In a significant ruling the Supreme Court observed that the Enforcement Directorate (ED) not to expect admission of guilt from summoned person for interrogation and mere non-cooperation from witness not ground for arrest under the Prevention of Money Laundering Act, 2002 (PMLA).
The appellants, Pankaj Bansal and Basant Bansal were arrested on charges of money laundering and bribing a former CBI judge in Gurugram by the ED.
The Deputy Director of ED, Saket Singh submitted before the Supreme Court that the arrests were made in accordance with Section 19 of the PMLA and the information/details regarding the arrests of Pankaj Bansal and Basant Bansal were duly communicated to Mrs. Abha Bansal and Ms. Payal Kanodia over the telephone immediately after their arrests. He stated that the written grounds of arrest were first read out to Basant Bansal but he refused to sign the same.
According to Saket Singh, during the investigation, both of them were found to be actively involved in money laundering and deliberately attempted to withhold information, that was in their exclusive knowledge, which was crucial to establish their roles and to take the money laundering investigation to its logical end. He asserted that they adopted an attitude of non-cooperation during the investigation and the fact that they had bribed the ED Judge to take benefit in the existing proceedings showed that they were capable of influencing witnesses/authorities involved in the case.
A Two-Judge Bench comprising Justice AS Bopanna and Sanjay Kumar observed that “Mere non-cooperation of a witness in response to the summons issued under Section 50 of the PMLA would not be enough to render him/her liable to be arrested under Section 19of the PMLA. As per its replies, it is the claim of the ED that Pankaj Bansal was evasive in providing relevant information. It was however not brought out as to why Pankaj Bansal’s replies were categorized as ‘evasive’ and that record is not placed before us for verification.”
The Court relied on the judgment in Santosh S/o Dwarkadas Fafat vs. State of Maharashtra, wherein the Supreme Court noted that custodial interrogation is not for the purpose of ‘confession’ as the right against self-incrimination is provided by Article 20(3) of the Constitution. It was held that merely because an accused did not confess, it cannot be said that he was not co-operating with the investigation. Similarly, the absence of either or both of the appellants during the search operations, when their presence was not insisted upon, cannot be held against them.
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