PMLA Interpretation - ED's Procedure Of Not Informing Accused Of ECIR Contents Violates Article 21, Sibal To Supreme Court

The Supreme Court today commenced hearing the batch of petitions concerned with the 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 Senior Advocate Kapil SibalWhole Purpose Of PMLA Was That Drug Money Is Not Channeled Into Organizations That Work Against The Country Which Disrupt The Peace & Harmony Of The CountrySenior Advocate Kapil Sibal commenced his arguments by apprising the bench of the broad arguments on which he would deal. Debating on the enormous powers granted to the executive as a result of the various amendments made in the statute, Senior Counsel submitted that these powers that were now available with the executive were so draconian that they violated the basic procedure of the justice system."There has been major deviation from CrPC & powers that have been given that were never available under Part III," he added. Criticizing the provisions of bail under PMLA, Sibal said, "The bail provisions are such that the accused has no access to the documents. We have seen in the past that allegations are made, accepted by the court & bail has been denied. The Public Prosecutor has to be heard & unless I am not proved innocent, I will not get bail."He also pointed out that one of the issues was with regards to a person being called without telling him if he is called as a witness or accused & his evidence is recorded.In Our Criminal Justice System Any Process Involving Criminal Justice Must Be Open; Procedure By Enforcement Directorate Under PMLA By Recording ECIR Without Informing Proposed Accused Of Contents Of ECIR Is Procedure Unknown To Law & Violative Of Article 21To elaborate his submission that these laws were not only against the Constitution but also against the very system of criminal justice, Senior Counsel submitted that the person against whom Enforcement Case Information Report ("ECIR") was registered had no clue as to what ECIR contained.In the backdrop of this submission, he said, "The first question is can there be a procedure in law where penal proceedings can be started against an individual in law without informing him as to what is against him."Remarking that in our criminal justice system any process involving Criminal Justice must be open, Sibal said that any process involving criminal investigation must be open."This involves informing the accused about the nature of investigation & the allegations on which the investigation has commenced & the allegations that have been levied. The procedure by ED under PMLA by recording ECIR without informing the proposed accused of the contents of ECIR is procedure unknown to law. This is violative of Article 21," he added.Reference was also made to the Top Court's judgment in Youth Bar Association v. Union of India which held that accused was entitled to get the copy of the FIR and that the online copy of the FIR must be uploaded except in sexual crimes and sensitive offences relating to terrrorism and national security.Scheme Of The Act Excludes Provisions Of CrPCSenior Counsel further submitted that the scheme of the act excluded the provisions of CrPC. While Sibal referred to the provisions of CrPC with regards to the availability of documents to the accused on registration of FIR, Justice Khanwilkar asked,"Does PMLA expressly exclude this provision? If it does not, then the same can be telescoped here. Another analogy is, even in case of detention matters, immediately after arrest, detenue is provided with documents. Even if this offence is related to detention & ordinary law, then also these provisions will apply. This we will assume that it is Sui generis procedure & Sui generis offence but the procedure remains the same. Firstly Art 22(1) will apply. Transparency cannot be done away with under Article 22(1).""The better aspect is to consider that the provisions of CrPC would apply mutatis mutandis to the provisions on PMLA unless expressly provision is made," Justice Khanwilkar remarked further.Provisions Of PMLA Act Have Been Amended By Virtue Of Money Bill; Amendments Are Still Born; Amendments Are Colourable Exercise Of Power To Amend Various Provisions Of Criminal Law Without Referring Is To Rajya SabhaReferring to the amendments under section 2(1)(u), section 3 of PMLA Act, Senior Counsel submitted that the same were "stillborn" & many such amendments were made through Finance Act though the provisions have nothing to do with Money Bill. He further added that these amendments were a colourable exercise of power to amend various provisions of criminal law without referring it to the Rajya Sabha."What we could not give to the executive through processes of laws, we are through subterfuge granting them powers through procedures unknown to law. These powers allow the individuals to misuse them in any way they want", Sibal further added. Senior Counsel in this regard relied on the Top...

PMLA Interpretation - ED's Procedure Of Not Informing Accused Of ECIR Contents Violates Article 21, Sibal To Supreme Court

Shruti Kakkar

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