On Wednesday, the Supreme Court upheld the provisions of PMLA (Prevention of Money Laundering Act) that relate to the power to arrest/attachment/and seizure which are conferred on the Enforcement Directorate.The Apex Court upheld the Constitutional validity of provisions of Section 5,8,15,17 and 19 of PMLA that deal with the EDs power of arrest, attachment, search and seizure. The court also upheld the reverse burden of proof u.s 24 of the Act after opining that the provision has a reasonable nexus with the objectives of the Act.The Court also affirmed the twin conditions of bail in Section 45 of the PMLA Act and observed that the Parliament is competent to amend the provisions in 2018 even though the Top Court had struck down the twin conditions in Nikesh Tarachand judgement.The twin conditions for bail were:(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.Join LAW TREND WhatsAPP Group for Legal News Updates-Click to JoinThe court also upheld that ED officials are not police officials and therefore any statements recorded by them u.s 50 of the Act will not be hit by Article 20(3) of the Indian Constitution that gives a right against self-incrimination. As per the Court, Section 50 procedure is an inquiry and not an investigation.As per the court, ECIR (Enforcement Case Information Report) cannot be equated to an FIR and so CrPC provisions related to FIR will not apply to ECIR. the court also opined that supplying ECIR is not mandatory and the disclosure for the grounds of arrest is sufficient. The court clarified that when a person is before the court it can ask for records.
Arguments of the petitioner that the offence of money laundering u.s 3 of the Act will only apply if the projected property is untainted, were also rejected by the court and it opined that Section 3 has a wider reach and observed that mere possession of proceeds of crime can be considered money laundering.Significantly, the Bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar directed the Central Government to fill up vacancies in the PMLA Appellate Court.The court has also left open the issue of whether amendments made to PMLA in 2018 could have been done through the Finance Act? This issue will be decided by a seven-judge bench.