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Synopsis

Solicitor General of India (SGI) Tushar Mehta on Monday told the Delhi High Court that the Central government is planning to file a review petition against a recent Supreme Court ruling in the Pankaj Bansal & Ors. Vs. Enforcement Directorate case.

In an important judgment, the Supreme Court, on October 3, held mandatory for the Enforcement Directorate (ED) to disclose grounds of arrest as a matter of course and without exception in money laundering cases.

The review petition was made public during the hearing of petitions filed by Prabir Purkayastha, the NewsClick founder, and Amit Chakraborty, its HR department's head. These petitions challenged their arrest and remand in a case under the Unlawful Activities (Prevention) Act (UAPA).

During the proceedings before Justice Tushar Rao Gedela, Senior Advocate Dayan Krishnan, on behalf of Prabir Purkayastha, cited the Supreme Court’s judgment to argue that the failure to provide grounds of arrest violates Article 22(1) of the Indian Constitution.

However, Solicitor General Mehta argued that there is a distinction between the provisions of the PMLA and UAPA and that the Supreme Court’s judgment was specific to a PMLA case.

Mehta submitted that his colleague and Additional Solicitor General (ASG) SV Raju was "rightly worried" that such a directive from the Supreme Court might cause issues in regard to arrests that had already been made, hence, he had requested the Apex Court to use “henceforth” in its judgment.

The Solicitor General pointed out that the arrests in the NewsClick case occurred on October 3, the same day the Supreme Court issued its ruling, and the Delhi Police were not party to the case. He further submitted that the copy of the judgment was uploaded on the Supreme Court's site on October 4. 

"Presuming that UAPA is governed by the Pankaj Bansal judgment, I would not fall foul of it because the arrest was made on October 3", he argued. 

During the initial hearing of Purkayastha and Chakraborty’s petitions, Justice Gedela drew comparisons between Section 43D of the UAPA and Section 19 of the PMLA. The judge observed that the failure to disclose arrest grounds in the remand application appeared to contradict a Supreme Court judgment.

He remarked, “Apparently, in the application for remand you don’t disclose the grounds of arrest. There is a judgment of the Supreme Court staring in the eye,” highlighting the potential legal implications of the Supreme Court’s ruling.

Supreme Court Ruling 

The apex court had also ruled that the mere non-cooperation of a witness in response to the summons issued under Section 50 of the Prevention of Money Laundering Act of 2002 would not be enough to render him or her liable to be arrested under Section 19. 

"The ED, mantled with far-reaching powers under the stringent Act of 2002, is not expected to be vindictive in its conduct and must be seen to be acting with utmost probity and with the highest degree of dispassion and fairness," a bench of Justices A S Bopanna and Sanjay Kumar had held.

"To give true meaning and purpose to the constitutional and the statutory mandate of Section 19(1) of the Act of 2002 of informing the arrested person of the grounds of arrest, we hold that it would be necessary, henceforth, that a copy of such written grounds of arrest is furnished to the arrested person as a matter of course and without exception," the bench had said.

Case Title: Prabir Purkayastha v. State NCT of Delhi & Amit Chakraborty v. State (NCT of Delhi)