PMLA Interpretation: Senior Lawyers Question Constitutionality Of Bail, Arrest & Attachment Procedure

The Supreme Court on Wednesday continued 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.Submission Of CounselsSubstance Of PMLA Is That It's Impossible For Accused & Judge Per Se To Give Bail Which Amounts To Saying There Shall Be No Bail: Senior Advocate AM SinghviSenior Advocate AM Singhvi on the aspect of twin conditions u/s 45 of PMLA Act submitted the bench had to see whether the twin conditions independently satisfied Article 14, 19 and 21 of the Constitution of India, 1950 irrespective of the overlap.To further substantiate his contention, Senior Counsel said, "We're talking about the power of bail which makes an arrest final pre-conviction. You can arrest but it should not bar the judge from even the possibility of granting bail. Your lordship has to see whether it independently satisfies all the articles irrespective of the overlap."Contending that the substance of PMLA was that it was impossible for the judge and the accused to per se give bail which amounted to saying that there shall be no bail, Singhvi said, "Mere fact' which says that "there shall be no bail" make bail to a vanishing point, even that'll have to be tested. This is exactly the pernicious evil which your lordships will not permit under Art 21. Please keep open the reasonable right of a person to seek bail. Only reasonable right."Explanation Under Section 44 of PMLA Runs Contrary To Section 3 And Therefore Cannot Be Sustained; Act Of Lodging ECIR Being A Carbon Copy Of FIR On Same/Next Day & Commencing Process Of Investigation With Threat Of Arrest Is Not Proper Implementation Of This Act; Some Investigation Has To Be Done Even If You Take Prima Facie View Before Wheels Of Criminal Law Are Set Into Motion: Senior Advocate Mukul RohatgiSenior Advocate Mukul Rohatgi limited his submissions on the validity of the explanation under section 44 of PMLA Act which says, "For the removal of doubts, it is clarified that,—(i) the jurisdiction of the Special Court while dealing with the offense under this Act, during investigation, enquiry or trial under this Act, shall not be dependent upon any orders passed in respect of the scheduled offense, and the trial of both sets of offenses by the same court shall not be construed as joint trial;(ii) the complaint shall be deemed to include any subsequent complaint in respect of further investigation that may be conducted to bring any further evidence, oral or documentary, against any accused person involved in respect of the offense, for which complaint has already been filed, whether named in the original complaint or not."Explanation Under Section 44 of PMLA Runs Contrary To Section 3 And Therefore Cannot Be SustainedSenior Advocate submitted that giving pre-eminence to the trial with regards to the money laundering offense and not the scheduled offense was contrary to Section 3 of the PMLA Act and would result in "manifest arbitrariness". To further substantiate his contention Senior Advocate gave an example: "If I robbed a bank & gave my money to someone else to launder it. I will be accused of a scheduled offense & the other person of Section 3 offense said, "What happens in reality is they make me an accused u/s 3 offense as well as scheduled offense." Referring to section 3, Rohatgi said, "2 things are important: 1. You should be connected with the activity of proceeds of crime and 2. Offense will be complete only if you do another act & that is of projecting those funds- the act of projecting the funds of robbery projecting it as untainted property""If I have not robbed the bank & I'm acquitted or discharged, how can I be guilty of money laundering", Rohatgi asked. He requested the bench to clarify or lay down that, "Jurisdiction of one court is not to be affected by something which may happen in other court but this may not be read to mean that offence u/s 3 will go on if the scheduled offence has gone."Act Of Lodging ECIR Being A Carbon Copy Of FIR On Same/Next Day & Commencing Process Of Investigation With Threat Of Arrest Is Not Proper Implementation Of This Act; Some Investigation Has To Be Done Even If You Take Prima Facie View Before Wheels Of Criminal Law Are Set Into MotionDuring the course of hearing Senior Counsel while drawing court's attention to FIR and ECIR being lodged on the same day in verbatim, commencement of investigation and arresting the accused in both the offenses at different times said,"The act of lodging ECIR being a carbon copy of FIR on the same/next day & commencing the process of investigation with threat of arrest is not proper implementation of this act. From a CBI FIR or police FIR, you cannot start the investigation. There cannot be mechanical lodging of ECIR on verbatim opening me to arrest under this act without anything more. What is the proper way to structure is- that is...

PMLA Interpretation: Senior Lawyers Question Constitutionality Of Bail, Arrest & Attachment Procedure

Shruti Kakkar

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