Use PMLA judiciously, don't lose leverage by making early arrests—ASG Raju advises ED officers

The Print

02-05-2025

ASG Raju made these remarks while delivering a keynote address on foundation day of the ED Thursday, while sharing the stage with Union Minister Pankaj Chaudhary, ED Director Rahul Navin, and two special directors of the agency. As the law officer of the Union government, Raju represents the ED in PMLA cases in the Supreme Court and high courts across the country.
Raju said that early arrests prevent the possibility of unearthing evidence crucial to investigation. With early arrests, he added, investigators lose leverage as the conduct of the accused changes, with the fear of arrest no longer being a factor.
New Delhi: Additional Solicitor General S. V. Raju has urged Enforcement Directorate (ED) officers to apply the Prevention of Money Laundering Act (PMLA) judiciously, adding that arrests should be made at a later stage, and not at a nascent point of investigation.
'Arrest is very crucial for investigation. Many times it is the threat of arrest that makes people disclose so many things…After their arrest, their conduct changes…Before arrest, it's better if the person under investigation speaks out and some evidence comes forth,' Raju told a gathering of hundreds of ED officers at the Bharat Mandapam.
'So what I suggest is this: you must use your power to arrest not liberally but sparingly and you must use it at a very late stage, maybe not a very late stage, but at a stage which is not the early stage or a nascent stage,' he further said.
Raju said investigators must also refrain from making early arrests when they don't have substantial grounds to do so, which is rebuked by the courts. 'If you arrest a person when your investigation is not over, you can't file a complaint within 60 days. If you don't file a complaint within 60 days, the person gets default bail. The person may have been the worst of the offenders but because you arrested him early you are not in position to complete the investigation and therefore he gets the default bail,' he argued.
He also reminded the ED officers that statements recorded by investigating officers while an accused is in custody is not admissible as evidence, contrary to statements recorded during questioning. He cited Section 50 of the PMLA, which allows authorities to summon individuals for questioning in money laundering investigations.
'Then another thing is early arrest also defeats the provisions of Section 50 of the PMLA Act. Statements recorded under Section 50 can be admissible in evidence, whereas statements recorded by regular police agencies are not admissible in evidence, courts of law can't look at it. Therefore material evidence can be gathered when you interrogate a person, when the ED interrogates a person and they get information. But if a person is arrested, the Section 50 statements become vulnerable. It is no longer evidence, so you have to obtain a Section 50 statement before arrest,' Raju said.
'Don't be hasty in arresting people. Take your time. Get the evidence, take the statement and then arrest them. That's my second suggestion to the ED officers present here,' he added.
'Hawala operators should be made reporting authorities'
Among other suggestions, the ASG also pointed out ways to better apply Section 70 of the PMLA, which deals with money laundering offences committed by companies. Companies have been defined as a group of people by the agency in the past while imposing this section in its prosecution charge sheet.
Under this provision, ED has the power to charge individuals responsible for the conduct of a company during the period of money laundering.
However, Raju emphasised that these allegations should be 'crisp, clear and specific'.
'The Supreme Court has quashed many cases because there were no allegations in the complaint, saying that you are responsible for the conduct of the business of the company at the relevant time. Merely saying you are a director is not sufficient. You must specify why he is responsible for the conduct of the business at the time the contravention took place,' he added.
Raju also argued for an amendment in the PMLA so hawala operators can be made 'reporting authorities', meaning they will be mandated to provide timely inputs on money laundering and flow of funds outside of India to the ED.
'My suggestion is that they must be made by reporting authorities. Their responsibility is to identify and verify their clients. They must maintain records. If they are made reporting authority, they will come within four corners of the PMLA and they will be required to do many things such as maintaining records of their clients and hence it will be easier not only to detect but also to prevent,' said the ASG.
(Edited by Gitanjali Das)
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