SC: ED can't arrest accused after court takes cognisance

‘Right to liberty under Article 21 at risk with current PMLA practices’

The Supreme Court on Thursday ruled that the Enforcement Directorate (ED) cannot arrest an accused under Section 19 of the Prevention of Money Laundering Act (PMLA) once a special court has taken cognisance of a money laundering complaint.

The bench of Justices Abhay S Oka and Ujjal Bhuyan stated that when an accused appears before a court following a summons, the ED must apply to the relevant court to obtain custody.

“After cognisance is taken of the offence punishable under Section 4 of the PMLA based on a complaint under Section 44(1)(b), the ED and its officers are powerless to exercise power under Section 19 to arrest a person shown as an accused in the complaint,” the court declared.

The court emphasised that an accused appearing before the special court due to a summons cannot be considered in custody.

“Accused who appeared before the court pursuant to the summons are not required to apply for bail, and thus twin conditions of Section 45 of PMLA are not applicable,” the bench stated in its judgement.

The twin conditions mandate that when an accused in a money laundering case applies for bail, the court must allow the public prosecutor to be heard and only grant bail if it is convinced that the accused is not guilty and unlikely to reoffend.