ED’s power to arrest is ‘not untrammelled’: Delhi high court

NEW DELHI: The Delhi high court on Thursday held that the power of the Enforcement Directorate (ED) to issue summons to a person under Section 50 of the Prevention of Money Laundering Act (PMLA) does not include the power to arrest.
Justice Anup Jairam Bhambhani further observed that the power to arrest a person lies in Section 19 of the PMLA, but even that is not “untrammelled”, making it clear that “authorities do not have the power to arrest on their whims and fancies, and that there is a threefold requirement that must be complied with before arresting a person”.
Petitioner can file for pre-arrest bail, says HC
The Delhi HC was hearing a plea moved by one Ashish Mittal seeking quashing of summons by ED in a case registered in 2020. He also sought a stay on all proceedings emanating from the Enforcement Case Information Report (ECIR), but the court noted he is not an accused and was merely summoned by the probe agency.
However, while analysing the section under which Mittal has been summoned, HC said the power to arrest is “conspicuously absent” in Section 50 of the PMLA, as it empowers an officer to issue summons, require the production of documents, and record statements.
Justice Bhambhani underlined that under Section 50 of the PMLA, ED officers have the power to enforce the attendance of any person for recording statements on oath, with a “mandate that any person so summoned shall be bound to attend, to answer and make statements truthfully” similar to the powers of a civil court.
But Section 50 is distinct from the power to arrest provided under Section 19 of the PMLA which also provides inbuilt safeguards to be adhered to by the authorised officers. The court noted that the ED must have “reasonable belief that the person arrested is guilty of an offence under the PMLA, and not under any other enactment; secondly, the reasons for such a belief must be recorded in writing; and thirdly, such a belief must be based on material that is in the director’s possession.”
The court listed other safeguards such as recording reasons in writing for the belief regarding the involvement of the person in the offence of money laundering and informing the person being arrested of the grounds of his arrest, it noted.
The court dismissed the plea by Mittal, who had expressed strong apprehension about illegal detention or arrest and believed that he would be made a scapegoat. However, the court found no basis to support these concerns and ruled the petitioner was not entitled to a copy of the ECIR since he is not an accused.
While the court clarified that a writ petition is not exactly barred in such cases, it said that Mittal can always seek anticipatory bail if he fears arrest.

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