In present scenario monetary crimes are also evolving with the time and pertaining to these offences there are various legislation enacted by the Indian government. Money laundering is one the heinous crime, which not only affect the economic strength, social and economic fabric of the nation, but also tends to promote other heinous offences, such as terrorism, offences related to NDPS Act, etc.,
The three judges bench headed by Justice A M Khanwilkar and bench comprising Justices Dinesh Maheshwari and CT Ravikumar has considered Special Leave Petition (Criminal) No. 4634 OF 2014 where petitioner is –Vijay Madanlal Choudhary & Ors Vs Union of India -respondent and others.
In above mentioned case Hon’ble Supreme court upheld the provision of Prevention of Money Laundering Act 2002, which relate to the power of arrest, attachment and search seizure conferred on the Enforcement Directorate.
In the batch of petition(s)/appeal(s)/case(s), Supreme court is called upon to deal with the pleas concerning validity and interpretation of certain provisions of the Prevention of Money Laundering Act, 20021 and the procedure followed by the Enforcement Directorate while inquiring into/investigating offences under the PMLA, being violative of the constitutional mandate.
CONSTITUTIONALITY OF PMLA ACT HAS BEEN CHALLENGED ON ENUMERATED GROUNDS:
- That there is absence of procedure for commencing investigation and also for summoning.
- That reverse burden cast on the accused to prove the innocence
- That there should be stringent condition for granting the bail.
- That the application of rigors of Section 45 should not apply with respect respect to anticipatory bail filed under Section 438 CrPC. In this regard, the court said that it would not be logical to disregard the limitations imposed on granting bail under Section 45, in the case of anticipatory bail as well.
REPORT ON RECORDED DATA RELATED TO PMLA
Supreme court mentioned that ED official secured only nine convictions after 1700 raid, after such mass raids there were only 1569 proper specific investigation. Honorable apex court in its judgement has noted that only one member of the five-person committee was serving in PMLA tribunal. There was serious impediment in securing remedy for unjustified attachment officer done by ED officer.
Investigation cases under the PMLA
- Total no of cases: – 4700
- Total no of arrest: – 313
- Total no of search: – 388
These stats show how overburdened the PMLA tribunal is working and which is very less in compare to other countries like U.K and USA. Predicate offences that were higher in last five year were 33,00,000 out of which only 2,186 were picked for the specific investigation in last few years.
Honourable Apex court has upheld validity of PMLA,2002 act and its certain provision:.
- Section-5 attachment of property involved in money laundering.
- Section8(4)- taking possession of attach property.
- Section 15- procedure and manner of furnishing information, by banking company, financial institutions and intermediary.
- Section17- search and seizures
- Section 19- power of arrest
- Section24- court also upheld the reverse burden of proof on accused this section has reasonable nexus and object to be achieved by the legislation.
Court also emphasized that ED official is not the police officer. Statement made by the accused to police officer and statement made by the accused to police official under section50, of PMLA are not hit by article20(3) of the constitution which guarantees the Fundamental rights against Self-Incrimination. The apex court has also ascertained that protection under section 25 of the Indian evidence act(which make confession to police statement inadmissible) is available to an accused who has been prosecuted under the PMLA but such application may have to be considered on the case-to-case basis.
One of the crucial challenges made by the petitioner was that broad scope of the act is so wide so as to open doors for arbitrariness as recently schedule of the act has been amended to include variety of offences as “predicate offence”.
Pertinently court clarified the acquittal or discharge of an accused in a predicate offence or question of quashing such offence will lead to further increase in offence of money laundering and thus situation must be seen through practical wisdom beside addressing the challenges to the constitutional validity of the provision of this law. The supreme court also directed the centre to expeditiously fill up the vacancies in the PMLA tribunal.
READ THE FULL JUDGEMENT