Can court examine legality of PMLA arrest when bail already rejected? Supreme Court to Hemant Soren

The Supreme Court on Tuesday asked former Jharkhand Chief Minister Hemant Soren whether a plea challenging his arrest in money laundering case would be maintainable since a trial court and High Court had already rejected his bail application in the matter [Hemant Soren v. Directorate of Enforcement and Anr]..A Vacation Bench of Justices Dipankar Datta and Satish Chandra Sharma said that since the order refusing bail says there is prima facie case made out against Soren, the question now would be whether the apex court can examine the legality of the arrest."There is a judicial forum order which says there is commission of offence. We have been called to ascertain whether the arrest was warranted based on the material. You have to persuade us despite these two orders (rejecting bail) we can get into the legality of the arrest," the Court asked.Sibal responded by saying that Soren was challenging the arrest itself as illegal and was not seeking bail or quashing of case."The judicial decision is that offence of money laundering has been committed under PMLA. Twin conditions apply when I say release me on bail. I am not asking for bail or quashing. I am not saying cognisance is bad. I am saying arrest was itself wrong since all material in possession does not make out a case for an arrest," Sibal replied.The Court noted that even as the writ petition filed by Soren challenging his arrest was pending before the High Court, Soren had filed a separate bail plea which came to be dismissed.The Court asked Soren's counsel Kapil Sibal whether that was permissible."Mr. Sibal, your writ petition was dismissed on May 3 by High Court and you had applied for bail on April 15. Did you take leave of the (High) Court - any formal leave of the High Court that since you (High Court) are not delivering judgment (in petition challenging arrest), we are moving for bail," the apex court asked."Certainly no," Sibal replied."Riding two horses at the same which is deprecated by this court on number of occasions," Additional Solicitor General (ASG) SV Raju said on behalf of the Enforcement Directorate (ED). .The Court was hearing a plea by Soren challenging his arrest by ED. .The ED has booked Soren in a case concerning “huge racket of illegal change of ownership of land by the mafia” in Jharkhand.The ED filed a prosecution complaint on June 23, 2016 in connection with the case under Section 45 of PMLA against Soren, ten others and three companies.So far, over a dozen people have been arrested in the case, including 2011-batch IAS officer Chhavi Ranjan, who served as Director of the State’s Social Welfare Department and Deputy Commissioner of Ranchi.The agency recorded Soren's statement under the PMLA on January 20 this year.He was later arrested and stepped down as Chief Minister of Jharkhand on January 31 in the wake of his arrest.He has, however, denied the allegations of money-laundering.In a video released soon before he was taken into custody, he claimed he was being arrested on the basis of “fake papers” as a part of a conspiracy. Soren's plea challenging his arrest was dismissed by the Jharkhand High Court on May 3.He has challenged the same before the top court.The Supreme Court on May 13 issued notice to ED on the plea challenging the Jharkhand High Court decision to not release Soren.The Supreme Court also asked the ED to file a short reply on Soren's prayer for interim bail..During the hearing today, Kapil Sibal, who appeared for Soren, told the Court that Soren has been booked only on the basis of oral statements by certain persons who claimed that Soren had illegally acquired ownership of 8.86 acres of land. "ED just record statements of people who say land belongs to Soren and that is how ED reaches the conclusion that land belongs to Hemant Soren. No actual evidence, only oral statements," Sibal said.He maintained that Soren has nothing to do with the land in question."Lease is with Rajkumar Pahan. Nothing to do with me and the electricity line connection also on the land has nothing to do with me," he said..ASG SV Raju said that Soren did not challenge the cognisance order and his bail plea was also rejected.The ASG also claimed that Soren tried to change the possession certificate."After he was issued notice, he tried to get back to one of the earlier owners and change the possession document. That means he is not only guilty but also destroying evidence. All of this has been looked into by the High Court in detail," the ASG contended..The Court meanwhile persisted with the line of questioning on Soren applying for bail even as his petition challenging arrest remained pending before the High Court."Suppose we hold the arrest is illegal then what happens to the two orders (denying bail)," the Court asked."It will go," Sibal replied.Sibal also contended that no scheduled offence was made out even if the allegations of ED are accepted."Illegal possession of property is not a scheduled offence. That is the law. Let me accept forcible possession argument though no evidence.. But even then no scheduled offence. Forgery which is predicate offence has no involvement of mine," Sibal argued.As regards filing for bail even as his petition against arrest was pending Sibal asked,"If I challenge my arrest in High Court and it remains pending for 2.5 months, then can I never apply for bail."He said that this issue might then have to be decided by the Supreme Court."This court has to decide that I can never apply for bail under Section 19 PMLA and if arrested under Section 19 then my right to bail goes. I am raising a constitutional infirmity because this is about my freedom and deals with Article 19 and if the arrest under Section 19 is wrong, then the arrest goes. Can it be the law that freedom of a man and legality of arrest cannot be gone into because he says without prejudice to his rights, he is seeking bail," the Senior Counsel submitted..He further said that the case was a "cooked-up" one but the Court said that ED has a good case on merits."See, they (ED) have a good case on merits. but you have to satisfy us. We will hear this tomorrow," the Court remarked while adjourning the matter for further hearing on Wednesday.