The Supreme Court has held that an accused, who has not been arrested by the ED during a money laundering probe, while appearing before a special court pursuant to summons issued by such court, need not satisfy the stringent twin test for bail under Section 45 of the Prevention of Money Laundering Act (PMLA).
The Bench of Justice Abhay S Oka and Justice Ujjal Bhuyan further ruled that the national agency could not arrest an accused who appeared before a special court after issuing of summons in a PMLA complaint, without obtaining permission of such court.
It said that if the ED wanted custody of an accused after the person appeared on issuance of summons, ED could only get custody after filing an application before the special court. Further, the court would only grant custody with reasons satisfying that custodial interrogation was needed.
The Bench further ruled that in essence, ED officers could not use their special powers to arrest an accused under Section 19 of the PMLA once they have moved a complaint against the accused who was not arrested during the course of investigation.
As per Section 19 of PMLA, ED officers can arrest an accused if they have a reason to ‘believe’ that the person was guilty of an offence punishable under the Act.
The Apex Court passed the order in a case dealing with whether an accused in a money laundering case still has to meet the stringent twin test for bail after appearing before the special court pursuant to the summons issued on the ED’s complaint.
On April 30, the top court of the country had reserved its judgment in the matter.
It raised the question of whether the accused can apply for bail under regular provisions of the Code of Criminal Procedure (CrPC) if he appeared, pursuant to the summons issued by the special court under the PMLA.