Judgment on plea challenging PMLA provisions 'almost ready', says SC

The petition says some provisions in the Act are unconstitutional, put a reverse burden on accused, give inspectors wide powers to arrest, and take away the right to silence

The Supreme Court on Friday said that the judgment on the plea challenging the provisions of the Prevention of Money Laundering Act(PMLA) is ‘almost ready’.

Justice AM Khanwilkar said this while hearing the petition filed challenging certain provisions of the 2013 Companies Act.

The Companies Act petition contends that some provisions in the Act are unconstitutional, put a reverse burden on the accused, give inspectors wide powers to arrest, and take away the right to silence.

“List this (Companies Act petition) after the PMLA judgment is delivered. It is almost ready,” the judge said.

The PMLA petition on the other hand addresses several issues under its ambit such as investigative powers under the Act, summoning of witnesses, Enforcement Directorate(ED) arrest and seizure, and bail, among other provisions of the Act.

Several petitions have been filed and grouped challenging the provisions of the Act. The petitioners had argued before the court that the powers of the enforcement agency to arrest, force confessions, and seize property were greatly unchecked.

Raising concerns that the Act is inconsistent with the provisions of the Criminal Procedure Code(CrPC), the petitioners argued that the accused does not have access to the Enforcement Case Information Report(ECIR) which encroaches upon the fundamental rights. In such cases, even the magisterial oversight is absent, the petitioners had argued.

Unlike police confessions, statements of the accused are admissible under the Act, the petitioners submitted.

And this is just scratching the surface of the problems associated with the Act, the petitioners said. The investigation procedure, questioning of the accused, seizure of assets, and the presumption of guilt is far different from the objective of the Act to check illegal drug trafficking, it was argued.  

Senior Advocate Menaka Guruswamy, appearing for one of the petitioners in February this year, had argued that out of the 1,700 raids and 1569 specific investigations by the ED, there have been only 9 convictions so far. However, this has not stopped the ED from making arrests and seizing assets, she submitted.

The petitioners had also stated that the Appellate Tribunal is severely understaffed and is an impediment to the rights of the accused against seizure of property.

Meanwhile, the counsel for the government argued that PMLA lays down its safeguards and other procedures. The Solicitor General had pointed out that of 3.3 million cases registered under PMLA, the ED had investigated only 2,186 in the past five years. He added that of the 4,700 cases probed by ED, there have been 313 arrests and 388 searches so far.

Justice Khanwilkar, who is presiding over the petitions, is set to retire at the end of this month.