India: Requirement Of Arrest Warrant For Arresting A Person Under Section 19 Of The PMLA (AML India)

Last Updated: 29 April 2019
Article by Vijay Pal Dalmia, Partner and Rajat Jain

Article by Vijay Pal Dalmia, Advocate, Supreme Court of India and Delhi High Court, Partner & Head of Intellectual Property Laws Division, Vaish Associates Advocates, India

Under Section 19 of the Prevention of Money Laundering Act, 2002 (hereinafter also referred as "PMLA"), the Director, Deputy Director, Assistant Director or any other officer authorized in this behalf by the Central Government by general or special order, has the power to arrest a person.

The relevant authority under PMLA can arrest a person if on the basis of material in his possession,

  • he has reason to believe  that any person has been guilty of an offence punishable under PMLA, and
  • the reason for such belief has been recorded in writing.

After arresting a person, such authority is bound to

  • inform the arrested person about the grounds for his arrest.
  • forward a copy of the arrest order along with the material in his possession to the Adjudicating Authority.
  • Produce such person, within twenty-four hours, before the Special Court or Judicial Magistrate or a Metropolitan Magistrate, as the case may be, having jurisdiction.
    • Provided that the period of twenty-four hours shall exclude the time necessary for the journey from the place of arrest to the Court.

From the bare perusal of the Section 19 of the PMLA, it is apparent that there is no requirement under the section to obtain an arrest warrant from the Court before arresting a person. If the conditions mentioned in Section 19 of the PMLA are fulfilled, the relevant authority under PMLA can arrest a person.

The question whether the offences under the PMLA are cognizable or non-cognizable is irrelevant for the purpose of arrest under PMLA. There are contradictory judgments of High Courts on the point whether the offences under PMLA are cognizable or non-cognizable. The matter is now sub-judice before the Hon'ble Supreme Court.

Under the Criminal Procedure Code, 1973 (Cr.P.C), the meanings of cognizable and non-cognizable offence are as under:

  • 'Cognizable Offence' means an offence in which, a Police officer may arrest without any warrants or orders of the court.
  • 'Non-cognizable Offence' means an offence in which a Police Officer has no authority to arrest without warrants.

In general parlance, if an offence is a cognizable offence, it means that the Police Officer has the power to arrest and investigate without the permission of the Court, and for the non-cognizable offence, it is vice-versa.

However, under the PMLA, there are separate provisions for search, seizure and arrest and the same are not dependent on the provision of the Cr.P.C. As per Section 65 of the PMLA, the provision of Cr.P.C shall apply only to the extent of not being inconsistent with the provisions of the PMLA. The issue of arrest of a person under Section 19 of the PMLA is not dependent whether the offence is cognizable or not.

The Division Bench of the Bombay High Court in the case of Chhagan Chandrakant Bhujbal v. Union of India (https://indiankanoon.org/doc/138917199/) has held that it does not matter whether the offence was cognizable or non-cognizable since the power of arrest conferred under Section 19 of the PMLA was not restricted by such characterization.

Hence, it is manifest that there is no requirement under the PMLA to obtain an arrest warrant before arresting a person under Section 19 of the Act.

Email id: vpdalmia@vaishlaw.com Mobile No.: +91 9810081079

LinkedIn: https://www.linkedin.com/in/vpdalmia/

Facebook: https://www.facebook.com/vpdalmia

Twitter: @vpdalmia

And

Rajat Jain, Advocate

Mobile No. 9953887311

© 2018, Vaish Associates Advocates,
All rights reserved
Advocates, 1st & 11th Floors, Mohan Dev Building 13, Tolstoy Marg New Delhi-110001 (India).

The content of this article is intended to provide a general guide to the subject matter. Specialist professional advice should be sought about your specific circumstances. The views expressed in this article are solely of the authors of this article.

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