The Supreme Court will hear today a batch of applications seeking reconsideration of its judgment in Vijay Madanlal Choudhary v. Union of India which upheld the constitutional validity of several provisions of the Prevention of Money Laundering Act (PMLA) relating to arrest, search and seizure by the Enforcement Directorate (ED), the stringent bail conditions and the reversal of burden of...
The Supreme Court will hear today a batch of applications seeking reconsideration of its judgment in Vijay Madanlal Choudhary v. Union of India which upheld the constitutional validity of several provisions of the Prevention of Money Laundering Act (PMLA) relating to arrest, search and seizure by the Enforcement Directorate (ED), the stringent bail conditions and the reversal of burden of proof.
A special bench comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna and Bela M Trivedi is hearing the matter.
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Khanna J: That extension can be made by the legislature.
Sibal: It can also be tested by this court on the basis of our constitutional principles.
Kaul J: Has to be tested on constitutional parameters.
Sibal: That's my argument.
Bench adjourns hearing until tomorrow.
Sibal argues that PMLA's ambit has been extended to cover even offences not related to drug trafficking, organised crimes, and other serious crimes.
Sibal: PMLA is under the FATF scanner of laws being misused to target NGOs.
Sibal reads out Art 6 of Palermo Convention -
"Each State Party shall adopt, in accordance with fundamental principles of its domestic law, such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally..."
Sibal: The conventions were for drug trafficking and organised crime...This is what PMLA is meant for...Not S 420 etc
Khanna J: No of countries have added scheduled offences.
Sibal: Yes, but that has to be tested on basis of constitutional principles. Some jurisdictions have extended it, but they don't have the kind of provisions we have.
Sibal takes court through genesis of PMLA -
"We are part of the Vienna Convention and Palermo Convention that required us to formulate a domestic law in light of these treaties..."
SG Mehta: As a nation, we should be proud that there is a provision that allows the confiscated property to be restored to claimants with legitimate interest. Approximately 17,000 crores amount has been restored to victims, especially in bank fraud cases. (Refers to S 8(8) PMLA)
Sibal: This confiscation is in aid of prosecution...after you are convicted. But, Vijay Madanlal interprets PMLA as a regulatory statute. When your property is attached, your bank account frozen...A businessman's business is finished. You cannot have draconian provisions of this manner.
Sibal: Many other statutes have confiscation provisions...UAPA etc. But what makes PMLA so special that it makes it a regulatory statute?
Sibal raises concern about possession of proceeds of crime being categorised as money laundering -
"Every crime would amount to laundering of money, and in every crime, unless you show that you are not guilty, you will not get bail. That's the consequence and the enormity of the impact of this judgment."
Sibal: You are dealing with a statute that affects citizens...You don't have to go into facts of each issue. If you find as a matter of law that it requires reconsideration, then you may refer it to a larger bench.