PMLA Accused Entitled To Receive List Of Materials Not Relied Upon By ED : Supreme Court

In an important judgment relating to the Prevention of Money Laundering Act (PMLA), the Supreme Court held that an accused is entitled to a list of the documents and statements, which were collected by the Directorate of Enforcement during the investigation but were later given up by them while filing the prosecution complaint.The Court held that the accused must have knowledge about the unrelied upon documents, so that he can apply at the defence stage for their production. When an accused makes such an application, the Courts should be liberal in allowing them, and should deny only in exceptional circumstances, given the reverse burden imposed by the PMLA, the Court added."It is held that a copy of the list of statements, documents, material objects and exhibits that are not relied upon by the investigating officer must also be furnished to the accused. The object is to ensure that the accused has knowledge of the documents, objects etc., in the custody of the investigating officer, which are not relied upon by them, so that at the appropriate stage, accused can apply by invoking Section 91 CrPC (Section 94 BNSS) for providing copies of the documents which are not relied upon.".At the stage of entering defence, the accused can apply for the issuance of process for production of documents or anything recorded under Section 233 CrPC (Section 256(b) BNSS). At this stage, the accused can also apply for the production of a document or thing that is not in the custody of the prosecution but is not produced, the Court said."A fair trial is a part of the right guaranteed under Article 21 of the Constitution. The right to have fair trial of the accused includes the right to defend. The right to defend consists the right to lead defence evidence by producing documents and examining witnesses. Therefore, the accused is entitled to exercise the right at the stage of entering defence by compelling the prosecution or a third party to produce a document or thing in their possession or custody. The Court can decline the request of the accused for issuing process for the production of documents only on the limited ground under Section 233(3) CrPC," the Court held."When at the stage of defence evidence of the accused, documents are produced on the prayer of accused and the accused desires to cross-examine any of the witnesses based on the said documents, it is obviously open for the accused to apply under Section 311 CrPC to recall the prosecution witness already examined for further cross-examination. The reason is that the right to effectively cross examine the prosecution witnesses is also a part of the right to fair trial," the Court added.The Court noted that the PMLA puts a negative burden on the accused when compared to other traditional penal statutes. Therefore, it is all the more important that Section 232(3) CrPC is "liberally construed: in favour of the accused. Because the constitutional validity of Section 24 PMLA (which imposes reverse burden on the accused) was upheld on the ground that the accused has full opportunity to show innocence. "Therefore, if the Special Court refuses the prayer made by the accused in terms of Section 233(3) CrPC for compelling the attendance of any witness or for production of documents in possession of any party, the accused will not be in a position to discharge the onerous burden on him under Section 24 of the PMLA. Hence, the valuable right of the accused under Section 233 CrPC needs to be protected."Production of unrelied documents can be sought even at the stage of bail"At the time of hearing of an application for bail governed by Section 45 in connection with offences under PMLA, an accused is entitled to invoke Section 91 CrPC seeking production of unrelied upon documents. If investigation or further investigation is in progress, the ED is entitled to raise objections to the production of documents sought by the accused on the ground that if the documents are disclosed, it may prejudice the investigation. Only if the Court, after perusing the documents is satsified that the disclosure of the documents at this stage may prejudice the ongoing investigation, it may deny the production of such documents," the Court added.A bench of Justice Abhay S Oka, Justice Ahsanuddin Amanullah, and Justice Augustine George Masih delivered its judgment in an appeal concerning the entitlement of accused persons under the Prevention of Money Laundering Act (PMLA) to obtain documents seized during investigation that the prosecution does not rely upon, before the commencement of trial.Justice AS Oka, reading out the judgment, held that once cognizance has been taken on the prosecution complaint, the Special Judge must direct that along with the process, a copy of the complaint and following documents must be provide to the accused :1. Statements recorded by the Special Judge of the complainant and witnesses, if any, before taking cognizance.2. Documents including the statements under Section...

PMLA Accused Entitled To Receive List Of Materials Not Relied Upon By ED : Supreme Court

Amisha Shrivastava

The Court held that the production of unrelied upon documents can be sought by the accused in bail hearing as well.

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