NEW DELHI: A Delhi court has sharply criticised the Enforcement Directorate (ED) while granting bail to Mangelal Sunil Agarwal, an accused in a money laundering case. The court emphasised that the power to arrest must be balanced by clear regulations and strict supervision.
Additional Sessions Judge Dheeraj Mor of the Patiala House Court granted Agarwal bail, noting a troubling inconsistency in the ED’s investigation. The court highlighted that while a previous investigating officer (IO) had named Agarwal as a witness, a subsequent IO arrested him based on the same evidence – a move the court found concerning.
Judge Mor, in his order on August 31, emphasised the need for objectivity in investigations, warning against subjective interpretations by IOs, which could lead to arbitrary decisions and unjust curtailment of individual liberty.
“The hallmark of investigation is its objectivity,” the judge remarked, underscoring the potential dangers of allowing an IO’s whims to dictate actions as significant as arrests.
The court pointed out that in November 2022, it had decided not to summon Agarwal, as the evidence on record was insufficient to warrant such action. The judge criticised the later decision to arrest Agarwal on the same grounds, viewing it as an overreach by the IO.
Further, the court noted that the ED had been trying to gather additional evidence against Agarwal post-arrest by examining his mobile data and emails, calling this an attempt to retroactively justify the arrest. “That is putting the cart ahead of horse... an attempt to justify the arrest,” the court said.
The court said admittedly, the IO has the prerogative to take the decision to arrest or not arrest any person.
“However, it cannot be arbitrary... the act of the IO to arrest him on the same evidence is an apparent overreach of his powers that deserves to be disapproved. The power to arrest must be directly proportional to its checks and balances coupled with unambiguous regulations or Standard Operating Protocol,” the court said.
The court called upon the ED director to clarify whether any standard operating procedures or regulations govern the process of arrest within the central agency. The judge requested a report within a month, detailing any errors by the IOs involved and what actions, if any, were taken against them.
“If these systems are evolved and are in place, this case is classic example of its violation. Therefore, it is expedient in interest of justice to call upon worthy Director, ED to conduct an inquiry for ascertaining the reasons for adopting absolutely diametrically opposite approach by two IOs confronted with exactly same evidence against the accused,” it said.
The case relates to an alleged conspiracy involving Phoenix International FZC and other accused, including Agarwal, in which funds amounting to Rs 18.88 crore were allegedly siphoned from Ligare Aviation Ltd using fake invoices.