2024 INSC 414 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). OF 2024

(Arising out of SLP(Crl.) NO(S). OF 2024)

(D.No. 42896/2023)

PRABIR PURKAYASTHA ….APPELLANT(S)

VERSUS

STATE(NCT OF DELHI) …RESPONDENT(S)

J U D G M E N T

Mehta, J.

1. Leave granted.

2. The instant appeal by special leave is preferred on behalf of

the appellant for assailing the order dated 13

th October, 2023

passed by learned Single Judge of the High Court of Delhi whereby

the learned Single Judge dismissed the Criminal Miscellaneous

Case No. 7278 of 2023 filed by the appellant seeking the following

directions: -

2

"A. Declare the arrest of the Petitioner as illegal and in gross

violation of the fundamental rights of the Petitioner guaranteed

under Article 21 and 22 of the Constitution of India in relation

to FIR No. 224/2023 dated 17.08.2023 PS Special Cell, Lodhi

Road, Delhi Police;

B. Declare and set aside the Remand Order dated 04.10.2023

passed by the Ld. Special Judge, Patiala House Court as null

and void as the same being passed in complete violation of all

constitutional mandates including failure to consult and to be

defended by legal practitioner of his choice during the Remand

Proceedings, being violative of Petitioner's right guaranteed

under Article 22 of the Constitution of India.

C. Direct immediate release of the Petitioner from custody in

FIR No. 224/2023 dated 17.08.2023 PS Special Cell, Lodhi

Road, Delhi Police."

Brief Facts: -

3. The officers of the PS Special Cell, Lodhi Colony, New Delhi

carried out extensive raids at the residential and official premises

of the appellant and the company, namely, M/s. PPK Newsclick

Studio Pvt. Ltd.(“said company”) of which the appellant is the

Director in connection with FIR No. 224 of 2023 dated 17

th August,

2023 registered at PS Special Cell, Lodhi Colony, New Delhi for the

offences punishable under Sections 13, 16, 17, 18, 22C of the

Unlawful Activities(Prevention) Act, 1967(for short “UAPA”) read

with Section 153A , 120B of the Indian Penal Code,

1860(hereinafter being referred to as the ‘IPC’). During the course

of the search and seizure proceedings, numerous documents and

digital devices belonging to the appellant, the company and other

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employees of the company were seized. The appellant was arrested

in connection with the said FIR on 3

rd October, 2023 vide arrest

memo(Annexure P-7) prepared at PS Special Cell, Lodhi Colony,

New Delhi.

4. It is relevant to mention here that the said arrest memo is in

a computerised format and does not contain any column regarding

the ‘grounds of arrest’ of the appellant. This very issue is primarily

the bone of contention between the parties to the appeal.

5. The appellant was presented in the Court of Learned

Additional Sessions Judge-02, Patiala House Courts, New

Delhi(hereinafter being referred to as the ‘Remand Judge’) on 4

th

October, 2023, sometime before 6:00 a.m. which fact is manifested

from the remand order(Annexure P-1) placed on record of appeal

with I.A. No. 217857 of 2023. The appellant was remanded to

seven days police custody vide order dated 4

th October, 2023.

6. The proceedings of remand have been seriously criticized as

being manipulated by Shri Kapil Sibal, learned senior counsel for

the appellant and aspersions of subsequent insertions in the

remand order have been made. Hence, it would be apposite to

reproduce the remand order dated 4

th October, 2023 in pictorial

form so as to form a part of this judgment.

4

5

7. The appellant promptly questioned his arrest and the police

custody remand granted by the learned Remand Judge vide order

dated 4

th October, 2023 by preferring Criminal Miscellaneous Case

No. 7278 of 2023 in the High Court of Delhi which stands rejected

by the learned Single Judge of the High Court of Delhi vide

judgment dated 13

th October, 2023. The said order is subjected to

challenge in this appeal by special leave.

Submissions on behalf of the appellant: -

8. Shri Kapil Sibal, learned senior counsel representing the

appellant canvassed the following submissions in order to question

the proceedings of arrest and remand of the appellant: -

(i) That the FIR No. 224 of 2023(FIR in connection of which

appellant was arrested) is virtually nothing but a second

FIR on same facts because prior thereto, another FIR No.

116 of 2020 dated 26

th August, 2020 had been registered

by PS EOW, Delhi Police(“EOW FIR”) alleging violation of

Foreign Direct Investment(FDI) regulations and other laws

of the country by the appellant and the company, thereby

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causing loss to the exchequer. A copy of the said FIR was,

however, not provided to the appellant. By treating the

EOW FIR as disclosing predicate offences, the Directorate

of Enforcement(for short “ED”) registered an Enforcement

Case Information Report(for short ‘ECIR’) for the offences

punishable under Sections 3 and 4 of the Prevention of

Money Laundering Act, 2002(for short ‘PMLA’). The ED

carried out extensive search and seizure operations at

various places including the office of the company-M/s.

PPK Newsclick Studio Pvt. Ltd., of which the appellant is

the Director.

(ii) The company assailed the ECIR by filing Writ Petition(Crl.)

Nos. 1129 of 2021 and 1130 of 2021 wherein interim

protection against coercive steps was granted by High

Court of Delhi on 21

st June, 2021. The appellant was also

provided interim protection in an application seeking

anticipatory bail vide order dated 7

th July, 2021.

(iii) The FIR No. 224 of 2023 has been registered purely on

conjectures and surmises without there being any

substance in the allegations set out in the report. The

contents of the FIR which were provided to the appellant

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at a much later stage discloses a purely fictional story

without any fundamental facts or material warranting

registration of the FIR.

(iv) Admittedly, the copy of FIR No. 224 of 2023 was neither

made available in the public domain nor a copy thereof

supplied to the appellant until his arrest and remand

which is in complete violation of the fundamental Right to

Life and Personal Liberty enshrined in Articles 20, 21 and

22 of the Constitution of India.

(v) Shri Sibal pointed out that the learned Remand Judge,

vide order dated 5

th October, 2023, allowed the application

filed by the appellant seeking certified copy of the said FIR

which was provided to the learned counsel for the

appellant in the late evening on 5

th October, 2023, i.e., well

after the appellant had been remanded to police custody.

(vi) That the grounds of arrest were not informed to the

appellant either orally or in writing and that such action is

in gross violation of the constitutional mandate under

Article 22(1) of the Constitution of India and Section 50 of

the Code of Criminal Procedure, 1973(hereinafter being

referred to as the ‘CrPC’).

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(vii) Reliance was placed by the learned senior counsel on the

judgment of this Court in Pankaj Bansal v. Union of

India and Others

1 and it was contended that the mere

passing of successive remand orders would not be

sufficient to validate the initial arrest, if such arrest was

not in conformity with law. Learned senior counsel urged

that this Court in the case of Pankaj Bansal(supra)

interpreted the provision of Section 19(1) of PMLA which is

pari materia to the provisions contained in Section 43B(1)

of the UAPA. Thus, the said judgment fully applies to the

case of the appellant.

(viii) Shri Sibal referred to the observations made in the

judgment of Pankaj Bansal(supra) and urged that since

the grounds of arrest were not furnished to the appellant

at the time of his arrest and before remanding him to police

custody, the continued custody of the appellant is

rendered grossly illegal and a nullity in the eyes of law

because the same is hit by the mandate of Article 22(1) of

the Constitution of India.

1

2023 SCC OnLine SC 1244

9

(ix) Shri Sibal further urged that the view taken by a two-

Judge Bench of this Court in Ram Kishor Arora v.

Directorate of Enforcement

2 holding the judgment in

Pankaj Bansal(supra) to be prospective in operation

would also not come in the way of the appellant in seeking

the relief. He pointed out that the judgment in the case of

Pankaj Bansal(supra) was pronounced on 3

rd October,

2023 whereas the illegal remand order of the appellant was

passed on 4

th October, 2023 and hence, the law laid down

in the case of Pankaj Bansal(supra) is fully applicable to

the case of the appellant despite the interpretation given

in Ram Kishor Arora(supra).

(x) That the arrest of the appellant is in gross violation of the

provisions contained in Article 22 of the Constitution of

India, hence, the appellant is entitled to seek a direction

for quashment of the remand order and release from

custody forthwith.

(xi) That the action of the Investigating Officer in arresting and

in seeking remand of the appellant is not only mala fide

but also fraught with fraud of the highest order.

2

2023 SCC OnLine SC 1682

10

(xii) Referring to the remand order dated 4

th October, 2023, it

was contended that the appellant was kept confined

overnight by the Investigating Officer without conveying

the grounds of arrest to him. He was presented in the

Court of the learned Remand Judge on 4

th October, 2023

in the early morning without informing Shri Arshdeep

Khurana, the Advocate engaged on behalf of the appellant

who was admittedly in contact with the Investigating

Officer because he had attended the proceedings at the

Police Station Lodhi Colony, post the appellant’s arrest. In

order to clandestinely procure police custody remand of

the appellant, the Investigating Officer, presented the

appellant at the residence of learned Remand Judge before

6:00 a.m. by informing a remand Advocate Shri Umakant

Kataria who had never been engaged by the appellant to

plead his cause.

(xiii) Learned Remand Judge remanded the accused to police

custody at 6:00 a.m. sharp as is evident from the remand

order(supra). Shri Arshdeep Khurana, the appellant’s

Advocate was informed about the order granting remand

by a WhatsApp message at 7:07 a.m. but the same was an

11

exercise in futility because there was no possibility that the

learned Advocate could have reached the residence of the

learned Remand Judge in time to oppose the prayer for

remand.

(xiv) That, as a matter of fact, the remand application had

already been accepted at 6:00 a.m. which fact is

manifested from the time appended at the end of the

remand order(supra). The learned Remand Judge signed

the proceedings by recording the time as 6:00 a.m. Hence,

there is no escape from the conclusion that the remand

order was passed without supplying copy of the grounds

of arrest to the appellant or the Advocate engaged by him.

The appellant was intentionally deprived from information

about the grounds of his arrest and thereby he and his

Advocate were prevented from opposing the prayer of

police custody remand and from seeking bail.

(xv) He further urged that the stand taken by the respondent

that the grounds of arrest were conveyed to the learned

counsel for the appellant well before the learned Remand

Judge passed the remand order is unacceptable on the

face of the record because the time of passing the remand

12

order is clearly recorded in the order dated 4

th October,

2023 as 6:00 a.m. Admittedly, the grounds of arrest were

conveyed to Shri Arshdeep Khurana, Advocate for the

appellant well after 7:00 a.m. It was contended that the

noting made by the learned Remand Judge in the order

dated 4

th October, 2023 that the learned counsel for the

appellant was heard on the application for remand is a

subsequent insertion clearly visible from the remand

order. The fact of subsequent insertion of these lines is

fortified from the fact that the appellant had already been

remanded to police custody by the time the Advocate was

informed and the copy of the remand application

containing the purported grounds of arrest was

transmitted to him.

(xvi) That the foundational facts in the FIR No. 224 of 2023 are

almost identical to the allegations set out in the EOW FIR.

The appellant had been granted protection against arrest

by the High Court of Delhi in the EOW FIR. Owing to this

protection, the mala fide objective of the authorities in

putting the appellant behind bars was not being served

and, therefore, a new FIR No. 224 of 2023 with totally

13

cooked up allegations came to be registered and the

appellant was illegally deprived of his liberty without the

copy of the FIR been provided and without the grounds of

arrest being conveyed to the appellant.

9. On these grounds, Shri Sibal implored the Court to accept

the appeal, set aside the impugned orders and direct the release of

the appellant from custody in connection with the above FIR.

Submission on behalf of the respondent: -

10. Per contra, Shri Suryaprakash V. Raju, learned ASG,

appearing for the respondent vehemently and fervently opposed

the submissions advanced by the learned counsel for the appellant

and made the following pertinent submissions:-

(i) He urged that the judgment in the case of Pankaj

Bansal(supra) has been held to be prospective in operation by

this Court in the case of Ram Kishor Arora(supra).

(ii) The appellant was remanded to police custody on 4

th October,

2023 whereas the judgment in the case of Pankaj

Bansal(supra) was uploaded on the website of this Court in

the late hours of 4

th October, 2023 and hence, the arresting

officer could not be expected to ensure compliance of the

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directions given in the said judgment. He thus urged that the

alleged inaction of the Investigating Officer in furnishing the

grounds of arrest in writing to the appellant cannot be called

into question as the judgment in Pankaj Bansal(supra) was

uploaded and brought in public domain after the remand order

had been passed.

(iii) Without prejudice to the above, learned ASG urged that as per

the appellant’s version set out in the pleadings filed before the

High Court of Delhi, he was actually remanded to the police

custody after 7:00 a.m. With reference to these pleadings, Shri

Raju contended that the appellant cannot be heard to urge

that he was remanded to the police custody in an illegal

manner and without the grounds of arrest having been

conveyed to him in writing.

(iv) Learned ASG referred to the provisions contained in Articles

22(1) and 22(5) of the Constitution of India and urged that

there is no such mandate in either of the provisions that the

grounds of arrest or detention should be conveyed in writing

to the accused or the detenue, as the case may be.

(v) He urged that the right conferred upon the appellant by Article

22(1) of the Constitution of India to consult and to be defended

15

by a legal practitioner was complied with in letter and spirit

because the relative of the appellant, namely, Shri Rishabh

Bailey, was informed before producing the appellant before the

learned Remand Judge. Admittedly, Shri Rishabh Bailey had

intimated the appellant’s Advocate, Shri Arshdeep Khurana

regarding the proposed proceedings of police custody remand

of the appellant.

(vi) He urged that the Advocate transmitted a written objection

against the prayer for police custody remand over WhatsApp

through the Head Constable Rajendra Singh and the learned

Remand Judge has taken note of the said objection opposing

remand in the remand order dated 4

th October, 2023 and thus

it would be futile to argue that the order granting remand is

illegal in any manner.

(vii)Learned ASG further contended that now the investigation

has been completed and charge sheet has also already been

filed and, thus, the illegality/irregularity, if any, in the arrest

of the appellant and the grant of initial police custody remand

stands cured and hence, the appellant cannot claim to be

prejudiced by the same.

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(viii)He vehemently urged that there are significant differences in

the language employed in Section 19 of the PMLA and Section

43A and 43B of the UAPA and, thus, the law as laid down by

this Court in Pankaj Bansal(supra) does not come to the aid

of the appellant in laying challenge to the remand order.

(ix) Learned ASG further urged that there is a presumption

regarding the correctness of acts performed in discharge of

judicial functions and hence, the noting recorded in the

remand order dated 4

th October, 2023 that the Advocate for

the appellant had been heard on the remand application and

that the grounds of arrest had been conveyed to the appellant

cannot be questioned or doubted. He thus implored the Court

to dismiss the appeal and affirm the order passed by the High

Court of Delhi.

Rejoinder on behalf of learned counsel for the appellant: -

11. Shri Sibal, learned senior counsel for the appellant submitted

that the argument advanced by learned ASG that the provisions

contained in Section 19 of the PMLA and Section 43A and 43B of

the UAPA operate in different spheres, is misconceived. He urged

17

that language of both the provisions is pari materia and hence, the

law laid down in Pankaj Bansal(supra) fully covers the

controversy at hand.

12. Shri Sibal emphasised that on a plain viewing of the order

dated 4

th October, 2023, it is clear that the lines indicating the

sending of the copy of the remand application to the learned

counsel for the appellant and the opportunity of hearing provided

to the Advocate through telephone call have been subsequently

inserted in the order. He thus urged that the plea advanced by

Shri Raju, learned ASG that there is a presumption regarding the

correctness of judicial proceedings cannot be accepted as a gospel

truth in the peculiar facts of the case at hand. He contended that

applying the same principle to the remand order dated 4

th October,

2023 is counter productive to the stand taken by learned ASG

inasmuch as, the order records the time of passing as 6:00 a.m.

whereas the Advocate was admittedly informed after 7:00 a.m.

Thus, there was no possibility of the remand application being sent

to the Advocate or he being heard before passing of the remand

order. He, thus, reiterated his submissions and sought acceptance

of the appeal.

18

Discussion and conclusion: -

13. We have given our thoughtful considerations to the

submissions advanced at bar and have gone through the material

placed on record.

14. Since, learned ASG has advanced a fervent contention

regarding application of ratio of Pankaj Bansal(supra) urging that

there is an inherent difference between the provisions contained in

Section 19 of the PMLA and Section 43A and 43B of the UAPA, it

would first be apposite for us to address the said submission.

15. In the case of Pankaj Bansal(supra), this Court after an

elaborate consideration of the provisions contained in PMLA, CrPC

and the constitutional mandate as provided under Article 22 held

as below: -

“32. In this regard, we may note that Article 22(1) of the

Constitution provides, inter alia, that no person who is

arrested shall be detained in custody without being

informed, as soon as may be, of the grounds for such arrest.

This being the fundamental right guaranteed to the

arrested person, the mode of conveying information of the

grounds of arrest must necessarily be meaningful so as to

serve the intended purpose. It may be noted that Section 45

of the Act of 2002 enables the person arrested under Section

19 thereof to seek release on bail but it postulates that unless

the twin conditions prescribed thereunder are satisfied, such a

person would not be entitled to g rant of bail. The twin

conditions set out in the provision are that, firstly, the Court

must be satisfied, after giving an opportunity to the public

prosecutor to oppose the application for release, that there are

reasonable grounds to believe that the arrested person is not

19

guilty of the offence and, secondly, that he is not likely to

commit any offence while on bail. To meet this requirement, it

would be essential for the arrested person to be aware of the

grounds on which the authorized officer arrested him/her

under Section 19 and the basis for the officer's ‘reason to

believe’ that he/she is guilty of an offence punishable under the

Act of 2002. It is only if the arrested person has knowledge of

these facts that he/she would be in a position to plead and

prove before the Special Court that there are grounds to believe

that he/she is not guilty of such offence, so as to avail the relief

of bail. Therefore, communication of the grounds of arrest,

as mandated by Article 22(1) of the Constitution and

Section 19 of the Act of 2002, is meant to serve this higher

purpose and must be given due importance.

36. That being so, there is no valid reason as to why a copy

of such written grounds of arrest should not be furnished

to the arrested person as a matter of course and without

exception. There are two primary reasons as to why this

would be the advisable course of action to be followed as a

matter of principle. Firstly, in the event such grounds of

arrest are orally read out to the arrested person or read by

such person with nothing further and this fact is disputed

in a given case, it may boil down to the word of the arrested

person against the word of the authorized officer as to

whether or not there is due and proper compliance in this

regard. In the case on hand, that is the situation insofar as

Basant Bansal is concerned. Though the ED claims that

witnesses were present and certified that the grounds of arrest

were read out and explained to him in Hindi, that is neither

here nor there as he did not sign the document. Non -

compliance in this regard would entail release of the arrested

person straightaway, as held in V. Senthil Balaji (supra). Such

a precarious situation is easily avoided and the consequence

thereof can be obviated very simply by furnishing the written

grounds of arrest, as recorded by the authorized officer in terms

of Section 19(1) of the Act of 2002, to the arrested person under

due acknowledgment, instead of leaving it to the debatable ipse

dixit of the authorized officer.

37. The second reason as to why this would be the proper

course to adopt is the constitutional objective underlying

such information being given to the arrested person.

Conveyance of this information is not only to apprise the

arrested person of why he/she is being arrested but also to

enable such person to seek legal counsel and, thereafter,

present a case before the Court under Section 45 to seek

release on bail, if he/she so chooses. In this regard, the

grounds of arrest in V. Senthil Balaji (supra) are placed on

record and we find that the same run into as many as six pages.

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The grounds of arrest recorded in the case on hand in relation

to Pankaj Bansal and Basant Bansal have not been produced

before this Court, but it was contended that they were produced

at the time of remand. However, as already noted earlier, this

did not serve the intended purpose. Further, in the event their

grounds of arrest were equally voluminous, it would be well-

nigh impossible for either Pankaj Bansal or Basant Bansal to

record and remember all that they had read or heard being read

out for future recall so as to avail legal remedies. More so, as a

person who has just been arrested would not be in a calm and

collected frame of mind and may be utterly incapable of

remembering the contents of the grounds of arrest read by or

read out to him/her. The very purpose of this constitutional

and statutory protection would be rendered nugatory by

permitting the authorities concerned to merely read out or

permit reading of the grounds of arrest, irrespective of their

length and detail, and claim due compli ance with the

constitutional requirement under Article 22(1) and the

statutory mandate under Section 19(1) of the Act of 2002 .

38. We may also note that the grounds of arrest recorded by the

authorized officer, in terms of Section 19(1) of the Act of 2002,

would be personal to the person who is arrested and there

should, ordinarily, be no risk of sensitive material being

divulged therefrom, compromising the sanctity and integrity of

the investigation. In the event any such sensitive material finds

mention in such grounds of arrest recorded by the authorized

officer, it would always be open to him to redact such sensitive

portions in the document and furnish the edited copy of the

grounds of arrest to the arrested person, so as to safeguard the

sanctity of the investigation.

39. On the above analysis, to give true meaning and

purpose to the constitutional and the statutory mandate of

Section 19(1) of the Act of 2002 of informing the arrested

person of the grounds of arrest, we hold that it would be

necessary, henceforth, that a copy of such written grounds

of arrest is furnished to the arrested person as a matter of

course and without exception. The decisions of the Delhi High

Court in Moin Akhtar Qureshi (supra) and the Bombay High

Court in Chhagan Chandrakant Bhujbal (supra), which hold to

the contrary, do not lay down the correct law. In the case on

hand, the admitted position is that the ED's Investigating

Officer merely read out or permitted reading of the grounds

of arrest of the appellants and left it at that, which is also

disputed by the appellants. As this form of communication

is not found to be adequate to fulfil compliance with the

mandate of Article 22(1) of the Constitution and Section

19(1) of the Act of 2002, we have no hesitation in holding

that their arrest was not in keeping with the provisions of

21

Section 19(1) of the Act of 2002 . Further, as already

noted supra, the clandestine conduct of the ED in proceeding

against the appellants, by recording the second ECIR

immediately after they secured interim protection in relation to

the first ECIR, does not commend acceptance as it reeks of

arbitrary exercise of power. In effect, the arrest of the appellants

and, in consequence, their remand to the custody of the ED

and, thereafter, to judicial custody, cannot be sustained.”

(emphasis supplied)

16. Section 19 of the PMLA and Sections 43A, 43B and 43C of

the UAPA are reproduced hereunder for the sake of ready

reference: -

Section 19 of the PMLA

“19. Power to arrest.—(1) If the Director, Deputy Director,

Assistant Director or any other officer authorised in this behalf

by the Central Government by general or special order, has on

the basis of material in his possession, reason to believe (the

reason for such belief to be recorded in writing) that any

person has been guilty of an offence punishable under this

Act, he may arrest such person and shall, as soon as may be,

inform him of the grounds for such arrest.

(2) The Director, Deputy Director, Assistant Director or any

other officer shall, immediately after arrest of such person

under sub-section (1), forward a copy of the order along with

the material in his possession, referred to in that sub-section,

to the Adjudicating Authority in a sealed envelope, in the

manner, as may be prescribed and such Adjudicating

Authority shall keep such order and material for such period,

as may be prescribed.

(3) Every person arrested under sub-section (1) shall, within

twenty-four hours, be taken to a [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

[Special Court or] Magistrate’s Court.”

22

Sections 43A, 43B and 43C of the UAPA

“43A. Power to arrest, search, etc .—Any officer of the

Designated Authority empowered in this behalf, by general or

special order of the Central Government or the State

Government, as the case may be, knowing of a design to commit

any offence under this Act or has reason to believe from

personal knowledge or information given by any person and

taken in writing that any person has committed an offence

punishable under this Act or from any document, article or any

other thing which may furnish evidence of the commission of

such offence or from any illegally acquired property or any

document or other article which may furnish evidence of

holding any illegally acquired property which is liable for

seizure or freezing or forfeiture under this Chapter is kept or

concealed in any building, conveyance or place, may authorise

any officer subordinate to him to arrest such a person or search

such building, conveyance or place whether by day or by night

or himself arrest such a person or search a such building,

conveyance or place.

43B. Procedure of arrest, seizure, etc. —(1) Any officer

arresting a person under section 43A shall, as soon as may be,

inform him of the grounds for such arrest.

(2) Every person arrested and article seized under section 43A

shall be forwarded without unnecessary delay to the officer-in-

charge of the nearest police station.

(3) The authority or officer to whom any person or article is

forwarded under sub-section (2) shall, with all convenient

dispatch, take such measures as may be necessary in

accordance with the provisions of the Code.

43C. Application of provisions of Code. —The provisions of

the Code shall apply, insofar as they are not inconsistent with

the provisions of this Act, to all arrests, searches and seizures

made under this Act.”

17. Upon a careful perusal of the statutory provisions(reproduced

supra), we find that there is no significant difference in the

language employed in Section 19(1) of the PMLA and Section

23

43B(1) of the UAPA which can persuade us to take a view that the

interpretation of the phrase ‘inform him of the grounds for such

arrest’ made by this Court in the case of Pankaj Bansal(supra)

should not be applied to an accused arrested under the provisions

of the UAPA.

18. We find that the provision regarding the communication of

the grounds of arrest to a person arrested contained in Section

43B(1) of the UAPA is verbatim the same as that in Section 19(1)

of the PMLA. The contention advanced by learned ASG that there

are some variations in the overall provisions contained in Section

19 of the PMLA and Section 43A and 43B of the UAPA would not

have any impact on the statutory mandate requiring the arresting

officer to inform the grounds of arrest to the person arrested under

Section 43B(1) of the UAPA at the earliest because as stated above,

the requirement to communicate the grounds of arrest is the same

in both the statutes. As a matter of fact, both the provisions find

their source in the constitutional safeguard provided under Article

22(1) of the Constitution of India. Hence, applying the golden rules

of interpretation, the provisions which lay down a very important

constitutional safeguard to a person arrested on charges of

24

committing an offence either under the PMLA or under the UAPA,

have to be uniformly construed and applied.

19. We may note that the modified application of Section 167

CrPC is also common to both the statutes. Thus, we have no

hesitation in holding that the interpretation of statutory mandate

laid down by this Court in the case of Pankaj Bansal(supra) on

the aspect of informing the arrested person the grounds of arrest

in writing has to be applied pari passu to a person arrested in a

case registered under the provisions of the UAPA.

20. Resultantly, there is no doubt in the mind of the Court that

any person arrested for allegation of commission of offences under

the provisions of UAPA or for that matter any other offence(s) has

a fundamental and a statutory right to be informed about the

grounds of arrest in writing and a copy of such written grounds of

arrest have to be furnished to the arrested person as a matter of

course and without exception at the earliest. The purpose of

informing to the arrested person the grounds of arrest is salutary

and sacrosanct inasmuch as, this information would be the only

effective means for the arrested person to consult his Advocate;

oppose the police custody remand and to seek bail. Any other

interpretation would tantamount to diluting the sanctity of the

25

fundamental right guaranteed under Article 22(1) of the

Constitution of India.

21. The Right to Life and Personal Liberty is the most sacrosanct

fundamental right guaranteed under Articles 20, 21 and 22 of the

Constitution of India. Any attempt to encroach upon this

fundamental right has been frowned upon by this Court in a

catena of decisions. In this regard, we may refer to following

observations made by this Court in the case of Roy V.D. v. State

of Kerala

3:-

“7. The life and liberty of an individual is so sacrosanct that it

cannot be allowed to be interfered with except under the

authority of law. It is a principle which has been recognised and

applied in all civilised countries. In our Constitution Article 21

guarantees protection of life and personal liberty not only to

citizens of India but also to aliens.”

Thus, any attempt to violate such fundamental right,

guaranteed by Articles, 20, 21 and 22 of the Constitution of India,

would have to be dealt with strictly.

22. The right to be informed about the grounds of arrest flows

from Article 22(1) of the Constitution of India and any infringement

of this fundamental right would vitiate the process of arrest and

remand. Mere fact that a charge sheet has been filed in the matter,

would not validate the illegality and the unconstitutionality

3

(2000) 8 SCC 590

26

committed at the time of arresting the accused and the grant of

initial police custody remand to the accused.

23. Learned ASG referred to the language of Article 22(5) of the

Constitution of India and urged that even in a case of preventive

detention, the Constitutional scheme does not require that the

grounds on which the order of detention has been passed should

be communicated to the detenue in writing. Ex facie, we are not

impressed with the said submission.

24. The contention advanced by learned ASG based on the

language of Article 22(5) of the Constitution of India persuaded us

to delve deeper on the issue as to whether it is mandatory to

communicate the grounds of arrest or detention in writing to the

accused or the detenue, as the case may be, even though the

constitutional mandate under Articles 22(1) and 22(5) of the

Constitution of India does not explicitly require that the grounds

should be communicated in writing.

25. A Constitution Bench of this Court examined in detail the

scheme of Article 22(5) of the Constitution of India in the case of

Harikisan v. State of Maharashtra and Others

4 and held that

the communication of the grounds of detention to the detenue in

4

1962 SCC OnLine SC 117

27

writing and in a language which he understands is imperative and

essential to provide an opportunity to detenue of making an

effective representation against the detention and in case, such

communication is not made, the order of detention would stand

vitiated as the guarantee under Article 22(5) of the Constitution

was violated. The relevant para is extracted hereinbelow:

“ 7. ….. clause (5) of Article 22 requires that the grounds of his

detention should be made available to the detenue as soon as

may be, and that the earliest opportunity of making a

representation against the Order should also be afforded to

him. In order that the detenue should have that

opportunity, it is not sufficient that he has been physically

delivered the means of knowledge with which to make his

representation. In order that the detenue should be in a

position effectively to make his representation against the

Order, he should have knowledge of the grounds of

detention, which are in the nature of the charge against

him setting out the kinds of prejudicial acts which the

authorities attribute to him. Communication, in this

context, must, therefore, mean impa rting to the detenue

sufficient knowledge of all the grounds on which the Order

of Detention is based. In this case the grounds are several,

and are based on numerous speeches said to have been

made by the appellant himself on different occasions and

different dates. Naturally, therefore, any oral translation or

explanation given by the police officer serving those on the

detenue would not amount to communication, in this

context, must mean bringing home to the detenue effective

knowledge of the facts and circumstances on which the

Order of Detention is based.

(emphasis supplied)

26. Further, this Court in the case of Lallubhai Jogibhai Patel

v. Union of India and Ors.

5, laid down that the grounds of

5

(1981) 2 SCC 427

28

detention must be communicated to the detenue in writing in a

language which he understands and if the grounds are only

verbally explained, the constitutional mandate of Article 22(5) is

infringed. The relevant para is extracted hereunder: -

“20. …. “Communicate” is a strong word. It means that

sufficient knowledge of the basic facts constituting the

“grounds” should be imparted effectively and fully to the detenu

in writing in a language which he understands. The whole

purpose of communicating the “ground” to the detenu is to

enable him to make a purposeful and effective representation.

If the “grounds” are only verbally explained to the detenu

and nothing in writing is left with him, in a language which

he understands, then that purpose is not served , and the

constitutional mandate in Article 22(5) is infringed…..”

(emphasis supplied)

27. From a holistic reading of various judgments pertaining to

the law of preventive detention including the Constitution Bench

decision of this Court in Harikisan(supra), wherein, the

provisions of Article 22(5) of the Constitution of India have been

interpreted, we find that it has been the consistent view of this

Court that the grounds on which the liberty of a citizen is curtailed,

must be communicated in writing so as to enable him to seek

remedial measures against the deprivation of liberty.

28. Thus, there is no hesitation in the mind of this Court that the

submission of learned ASG that in a case of preventive detention,

29

the grounds of detention need not be provided to a detenue in

writing is ex facie untenable in eyes of law.

29. The language used in Article 22(1) and Article 22(5) of the

Constitution of India regarding the communication of the grounds

is exactly the identical. Neither of the constitutional provisions

require that the ‘grounds’ of “arrest” or “detention”, as the case

may be, must be communicated in writing. Thus, interpretation to

this important facet of the fundamental right as made by the

Constitution Bench while examining the scope of Article 22(5) of

the Constitution of India would ipso facto apply to Article 22(1) of

the Constitution of India insofar the requirement to communicate

the grounds of arrest is concerned.

30. Hence, we have no hesitation in reiterating that the

requirement to communicate the grounds of arrest or the grounds

of detention in writing to a person arrested in connection with an

offence or a person placed under preventive detention as provided

under Articles 22(1) and 22(5) of the Constitution of India is

sacrosanct and cannot be breached under any situation. Non-

compliance of this constitutional requirement and statutory

mandate would lead to the custody or the detention being rendered

illegal, as the case may be.

30

31. Furthermore, the provisions of Article 22(1) have already

been interpreted by this Court in Pankaj Bansal(supra) laying

down beyond the pale of doubt that the grounds of arrest must be

communicated in writing to the person arrested of an offence at

the earliest. Hence, the fervent plea of learned ASG that there was

no requirement under law to communicate the grounds of arrest

in writing to the accused appellant is noted to be rejected.

32. Now, coming to the facts of the case at hand. Indisputably,

FIR No. 224 of 2023 came to be registered on 17

th August, 2023.

Copy of the FIR was never brought in public domain as the same

was not uploaded on the website by the Investigating Agency.

Admittedly, the copy of the FIR was not provided to the appellant

despite an application having been made in this regard on his

behalf till after the order of police custody remand was passed by

the learned Remand Judge.

33. The copy of the FIR was provided to Shri Arshdeep Khurana,

learned Advocate representing the accused for the first time on 5

th

October, 2023 and hence, till the time of being deprived of liberty,

no communication had been made to the appellant regarding the

grounds on which he had been arrested.

31

34. The accused was arrested on 3

rd October, 2023 at 5:45 p.m.

as per the arrest memo(Annexure P-7). As per Section 43C of the

UAPA, the provisions of CrPC shall apply to all arrests, search and

seizures made under the UAPA insofar as they are not inconsistent

with the provisions of this Act. As per Section 57 CrPC read with

Section 167(1) CrPC, the appellant was required to be produced

before the concerned Magistrate within twenty-four hours of his

arrest. The Investigating Officer, therefore, had a clear window till

5:44 p.m. on 4

th October, 2023 for producing the appellant before

the Magistrate concerned and to seek his police custody remand,

if so required. There is no dispute that Shri Arshdeep Khurana,

learned Advocate, engaged on behalf of the appellant had

presented himself at the police station on 3

rd October, 2023 after

the appellant was arrested and the mobile number of the Advocate

was available with the Investigating Officer. Inspite thereof, the

appellant was presented before the learned Remand Judge at his

residence sometime before 6:00 a.m. on 4

th October, 2023. A

remand Advocate, namely, Shri Umakant Kataria was kept present

in the Court purportedly to provide legal assistance to the

appellant as required under Article 22(1) of the Constitution of

India. Apparently, this entire exercise was done in a clandestine

32

manner and was nothing but a blatant attempt to circumvent the

due process of law; to confine the accused to police custody

without informing him the grounds on which he has been arrested;

deprive the accused of the opportunity to avail the services of the

legal practitioner of his choice so as to oppose the prayer for police

custody remand, seek bail and also to mislead the Court. The

accused having engaged an Advocate to defend himself, there was

no rhyme or reason as to why, information about the proposed

remand application was not sent in advance to the Advocate

engaged by the appellant.

35. It is apparent that the appellant had objected to the

appearance of the remand counsel before the learned Remand

Judge and this is the reason, the Investigating Officer undertook a

charade of informing of the Advocate engaged by the appellant on

mobile. The learned Remand Judge recorded the presence of Shri

Arshdeep Khurana, Advocate, mentioning that he had been

informed and heard on the remand application through telephone

call. The initial information about the accused appellant being

presented before the learned Remand Judge was sent by the

arresting officer to the appellant’s relative Shri Rishab Bailey at

around 6:46 a.m. and he, in turn, informed the Advocate Shri

33

Arshdeep Khurana around 7:00 a.m. These facts are manifested

from perusal of the call logs presented for the perusal of the Court.

Thus, by the time, the Advocate engaged by the accused appellant

had been informed, the order of remand had already been passed.

Unquestionably, till that time, the grounds of arrest had not been

conveyed to the appellant in writing.

36. The learned ASG had argued that the grounds of arrest were

set out in the remand application which was transmitted through

WhatsApp to Advocate Shri Arshdeep Khurana. However, the fact

remains that the remand application was transmitted to the

Advocate Shri Arshdeep Khurana after the remand had been

granted by the learned Remand Judge which was at 6:00 a.m. as

per the recording made in the remand order(reproduced supra).

The contention of the learned ASG that there is variance in time of

passing of the remand order as per the pleadings made on behalf

of the accused appellant before the High Court of Delhi does not

impress us in view of the time recorded in the remand order.

37. Learned Single Judge of the High Court of Delhi held at para

No. 31 of the impugned order that the respondent had taken a

categoric stand that the grounds of arrest were informed to the

appellant orally and the same were also conveyed in writing as per

34

the details set out in the memo of arrest. However, learned ASG

fairly did not advance any such argument based on the arrest

memo.

38. The interpretation given by the learned Single Judge that the

grounds of arrest were conveyed to the accused in writing vide the

arrest memo is unacceptable on the face of the record because the

arrest memo does not indicate the grounds of arrest being

incorporated in the said document. Column No. 9 of the arrest

memo(Annexure P-7) which is being reproduced hereinbelow

simply sets out the ‘reasons for arrest’ which are formal in nature

and can be generally attributed to any person arrested on

accusation of an offence whereas the ‘grounds of arrest’ would be

personal in nature and specific to the person arrested.

“9. Reason for arrest

a. Prevent accused person from committing any further

offence.

b. For proper investigation of the offence.

c. To prevent the accused person from causing the evidence

of the offence to disappear or tempering with such evidence in

any manner.

d. To prevent such person from making any inducement

threat or promise to any person acquainted the facts of the case

so as to dissuade him from disclosing such facts to the Court

or to the Police officer.

e. As unless such person is arrested, his presence in the

Court whenever required cannot be ensured.”

35

39. The remand order dated 4

th October, 2023(reproduced supra)

records that the copy of the remand application had been sent to

the learned Advocate engaged by the accused appellant through

shriApp. A bare perusal of the remand order is enough to satisfy

us that these two lines were subsequently inserted in the order

because the script in which these two lines were written is much

finer as compared to the remaining part of the order and moreover,

these two lines give a clear indication of subsequent insertion. It

is quite possible that the learned Remand Judge may have heard

the learned counsel for the appellant after signing the remand

order and thus, these lines were inserted later without intending

any harm or malintention but the fact remains that the order of

remand had already been passed at 6 :00 a.m. and hence, the

subsequent opportunity of hearing, if any, provided to the counsel

was nothing but an exercise in futility.

40. Learned ASG had argued that the copy of the remand

application forwarded over WhatsApp to the learned counsel for

the accused appellant gives a complete picture about the grounds

of arrest. We feel that any comment on the contents of the remand

application and whether the same actually conveyed intelligible

grounds of arrest to the accused or whether the same are so vague

36

that it would be impossible to understand, may prejudice the trial

of the case.

41. We may, however, briefly mention that the grounds of arrest

as conveyed to the Advocate are more or less a narration of facts

picked up from the FIR which in itself does not indicate any

particular incident or event which gave rise to the alleged offences.

However, the law is well settled that the FIR is not an

encyclopaedia and is registered just to set the process of criminal

justice in motion. The Investigating Officer has the power to

investigate the matter and collect all relevant material which would

form the basis of filing of charge sheet in the Court concerned.

42. Extensive arguments were advanced by Shri Sibal , with

reference to the stipulations made in Sections 13, 16, 17, 18, 22C

of the UAPA in order to contend that even if the FIR and the

grounds set out in the remand application are taken to be true on

the face of the record, apparently, the same convey just a fictional

web spun around conjectures and surmises. It was contended

that though a reference is made in the FIR that the appellant and

one Neville Roy Singham, a foreign national were found to be

discussing how to create a map of India without Kashmir and to

show Arunachal Pradesh as a disputed area but the fact remains

37

that no such map was prepared or published or was found in

possession of the appellant or on his devices till the date of his

arrest.

43. Shri Sibal had also argued that the appellant was arrested

without any indication as to how he was connected with the alleged

incorrect map of India. He also urged that the FIR refers to

farmers’ agitation without justifying as to how the appellant was

connected with those incidents. He contended that not a single

incident is mentioned in the FIR or the remand application which

can give rise to the offences alleged and that the FIR was registered

without any plausible reason or basis just to victimise the

appellant.

44. We do not feel persuaded to examine these aspects at this

stage because the same would require entering into the merits of

the case. This would be within the domain of the Court examining

the matter after the filing of the charge sheet. The core issue in

this appeal is regarding the illegality of the process whereby the

appellant was arrested and remanded to police custody which does

not require examining the merits of the case.

45. It was the fervent contention of learned ASG that in the case

of Ram Kishor Arora(supra), a two-Judge Bench of this Court

38

interpreted the judgment in the case of Pankaj Bansal(supra) to

be having a prospective effect and thus the ratio of Pankaj

Bansal(supra) cannot come to the appellant’s aid. Indisputably,

the appellant herein was remanded to police custody on 4

th

October, 2023 whereas the judgment in the case of Pankaj

Bansal(supra) was delivered on 3

rd October, 2023. Merely on a

conjectural submission regarding the late uploading of the

judgment, learned ASG cannot be permitted to argue that the ratio

of Pankaj Bansal(supra) would not apply to the present case.

Hence, the plea of Shri Raju, learned ASG that the judgment in

Pankaj Bansal(supra) would not apply to the proceedings of

remand made on 4

th October, 2023 is misconceived.

46. We are of the firm opinion that once this Court has

interpreted the provisions of the statute in context to the

constitutional scheme and has laid down that the grounds of

arrest have to be conveyed to the accused in writing expeditiously,

the said ratio becomes the law of the land binding on all the Courts

in the country by virtue of Article 141 of the Constitution of India.

47. Now, coming to the aspect as to whether the grounds of arrest

were actually conveyed to the appellant in writing before he was

remanded to the custody of the Investigating Officer.

39

48. We have carefully perused the arrest memo(Annexure P-7)

and find that the same nowhere conveys the grounds on which the

accused was being arrested. The arrest memo is simply a proforma

indicating the formal ‘reasons’ for which the accused was being

arrested.

49. It may be reiterated at the cost of repetition that there is a

significant difference in the phrase ‘reasons for arrest’ and

‘grounds of arrest’. The ‘reasons for arrest’ as indicated in the

arrest memo are purely formal parameters, viz., to prevent the

accused person from committing any further offence; for proper

investigation of the offence; to prevent the accused person from

causing the evidence of the offence to disappear or tempering with

such evidence in any manner; to prevent the arrested person for

making inducement, threat or promise to any person acquainted

with the facts of the case so as to dissuade him from disclosing

such facts to the Court or to the Investigating Officer. These

reasons would commonly apply to any person arrested on charge

of a crime whereas the ‘grounds of arrest’ would be required to

contain all such details in hand of the Investigating Officer which

necessitated the arrest of the accused. Simultaneously, the

grounds of arrest informed in writing must convey to the arrested

40

accused all basic facts on which he was being arrested so as to

provide him an opportunity of defending himself against custodial

remand and to seek bail. Thus, the ‘grounds of arrest’ would

invariably be personal to the accused and cannot be equated with

the ‘reasons of arrest’ which are general in nature.

50. From the detailed analysis made above, there is no hesitation

in the mind of the Court to reach to a conclusion that the copy of

the remand application in the purported exercise of

communication of the grounds of arrest in writing was not

provided to the accused appellant or his counsel before passing of

the order of remand dated 4

th October, 2023 which vitiates the

arrest and subsequent remand of the appellant.

51. As a result, the appellant is entitled to a direction for release

from custody by applying the ratio of the judgment rendered by

this Court in the case of Pankaj Bansal(supra).

52. Accordingly, the arrest of the appellant followed by remand

order dated 4

th October, 2023 and so also the impugned order

passed by the High Court of Delhi dated 13

th October, 2023 are

hereby declared to be invalid in the eyes of law and are quashed

and set aside.

41

53. Though we would have been persuaded to direct the release

of the appellant without requiring him to furnish bonds or security

but since the charge sheet has been filed, we feel it appropriate to

direct that the appellant shall be released from custody on

furnishing bail and bonds to the satisfaction of the trial Court.

54. We make it abundantly clear that none of the observations

made above shall be treated as a comment on the merits of the

case.

55. The appeal is allowed in these terms.

56. Pending application(s), if any, shall stand disposed of.

…………………………..J.

(B.R. GAVAI)

.…….……………………J.

(SANDEEP MEHTA)

New Delhi;

May 15, 2024

42