New Delhi: The Supreme Court on Friday said the power to arrest under the anti-money laundering law cannot be exercised according to the whims and fancies of the ED officer.
A bench of Justices Sanjiv Khanna and Dipankar Datta, which granted interim bail to Delhi Chief Minister Arvind Kejriwal in the money laundering case related to an alleged excise policy scam, said any leniency and Undue flexibility towards the Enforcement Directorate (ED) would be detrimental to the constitutional values of the rule of law and the life and liberty of the people.
"An officer cannot be permitted to cherry-pick material which implicates the person to be arrested. He must equally apply his mind to other material which will absolve and exonerate the arrestee. The power to arrest under Section 19(1) of The PML Act "cannot be exercised according to the whims and fancies of the officer," the court said in its 64-page verdict. The court said that ED officers acting under Section 19(1) of the PML Act Prevention of Money Laundering (PMLA) cannot ignore or not consider material that exonerates the arrestee.
"The legality of 'reasons to believe' must be examined based on what is mentioned and recorded in them and in the recorded material.
"However, the officer acting under Section 19(1) of the PML Act cannot ignore or fail to consider the exonerating material of the arrestee. Any lack of consideration would lead to difficult and unacceptable results," it said. The court said that The opinion of the Emergency Department official is undoubtedly subjective, but that the formation of an opinion must be carried out in accordance with the law.
"The subjectivity of the opinion is not a carte blanche to ignore relevant acquittal material without explanation. In such a situation, the officer commits an error of law that goes to the root of the decision-making process and amounts to legal malice," said. saying.
The court made the observation as Kejriwal argued that the ED did not mention in the "grounds of arrest" the exculpatory statements made by the witnesses in the case and only considered the inculpatory statements in which he was named. The top court said that an accepted view in the 2022 verdict of Vijay Madanlal Choudhary, which upheld the validity of the PMLA, is that the arrest warrant under section 19(1) of the PMLA is a decision taken by a high-ranking officer.
"Therefore, the senior officer is expected to be aware of the obligation imposed by Section 19(1) of the PMLA before issuing an arrest warrant. We are of the view that it would be inconsistent to argue that the senior officer high ranking "We should not objectively consider all material, including exculpatory material," he said.
The apex court observed that incorrect application of law or arbitrary exercise of duty leads to illegality in the process and the court can exercise its judicial review to reverse such decision."This would not amount to judicial overreach or interference with investigation, as the DoE (Enforcement Directorate) has argued. The court only ensures that the application of the law is in accordance with the law and the Constitution. An adverse decision would only help to ensure better compliance with the statute and principles. of the Constitution," he stated.
The court said jurisdictional review allows for errors of law to be reviewed when constitutional or statutory terms, essential to the exercise of power, are misapplied or interpreted.
"Judicial review is permitted to check improper exercise of power. For example, it is an improper exercise of power when the power is not genuinely exercised, but rather to avoid embarrassment or to take personal revenge. Lastly, judicial review can "The authorities have failed to consider reasons that are relevant or have taken into account reasons that are not relevant," he said. Underlining that an error in the decision-making process can vitiate a judgment or decision of a statutory authority, the court said that in terms of section 19(1) of the PMLA, an error in decision-making can lead to arrest and deprivation of liberty of the arrested person.
"Although it is not similar to cases of preventive detention, but given the nature of the order involving arrest, it requires careful examination and consideration. However, at the same time, the courts should not go into the correctness of the opinion formed or the sufficiency of the material on which it is based, although if a vital motive or fact is not considered or the motive or reason is determined to be non-existent, the detention order may fail," he said.
A bench of Justices Sanjiv Khanna and Dipankar Datta, which granted interim bail to Delhi Chief Minister Arvind Kejriwal in the money laundering case related to an alleged excise policy scam, said any leniency and Undue flexibility towards the Enforcement Directorate (ED) would be detrimental to the constitutional values of the rule of law and the life and liberty of the people.
"An officer cannot be permitted to cherry-pick material which implicates the person to be arrested. He must equally apply his mind to other material which will absolve and exonerate the arrestee. The power to arrest under Section 19(1) of The PML Act "cannot be exercised according to the whims and fancies of the officer," the court said in its 64-page verdict. The court said that ED officers acting under Section 19(1) of the PML Act Prevention of Money Laundering (PMLA) cannot ignore or not consider material that exonerates the arrestee.
"The legality of 'reasons to believe' must be examined based on what is mentioned and recorded in them and in the recorded material.
"However, the officer acting under Section 19(1) of the PML Act cannot ignore or fail to consider the exonerating material of the arrestee. Any lack of consideration would lead to difficult and unacceptable results," it said. The court said that The opinion of the Emergency Department official is undoubtedly subjective, but that the formation of an opinion must be carried out in accordance with the law.
"The subjectivity of the opinion is not a carte blanche to ignore relevant acquittal material without explanation. In such a situation, the officer commits an error of law that goes to the root of the decision-making process and amounts to legal malice," said. saying.
The court made the observation as Kejriwal argued that the ED did not mention in the "grounds of arrest" the exculpatory statements made by the witnesses in the case and only considered the inculpatory statements in which he was named. The top court said that an accepted view in the 2022 verdict of Vijay Madanlal Choudhary, which upheld the validity of the PMLA, is that the arrest warrant under section 19(1) of the PMLA is a decision taken by a high-ranking officer.
"Therefore, the senior officer is expected to be aware of the obligation imposed by Section 19(1) of the PMLA before issuing an arrest warrant. We are of the view that it would be inconsistent to argue that the senior officer high ranking "We should not objectively consider all material, including exculpatory material," he said.
The apex court observed that incorrect application of law or arbitrary exercise of duty leads to illegality in the process and the court can exercise its judicial review to reverse such decision."This would not amount to judicial overreach or interference with investigation, as the DoE (Enforcement Directorate) has argued. The court only ensures that the application of the law is in accordance with the law and the Constitution. An adverse decision would only help to ensure better compliance with the statute and principles. of the Constitution," he stated.
The court said jurisdictional review allows for errors of law to be reviewed when constitutional or statutory terms, essential to the exercise of power, are misapplied or interpreted.
"Judicial review is permitted to check improper exercise of power. For example, it is an improper exercise of power when the power is not genuinely exercised, but rather to avoid embarrassment or to take personal revenge. Lastly, judicial review can "The authorities have failed to consider reasons that are relevant or have taken into account reasons that are not relevant," he said. Underlining that an error in the decision-making process can vitiate a judgment or decision of a statutory authority, the court said that in terms of section 19(1) of the PMLA, an error in decision-making can lead to arrest and deprivation of liberty of the arrested person.
"Although it is not similar to cases of preventive detention, but given the nature of the order involving arrest, it requires careful examination and consideration. However, at the same time, the courts should not go into the correctness of the opinion formed or the sufficiency of the material on which it is based, although if a vital motive or fact is not considered or the motive or reason is determined to be non-existent, the detention order may fail," he said.
