PMLA Arrest Process Like A 'Frankenstein's Monster' : Kapil Sibal Urges Supreme Court To Devise Fair Procedure

The Supreme Court on Wednesday continued hearing a batch of petitions concerned with interpretation of the Prevention of Money Laundering Act, 2002 ("PMLA Act").The matter was listed before the bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar.Submissions Of Counsel(s)We've Created Frankenstein Monster; Laws Of This Nature Should Be Dealt With As Quickly As Possible: Senior Advocate Kapil SibalSenior Advocate Kapil Sibal, while referring to Section 19 of PMLA Act which deals with the Powers of Arrest, submitted that there had to be a procedure through which the accused is informed so that he/she is entitled to seek constitutional remedies.Bescheeing the bench to devise some procedure, Senior Counsel while questioning the validity of arrest on the exclusion of material said,"If the material is not disclosed to me & is given to the adjudicating authority & only sections are disclosed to me, how can I ask for bail? I only know grounds for arrest but since no ECIR (Enforcement Case Information Report) is given to me, I have no material. What I'm canvassing is, there has to be a procedure through which I'm informed so that I am entitled to seek my constitutional remedies. I have remedies u/s 482 CrPC, Art 226, 32, but all these flow from Art 21. If the material is excluded, what would be the validity of arrest? Your lordships need to devise some procedure."While Sibal during the course of hearing was referring to various judgements of the High Court to apprise the bench of the views taken by the High Court's, Justice AM Khanwilkar the presiding judge of the bench said,"Just wondering how much judicial hours have been wasted in this case. Lawless paradise."Responding to the remarks made by the bench, the Senior Counsel to conclude his submission said, "It's not only lawless paradise but Bureaucrat's paradise. We've created Frankenstine monster. It's like "Be Lagam Ghoda" because there is no restraint. Laws of this nature should be dealt with as quickly as possible. I'd say we need to control this Frankenstein Monster that we've created."Submissions Of Senior Advocate Siddharth LuthraThere Is No Magisterial Oversight; There's A Lawless Regime; It's Onerous To Point Of Being Scary For Individual Who Has Been Picked Up Under StatueSenior Advocate Siddharth Luthra commenced his submissions by stating that the Charge Sheet test should not "only" be considered for determining whether officers under ED are police officers or not.To elaborate on this contention, Senior Counsel while referring to the definition of investigation u/s 2(na) of PMLA and 2(h) of CrPC said that both were same and dealt with, "proceedings for collection of evidence". He further contended that the procedure and events antecedent to the filing of the Complaint are the same i.e. the same investigation as defined under the Cr.P.C. or the PMLA.To further substantiate this contention, Senior Counsel referred to the additional powers that have been granted to ED officers with regards to filing of closure reports (proviso to section 44(1)(b) PMLA which is akin to the Cr.P.C. where a closure report is filed under the same provision as that for filing of a charge sheet i.e. Section 173(2) Cr.P.C.; and for carrying out further investigation [Explanation (ii) to Section 44(1) PMLA] which is also a power vested in police officers under Section 173(8) Cr.P.C.He further submitted that the provision u/s 45 of the PMLA, 2002 were onerous and even the Magistrate u/s 157 was not aware of why the accused was arrested."There are onerous provisions u/s 45 & I don't even get the ECIR. Magistrate under 157 does not know why I am arrested. It's a peculiar problem. There is no Magisterial Oversight. There's a lawless regime. It's onerous to the point of being scary for the individual who has been picked up under the statue."During the course of hearing, the bench posed a question to Senior Counsel as to whether the ED officer was expected to maintain everything that a police officer maintained under CrPC."If there is mutatis mutandis, do you expect the officer to maintain everything that a police officer maintains under CrPC? Is it going to be your argument that being a police officer for PMLA, officers are required to adhere to all the discipline? CrPC we've said mutatis mutandis, but there are other provisions too," asked Justice AM Khanwilkar."The police are governed under various regimes & they supplement with CrPC & they are sacrosanct. These (manuals & provisions by States on Police) are nuts & bolts but they do not supersede CrPC," responded Luthra.Referring to Sections 154 and 155 of CrPC, Senior Counsel said that there was no provision under PMLA dealing with as to how investigation would trigger.Highlighting the procedure followed by Adjudicating Authority u/s 8 of PMLA Act, Senior Counsel said, "Adducting authority to whom the information goes is not overseeing my arrest. It has nothing to do with my arrest."At this juncture, Justice...

PMLA Arrest Process Like A 'Frankenstein's Monster' : Kapil Sibal Urges Supreme Court To Devise Fair Procedure

Shruti Kakkar

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