Whether Requirement Of Serving Grounds Of Arrest In Writing Under UAPA Come Into Effect From Date Of Pankaj Bansal Judgment? Delhi High Court Explains
The Delhi High Court observed that the requirement of serving grounds of arrest in writing is compulsory and unquestionable regardless of whether an arrest is made under PMLA or UAPA.
Justice Anup Jairam Bhambhani, Delhi High Court
The Delhi High Court has explained whether the Constitutional mandate of serving grounds of arrest in writing to an arrestee under the Unlawful Activities (Prevention) Act, 1967 (UAPA) come into effect from the date of the Supreme Court verdict in Pankaj Bansal v. Union of India & Ors. (2023) or in Prabir Purkayastha v. State (NCT of Delhi) (2024).
The Court was deciding a Writ Petition filed by the accused persons, challenging their arrest by the National Investigation Agency (NIA) on an FIR registered under Sections 120-B, 121-A, and 122 of the Indian Penal Code (IPC) and Sections 18, 18-B, and 39 of UAPA.
A Single Bench of Justice Anup Jairam Bhambhani observed, “… it must be appreciated that the law in relation to arrests (in the context of the PMLA) declared by the Supreme Court in Pankaj Bansal was held by them to specifically apply “henceforth”, meaning thereby that the interpretation of the law in that case was to be applied prospectively. But in Prabir Purkayastha the Supreme Court has made no such observation in relation to arrests under the UAPA and other criminal offences. As a result, the ratio of Pankaj Bansal would apply to arrests under the UAPA and other criminal offences from the date of pronouncement of Pankaj Bansal (i.e., 03.10.2023) and not from the date of Prabir Purkayastha (i.e., 15.05.2024).”
The Bench said that the requirement of serving grounds of arrest in writing to an arrestee is compulsory and unquestionable regardless of whether an arrest is made under the Prevention of Money Laundering Act, 2002 (PMLA) or the UAPA.
Advocate Siddhartha Borgohain represented the Petitioners while CGSC Amit Tiwari and SPP Rahul Tyagi represented the Respondents.
Brief Facts
As per the NIA’s case, the Petitioner No. 1 was the Chief of Army of the United National Liberation Front (UNLF), a designated terrorist organization listed at Entry No.14 of the First Schedule to the UAPA; Petitioner No. 2 was the Chief of Intelligence of the UNLF; and Petitioner No. 3 was an active member of the UNLF and a close associate of Petitioners Nos. 1 and 2. It was alleged that the Petitioners i.e., the accused persons were spearheading terrorist activities of the UNLF inter-alia by raising funds for that organization by resorting to extortion; and were also recruiting the cadres and procuring weapons to foment violence in the Manipur State, by fanning ethnic strife.
It was further alleged that the accused persons were part of a trans-national conspiracy hatched by Myanmar-based terror outfits, to exploit the ethnic unrest in Manipur and to wage war against the Government of India. Allegedly, at the time of their arrest in Imphal, Manipur, the accused persons were moving in an un-numbered car, carrying weapons and ammunition along with foreign currency and foreign SIM-cards. The accused persons were before the High Court, challenging the Remand Order and the subsequent Orders passed by the Special Court. They challenged their arrest on the ground that the arrests were made in contravention of the requirements of Section 50 of the Criminal Procedure Code, 1973 (CrPC) read with Section 43-B of the UAPA. It was contended by them that since they were not served with the grounds of arrest in writing, their arrest was illegal and unconstitutional.
Reasoning
The High Court in view of the above facts, noted, “At the risk of repetition, it may be said that the NIA has argued most strenuously, that the requirement for furnishing grounds of arrest in writing was laid-down in Pankaj Bansal and Ram Kishor Arora only in the context of section 19 of the PMLA; and that it was only subsequently in Prabir Purkayastha that the Supreme Court held that there is no significant difference in the language employed in section 19(1) of the PMLA and section 43-B(1) of the UAPA; and only thereafter did the requirement of furnishing the grounds of arrest in writing to an arrestee come into effect under the UAPA.”
The Court further reiterated that any change in the nature of the custody or the stage of the matter, would not validate an arrest that is ab-initio illegal. It remarked that the NIA must remind itself that a Constitutional mandate cannot be circumvented by resorting to jugglery of statutory provisions.
“It must be articulated that, in light of the verdicts of the Supreme Court in Pankaj Bansal, Prabir Purkayastha, and Vihaan Kumar, which are founded on Article 22(1) of the Constitution of India, there remains no doubt that the requirement of serving grounds of arrest in writing to an arrestee is compulsory and unquestionable regardless of whether an arrest has been made under the PMLA or the UAPA or under any other criminal statute. Moreover, the burden to prove compliance with the requirements of Article 22(1) of the Constitution always rests with the Investigating Agency”, it emphasised.
The Court was of the view that though neither of the parties pressed the contention that the Special Court did not make any enquiry on grounds of arrest in writing, the record shows that no ‘transit remand’ or other Order of a Court was obtained by the NIA before bringing the Petitioners to Delhi after taking them into custody in Imphal, Manipur; and therefore, no legal representation was afforded to the Petitioners at that stage.
“As a sequitur to the above discussion, and notwithstanding the seriousness of the allegations made against the petitioners, there is only one inference that can be drawn, namely that in the present case the NIA has failed to comply with the mandate of serving the grounds of arrest upon the petitioners in writing, whether at the time of arrest or even later-on, whether in the arrest memos or in the remand applications”, it added.
The Court, therefore, directed the release of the accused persons from the judicial custody. However, considering that they were facing charges in FIR, it directed that they shall be released from judicial custody subject to each of them furnishing a personal bond in the sum of Rs. 50,000/- with two local sureties in the like amount, to the satisfaction of the Trial Court.
Accordingly, the High Court disposed of the Petition and set aside the arrest of the accused persons.
Cause Title- Thokchom Shyamjai Singh & Ors. v. Union of India through Home Secretary & Ors. (Neutral Citation: 2025:DHC:1078)
Appearance:
Petitioners: Advocates Siddhartha Borgohain, Aditya Giri, and Hemant Kalra.
Respondents: CGSC Amit Tiwari, SPP Rahul Tyagi, GP Vedansh Anand, Advocates Chetanya Puri, A. Tanwar, Rahul Bhaskar, Soumyadip Chakraborty, Sangeet Sibou, Jatin, Mathew M. Philip, Priya Rai, and Abhishek Tomar.
