“DoE (Directorate of Enforcement) should act uniformly, consistent in conduct, confirming one rule for all,” it said.It said the in-built checks under section 19 of the PMLA say designated officers must record “reasons to believe”.Secondly, while affecting the arrest, the reasons shall be furnished to the arrestee and lastly, a copy of the order of arrest along with the material in possession have to be forwarded to the safe custody of the adjudicating authority.”This ensures fairness, objectivity and accountability of the designated officer while forming their opinion, regarding the involvement of the arrestee in the offence of money laundering,” it said.The bench said it would be incongruous, if not wrong, to hold that the accused can be denied and not furnished a copy of the “reasons to believe”.In reality, this would effectively prevent the accused from challenging their arrest, questioning the “reasons to believe”, it said.It, however, accepted that in a one-off case, it may not be feasible to reveal all material, including names of witnesses and details of documents for the ED, when the investigation is in progress.”This will not be the position in most cases. DoE may claim redaction and exclusion of specific particulars and details. However, the onus to justify redaction would be on the DoE. The officers of the DoE are the authors of the ‘reasons to believe’ and can use appropriate wordings, with details of the material, as are necessary in a particular case,” the bench said.It added that as there may only be a small number of cases where redaction is justified for good cause, this reason is not a good ground to deny the accused’s access to a copy of the “reasons to believe” in most cases.”Where the non-disclosure of the ‘reasons to believe’ with redaction is justified and claimed, the court must be informed. The file, including the documents, must be produced before the court. Thereupon, the court should examine the request and if they find justification, a portion of the “reasons to believe” and the document may be withheld. This requires consideration and decision by the court. DoE is not the sole judge,” it said.Referring to the issue of judicial review to be exercised by the court while examining the arrest of a person by the ED, the bench said if adequate and due care is taken by the probe agency ensure that the “reasons to believe” justify the arrest in terms of Section 19(1) of the PMLA, the exercise of power of judicial review would not be a cause of concern.It said doubts will only arise when the reasons recorded by the authority are not clear and lucid and, therefore, a deeper and in-depth scrutiny is required.”Arrest, after all, cannot be made arbitrarily and on the whims and fancies of the authorities. It is to be made on the basis of the valid “reasons to believe”, meeting the parameters prescribed by the law. In fact, not to undertake judicial scrutiny when justified and necessary would be an abdication and failure of constitutional and statutory duty placed on the court to ensure that the fundamental right to life and liberty is not violated,” it said.
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