Will ED arrest Amanatullah, will the agency ignore Supreme Court’s rebuke?

New Delhi: The Enforcement Directorate (ED) reached Aam Aadmi Party (AAP) MLA Amanatullah Khan’s house in Batla House on Monday to conduct a raid. Amanatullah also shared a video regarding this and said that ED people have come to arrest me in the name of search warrant. My mother-in-law has cancer and she had an operation 4 days ago. I have responded to all the notices of ED. They have alleged that fake allegations are being made against them. They are harassing not only me but also my party. Their aim is to break us and separate us. … We are not going to break but we will not be afraid of them. I have faith in the court that the way we have got justice in the past, we will get it in the future as well. At the same time, BJP has termed this action as you reap what you sow. Let us know whether ED can arrest Amanatullah Khan. What are sections 19 and 45 of money laundering, on which the Supreme Court has already tied the hands of ED. Let us understand from a legal expert.

The Supreme Court had said…then the investigating agency cannot arrest the accused

Supreme Court advocate Shivaji Shukla says that in May this year, the Supreme Court had said in an important decision that if the special court has taken cognizance of the ED’s complaint in money laundering cases, then the Enforcement Directorate cannot arrest the accused. The bench of Justice Abhay S Oka had said that if the ED feels that the custody of the accused is necessary for further investigation in such cases, then it will have to appeal to the special court. The bench had said that after hearing the accused’s side, the special court will have to compulsorily give a decision on the application, briefly giving the reason for it. After the hearing, the court will allow custody only if it is satisfied that interrogation by keeping in custody is necessary.
Bail conditions cannot weaken fundamental rights, Supreme Court’s big comment

The conditions of section 19 must be fulfilled before arrest

At that time, the Supreme Court had also said one important thing that if a person has not been named as an accused in the complaint, then to arrest him/her, the ED will have to fulfill the conditions of Section 19 of the Prevention of Money Laundering Act (PMLA), 2002, i.e. the procedure for arrest.

How justified is an arrest based on suspicion?

According to Shivaji Shukla, Section 19 of the PMLA empowers Enforcement Directorate officials to arrest individuals based on material they have, giving reasonable grounds to suspect that a person has committed an offence punishable under the law. It also states that the ED should record in writing whatever reasons it has about the accused. Also, the grounds for arrest should be told to the accused as soon as possible. However, investigating agencies often do not follow these guidelines. For this reason, many cases have come up before the courts regarding the grounds for arrest, which brings the credibility of the ED under question.

What is section 45 of PMLA, due to which ED has unlimited power

According to advocate Shivaji Shukla, the dual conditions of bail under section 45 of PMLA are extremely tough for an accused. One has to prove in court that he/she is prima facie innocent of the crime. Secondly, the accused has to convince the judge that he/she will not commit any crime while on bail. The burden of proof is completely on the accused in jail, who is often unable to fight the government. Both these conditions make it almost impossible for an accused to get bail under PMLA. This is why the power of ED used to be unlimited. A bench of Justices Rohinton Nariman and S.K. Kaul had struck down section 45(1) of PMLA, which added two additional conditions for bail, in November 2017, terming it arbitrary.

The Supreme Court also made it clear in this matter

According to Shivaji Shukla, the Supreme Court had then also clarified that the special court can direct the accused to submit a bond as per Section 88 of the Code of Criminal Procedure. The bond given under Section 88 of the CrPC is only an undertaking. The order to accept the bond under Section 88 is not the same as granting bail and hence the twin conditions of Section 45 of PMLA do not apply to it. This decision was based on the appeal filed by Tarsem Lal against the ED, in which the Punjab and Haryana High Court had refused to grant him/her anticipatory bail.

ED also has the power to arrest the CM

According to Shivaji Shukla, the ED has the power to investigate cases related to money laundering and certain economic crimes specified under the PMLA. It can initiate investigations based on its own intelligence or on receipt of complaints or referrals from other agencies or authorities. The agency has the power to search, raid and seize properties, documents and assets suspected of being involved in money laundering or economic crimes. This includes both movable and immovable properties. It also has the power to arrest individuals suspected of being involved in money laundering or economic crimes under the PMLA, even if it is the CM.

Can confiscate assets related to money laundering in India and abroad

The ED can attach properties both in India and abroad that are suspected to be the proceeds of crime or involved in money laundering activities. It can also seek orders for confiscation of such properties after due process of law. It can also prosecute offenders before special courts designated under the PMLA. Besides, it collaborates with international agencies and authorities to investigate and prosecute cross-border financial crimes. It can seek assistance from foreign jurisdictions.

The agency was reprimanded several times by the Supreme Court in the matter of bail

According to Shivaji Shukla, on August 28, a bench of Justice Abhay S Oka and Justice Augustine George Masih granted bail to a person who was accused of fraud and cheating. This accused was in jail since May 2023, but charges were not framed against him/her. Out of the 14 cases filed against him/her, he/she was either acquitted in 9 or the cases were quashed. The Gujarat High Court had rejected several of his/her bail pleas. At that time, the bench said, there is no dispute that this case is amenable to magistrate’s hearing. The Gujarat High Court should have granted bail. Earlier, in another case, the Supreme Court had said that bail is a rule and jail is an exception. This rule applies even in the Unlawful Activities (Prevention) Act (UAPA Act).

When the Supreme Court said- you cannot pick and choose anyone

Recently, the Supreme Court had severely reprimanded the ED in the liquor scam case. The court had said that the prosecution should be impartial. Only those who have confessed their crime were made witnesses. Tomorrow if you like someone, will you choose him/her and if you don’t like him/her, will you leave him/her? You cannot choose or leave any accused. What kind of impartiality is this? Such a situation is very sad. If he/she has any role, then it is similar to K. Kavitha’s. So it is clear that you are choosing one and leaving the other. Justice Gavai said that you cannot pick and choose any accused.