Low Conviction Rates In ED Cases Not A Ground To Decide Validity Of PMLA Provisions, Says Supreme Court During Hearing

The Supreme Court on Thursday remarked that the constitutional validity of the provisions of the PMLA Act cannot be judged on the basis of the performance of the Executive or the police or the inability to take the prosecution to its logical end or the low rate of conviction or the low rate of appeals against acquittal.On Wednesday, Senior Advocate Maneka Guruswamy, for one of the petitioners, had told the Court that of the 1700 raids conducted and 1569 specific investigations by the ED- with rates increasing by 20% every year, and then doubling and tripling- since 2011, only 9 convictions have been secured. "What the agency has been able to secure in hundreds and hundreds of cases has been attachment of property, arrest, months of scheduled and unscheduled interrogation, seizing of properties, signing of documents, self-incrimination, resulting in a violation of well-established principles that we agreed to in 1950 when the Constitution came in", she had urged.On Thursday, Dr. Guruswamy highlighted the big jump in the number of asset attachment orders from 2019-2020 onwards. "The idea is not to show that it happened during 'A' regime or 'B' regime'", she clarified.She continued to submit that in view of the number of investigations initiated, attachments, arrests and interrogations made, investigations concluded, and juxtaposed with this low rate of conviction, the logical expectation would be of more appeals. But she indicated that the reality could not be more different- "That is the disturbing bit. In 2010-11, no appeals were filed! Again in 2011-12, no appeals!"Justice A. M. Khanwilkar asked, "Is it a reflection on investigation or the trial? Maybe the trial assistance is such...?"The judge continued to ask if, with this data, Dr. Guruswamy was hinting that the Act is being abused.She replied, "The larger question that I ask myself as an officer of the court is that if this is the effort being made for initiating investigations, if this is the effort being made to conclude the investigation, then what is causing this state of affairs (of few convictions and low rate of appeals)"Justice Khanwilkar observed, "This argument can also be used by the other side to say that this argument of bogey of presumption affecting the accused concerned is untenable because despite that presumption, there are acquittals. Such arguments cannot be the basis...""But then the process is the punishment! The ED will make attachments, you won't get a copy of the ECIR, lawyers won't know the template because there is no procedural manual!...There are 220 cases where the ED does not know what the predicate offence is! And 959 crores have been seized in respect of them!", submitted Dr. Guruswamy.Justice Khanwilkar noted, "Maybe that is because they are 3rd parties and they haven't committed the predicate offence. We cannot use this material to hold against them. They must be collaborators in money laundering, not named accused in the predicate offence. That is a possibility...This doesn't take us anywhere, don't focus on this. We cannot judge the validity of the provision on the basis of the performance of the executive or the police; it has to be valid or invalid on its own, not on the basis of inefficiency or the inability to take the prosecution to its logical end, ending with conviction only"Justice Dinesh Maheshwari added, "Even if very good returns are there, and if it is otherwise violative of the constitutional scheme, good returns will also not make it constitutional. The figures, numbers, statistics, maths don't lead us to that conclusion. What has happened and what has not happened in a particular individual case will not lead us anywhere"Justice Khanwilkar continued, "We have reservations about this proposition that the number of convictions will determine the validity of the Act- unless you can support it with some precedent"Next, she urged that by virtue of section 50(3) of the PMLA, the person summoned must give a statement which comports with the perception of truth of the agency, failing which they are threatened with consequences under section 63, whereunder they can be imprisoned. Dr. Guruswamy also emphasised the impact of such evidence in view of the fact that the Act envisages the same court to try both the PMLA offence as well as the scheduled offence."The issue in the joint trial, so to speak, is that in such parallel proceedings, you are appreciating the same evidence with regard to the same parties, but then you have to exclude it for one part of the offence and include it for the other part of the offence. And sometimes on the same day and at the same time, at the same moment. As a judge, I have a file which has evidence that I cannot rely on in one trial. The judicial mind is here expected to not only distinguish different journeys of what is admissible and what is not, but in fact distinguish between two different sets of rights, two different universes of rights, essentially pertaining to the same...

Low Conviction Rates In ED Cases Not A Ground To Decide Validity Of PMLA Provisions, Says Supreme Court During Hearing

Mehal Jain

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