– Riya Tewatia
CITATION : Pankaj Bansal vs. Union of India, 2023 SCC Online SC 1200
BENCH : Justice A.S. Bopanna and Justice Sanjay Kumar
JUDGEMENT : October 3, 2023
Introduction
The case of Pankaj Bansal vs. Union of India (Pankaj Bansal v. Union of India, 2023) revolves around the arrest of Pankaj Bansal and Basant Bansal, two important figures of the M3M Group(real estate company) by the Enforcement Directorate.
The Supreme Court’s decision in this case addressed the procedural rights concerning rights made under the Prevention of Money Laundering Act(PMLA), 2002.
The appellant in the case i.e., Pankaj Bansal, argued the validity of the arrest under Section 19(1) of the PMLA Act, 2002 that deals with “Power to Arrest”. Also it brought into focus Article 22(1) of the Constitution of India that states that- “Any person who is in custody to be informed as to why he has been arrested”.
Facts
Pankaj Bansal and Basant Bansal, key members in the M3M Group were involved with the IREO Group, whose Managing Director – Vice Chairman, Mr. Lalit Goyal was booked under the provisions of PMLA.
The IREO group was accused by several FIR’s made against them of taking the payments from the buyers but not delivering the possession of the purchased properties that the parties had booked in the developing properties of the company. Due to the FIR’s , an investigation begun which revealed that the company received huge amounts of money which was siphoned off to various offshore accounts. It was also observed that a large sum of money was transferred to the M3M Group as well through shell companies. It revealed the involvement of M3M Group with the IREO Group in money laundering.
The company M3M Group was founded by petitioner Basant Bansal, Roop Kumar Bansal and director Pankaj Bansal.
An FIR was also filed in the Police Station Anti Corruption Bureau against Mr. Sudhir Parmar, appointed as a Special Judge for dealing with cases related to Enforcement Directorate and CBI cases. He was accused of showing favoritism to Lalit Goyal, Roop Bansal and Basant Bansal. Also while being appointed as the Additional District and Sessions Judge, Gurugram , he abused his powers to receive undue favours from the IREO Group and M3M Group. It was also revealed that his nephew, Ajay Parmar was appointed as legal advisor to the M3M Group with a Rs. 12 lack per annum package which was later revised to 18-20 lacks per annum as Mr. Sudhir Kumar became Special Judge. Their involvement came out through a series of voice recordings and screenshots during the investigation. A case was filed against them.
The ED initiated action against the Bansals based on allegations involving the IREO Group and associated public servants. The core issue was that the ED did not provide written reasons for the arrests, as mandated by Section 19(1) of the PMLA.
The Bansals were summoned to the ED office concerning an investigation linked to one ECIR, only to be confronted with the second ECIR and subsequently arrested.
Issues Raised
– Section 19 (1) of PMLA :-
“Power to arrest.—(1) If the Director, Deputy Director, Assistant Director or any other officer authorized in this behalf by the Central Government by general or special order, has on the basis of material in his possession, reason to believe (the reason 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.”
The issue raised was whether the ED was required to record the reasons for arrest in writing under Section 19(1) of the PMLA.
-Article 22(1) of the Indian Constitution :-
“No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.”
The second issue raised was about constitutional rights. They argued that the failure to inform them of the reasons for their arrest in writing violated their fundamental rights under this article, which guarantees the right to be informed of the grounds of arrest and the right to consult a legal practitioner.
– The petitioners asserted that the arrests were arbitrary and lacked transparency, thereby undermining the principles of natural justice.
Contention
– Petitioner’s Arguments :
>Violation of procedural safeguards; the petitioners contended that the arrest made by the ED was not in accordance with the written provisions of the section 19 of the PMLA Act. According to this act , the ED is required to provide the written reasons for arrest. The petitioners in this case argued that the ED failed to do so, thereby violating the statutory requirement and compromising the legitimacy of their arrest.
They argued that the absence in providing the written reasons for the arrest constitutes a significant procedural lapse that undermines their rights.
>The petitioners also argued that their fundamental rights were also infringed upon. Article 22(1) mandates that the arrested person must be informed about the grounds of arrest as soon as possible. The Bansals argued that the failure to receive written reasons for their arrest prevented them from understanding the basis of their detention and impeded their ability to challenge the arrest legally and seek bail.
>The lack of transparency of the arrest made by the ED was also a point of contention in the case because of lack of written reasons.
– Respondent’s arguments :
The respondents represented the Union of India and the ED
> The respondents maintained that the procedural requirements were met, and the arrests were made according to the provisions of PMLA. It was argued that the ED had sufficient grounds for arrest based on the evidence that proved the linking of M3M Group in money laundering.
> The respondents argued that the petitioners were orally communicate the grounds of arrest which sufficient to meet the rounds of arrest under section 19 (1) due to the urgency and confidentiality required.
> The respondents highlighted the importance of confidentiality to not compromise the investigation’s integrity.
Rationale
The Supreme Court’s decision in this case was based on Sec 19(1) of PMLA and Art. 22(1) which provides protection to the arrested person.
It was held by the bench of Justice A.S. Bopanna and Justice Sanjay Kumar that for the statutory mandate of Section 19(1) of PMLA, a copy of written reason of arrest must be provided to the arrested person.
The SC further criticized ED’s style which lacked transparency and fair play in action. “ED is expected to act with utmost probity and with the highest degree if dispassion and fairness.”- Said the SC.
The Supreme Court also held that the order of remand was also not valid as it was passed in a mechanical manner and without examining whether the ED had reasons to believe and whether the grounds of arrest were provided or not. Therefore, the arrested persons were entitled to be released as the detention was illegal.
The court observed that the failure to comply with these procedural requirements vitiates the arrest, rendering them illegal and unconstitutional. Consequently, the court ordered the immediate release of the Bansals.
Defects of Law
Before the judgment in this case , there were no specific grounds for how the arrested person was to be made aware of the grounds of arrest made by ED. In some parts, the grounds were communicated orally while in some parts written reasons were provided. The lack of specificity in the section 19(1) of PMLA on the execution of writing the reasons of arrest opened the door to potential misuse and arbitrary arrests.
The manner in which the ED conducted the arrests in this case pointed out the lack of transparency and potential arbitrariness. There needs to be a standardized and transparent procedure that enforcement agencies must follow during arrests to ensure accountability.
Also it was observed in the case that there were two consecutive ECIR’s filed against the petitioners which can be categorized as the misuse of powers of ED as the first ECIR was merely for the investigation purposes but the second ECIR led to the arrest.
Inference
The case of Pankaj Bansal v Union of India pointed out various important requirements that are needed to make the legal procedures of the country more transparent and legitimate. Although this judgment is a step forward to make criminal legal framework more transparent and fair, various more amendments are needed.
In the case of Ram Kishore Arora v Enforcement Directorate, (Ram Kishore Arora v. Enforcement Directorate, 2024) the SC muddied the waters as it was held specifically in Pankaj Bansal case that written reasons were required but then SC found merit in ED’s arguments in Ram Kishore case that the signatures were obtained after he was allowed to read the reasons of arrest making the Pankaj Bansal decision inapplicable.
The powers given to the ED needs to be regulated to curb the misuse of powers as it can be observed in this case when the second ECIR was solely filed to arrest the petitioners. As the SC also stated that the ED exercises huge powers which should be used wisely and in accordance with the law.
The Pankaj Bansal v Union of India case serves as a critical reminder of the need for procedural fairness, transparency and accountability in the enforcement of anti- money laundering laws.
Riya Tewatia
MDU Rohtak, Haryana
Bibliography
Pankaj Bansal v. Union of India, 3051-3052 (Supreme Court of India October 3, 2023).
Ram Kishore Arora v. Enforcement Directorate, R.P.(Crl.) No.-000033/2024 (Supreme Court of India January 31, 2024).