PMLA Review: Supreme Court Agrees To Relook Into Aspects Of Providing ECIR To Accused & Negation Of Presumption Of Innocence

The Supreme Court on Thursday issued notice on a petition filed by Congress MP Karti P Chidambaram, seeking review of its July 27 judgment in Vijay Madanlal Choudhary vs Union of India which upheld the power of arrest, attachment and search and seizure conferred on the Enforcement Directorate by the Prevention of Money Laundering Act, 2002.A bench headed by CJI NV Ramana opined that prima facie, two aspects of the judgment upholding the provisions of the Prevention of Money Laundering Act (PMLA) require to be reconsidered: (i) regarding no legal requirement to provide ECIR copy to the accused and (ii) the reversal of presumption of innocence."There is no need for elaborate hearing. We three feel need there are 2 aspects requiring in the judgment for relook. We are in full support of prevention of black money. Country cannot afford such offences. The object is noble," the 3-judge bench also comprising Justices Dinesh Maheshwari and CT Ravikumar said.It may be noted that review petitions are ordinarily considered in chambers. However, an exceptional open hearing in the matter was allowed by the bench yesterday.The plea was opposed by Solicitor General Tushar Mehta appearing for the Centre. He said, "There has to be error apparent on record for review. And this is not a standalone act, but it is as per India's international commitments."Senior Advocate Kapil Sibal, appearing for the review petitioner, submitted that the issue relating to retrospective application of PMLA needs reconsideration. "The judgment holds money laundering is a continuing offence. So the proceeds from 1999 can be an offence, even if it was not a scheduled offence in 1999 and he can be proceeded now on ground of concealing proceeds of crime. That is the issue", Sibal submitted.CJI Ramana said that the bench has prima facie identified the above said two issues - relating to ECIR and reversal of burden of proof.Sibal urged the bench to reconsider the entire judgment. "The judgment holds that PMLA is not a penal statute. That needs to be reconsidered", Sibal submitted.The CJI however stuck to the stand. "These are the two issues prima facie we thought of reconsideration. That is the reason we are limiting the review on these two grounds", he said.When Sibal repeated his submission, the CJI said "My brothers are not agreeable". The bench issued notice on the review petitioner, after noting the prima facie issues. "Having heard learned Senior counsel appearing on behalf of the petitioner as also learned Solicitor General appearing on behalf of the respondent, prima facie, we are of the view that at least two of the issues raised in the instant petition requires consideration", the order passed by the bench stated.Although the bench had orally directed to extend the interim protection to the petitioner by 4 weeks, the same is not reflected in the order which was uploaded later in the day.The impugned judgment upheld the power of arrest, attachment and search and seizure conferred on the Enforcement Directorate by the Prevention of Money Laundering Act, 2002. The judgment was delivered by a 3-judge bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar.With the retirement of Justice Khanwilkar, CJI Ramana presided over the bench which considered the review petition.Interestingly, in a judgment delivered on August 23, a bench led by CJI Ramana had expressed concerns about the PMLA judgment, insofar as it allows ED to take possession of the property before trial in exceptional circumstances. "Having perused the said judgment, we are of the opinion that the aforesaid ratio requires further expounding in an appropriate case, without which, much scope is left for arbitrary application," it said.Recently, former Supreme Court judge Justice L Nageswara Rao, speaking at a public event, opined that he might have taken a different view in the PMLA judgment.Through the impugned judgment, a three-judge bench Bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar upheld the constitutionality of the provisions of Sections 5, 8(4), 15, 17 and 19 of the PMLA, which relate to the powers of ED's power of arrest, attachment, search and seizure.The Court also upheld the reverse burden of proof under Section 24 of the Act and said that it has "reasonable nexus" with the objects of the Act.The Court also upheld the "twin-conditions" for bail in Section 45 of the PMLA Act and said that the Parliament was competent to amend the said provision in 2018 even after the Supreme Court's judgment in the Nikesh Tharachand Shah case (which had struck down the twin conditions).The bench said that the Parliament is competent to amend Section 45 in the present form to cure the defects pointed out in the Supreme Court judgment.Read summary of the judgment here.Case Title : Karti P Chidambaram versus The Directorate of Enforcement | RP(Crl) 219/2022 In TC(Crl) 4/2018Click here to read/download the order

PMLA Review: Supreme Court Agrees To Relook Into Aspects Of Providing ECIR To Accused & Negation Of Presumption Of Innocence

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