgments? Did the two Judges bench in Pankaj Bansal refuse to follow the precedent in Vijay Madanlal?

In our view, there is no conflict between the two though it may appear that there is a conflict.

In Vijay Madanlal also, it was held that a person should be ‘informed’ of the grounds of his/her arrest. In fact, Section 19 itself says so and Article 22 makes it a constitutional right too.

It is the Section 19 of the PMLA Act that gives the power to officers of Enforcement Directorate to arrest any person guilty of a money laundering offence. This power can be invoked if the officer has reason to believe that the person has been guilty of an offence punishable under PMLA Act. The provisions also clarifies that the reason for such belief has to be recorded in writing and the accused should be informed of the grounds of arrest, as soon as may be. Article 22(1) provides hat no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest.

Now, the two judges bench in Pankaj Bansal has only issued a direction on how to ‘inform’. It held that it should be done by serving written grounds of arrest. This does not mean, ED should henceforth serve the ECIR too. The judgment also clarifies that in the event any such sensitive material finds mention in such grounds of arrest recorded by the authorized officer, it would always be open to him to redact such sensitive portions in the document and furnish the edited copy of the grounds of arrest to the arrested person, so as to safeguard the sanctity of the investigation.

The court noted that mode of informing ‘grounds of arrest’ to the persons arrested is left to the option of the ED’s authorized officers in different parts of the country, i.e., to either furnish such grounds of arrest in writing or to allow such grounds to be read by the arrested person or be read over and explained to such person.

“In certain parts of the country, the authorized officer would inform the arrested person of the grounds of arrest by furnishing the same in writing, while in other parts of the country, on the basis of the very same prescribed format, the authorized officer would only read out or permit reading of the contents of the grounds of arrest. This dual and disparate procedure to convey the grounds of arrest to the arrested person cannot be countenanced on the strength of the very same arrest order, in the aforestated prescribed format”, the court noted

Regarding the latter procedure, the court noted:

“In the event such grounds of arrest are orally read out to the arrested person or read by such person with nothing further and this fact is disputed in a given case, it may boil down to the word of the arrested person against the word of the authorized officer as to whether or not there is due and proper compliance in this regard.”

“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”

Yes, Pankaj Bansal diluted the general understanding of the ratio in Vijay Madanlal. But these judgments are to be read in a harmonious manner.