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SUPREME COURT OF INDIA
A.M. Khanwilkar, Dinesh Maheshwari, C.T. Ravikumar, JJ.
Vijay Madanlal Choudhary & Ors. – Appellants
Versus
Union of India & Ors. – Respondents
Special Leave Petition (Criminal) Nos. 4634, 28394, 28922 & 29273 of 2011 with Special Leave Petition (Criminal) Nos.............OF 2022 (@ Diary No. 41063 Of 2015) Special Leave Petition (Criminal) Nos. 9987, 10018 & 10019 of 2015 Special Leave Petition (Criminal) Nos. 993 OF 2016 Transfer Petition (Criminal) Nos. 150, 151-157 & 152 of 2016 Special Leave Petition (Criminal) Nos. 11839, 2890 & 5487 of 2019 Criminal Appeal Nos. 1269, 1270 & 1271-1272 of 2017 Writ Petition (Criminal) Nos. 202 of 2017 Special Leave Petition (Criminal) Nos.............OF 2022 (@ Diary No(s). 9360, 9365, 17000, 17462, 20250 & 22529 of 2018) Special Leave Petition (Criminal) Nos. 1534, 1701-1703, 1705, 2971, 4078, 5444, 6922, 7408, 8156 & 11049 OF 2018 Criminal Appeal Nos. 223, 391-392, 793-794, 1114, 1115 & 1210 of 2018 Writ Petition (Criminal) Nos. 26, 33, 75, 117, 173, 175, 184, 226, 251, 309, 333 & 336 OF 2018 Transfer Petition (Criminal) Nos. 3, 4, 5 & 1583 of 2018 Special Leave Petition (Criminal) Nos. 244, 3647, 4322-4324, 4546, 5153, 5350, 6834, 8111, 8174, 9541, 9652 & 10627 of 2019 Writ Petition (Criminal) Nos. 9, 16, 49, 118, 119, 122, 127, 139, 147, 173, 205, 212, 217, 239, 244, 253, 261, 263, 266, 267, 272, 273, 283, 285, 286, 287, 288, 289, 298, 299, 300, 303, 305, 306, 308, 309, 313, 326, 346, 365 & 367 of 2019 Criminal Appeal Nos. 682 of 2019 Special Leave Petition (Criminal) Nos. 647, 260, 618, 1732, 2023, 2814, 3366, 3474, 5536, 6128, 6172, 6303, 6456 & 6660 of 2020 Writ Petition (Criminal) Nos. 5, 9, 28, 35, 36, 39, 49, 52, 60, 61, 89, 90, 91, 93, 124, 137, 140, 142, 145, 169, 184, 221, 223, 228, 239, 240, 259, 267, 285, 286, 311, 329, 366, 380, 385, 387, 404, 410, 411 & 429 of 2020 Writ Petition (Civil) Nos. 1401 of 2020 Special Leave Petition (Criminal) Nos.............OF 2022 (@ DIARY NO(S). 8626, 31616, 11605 of 2021) Special Leave Petition (Criminal) Nos. 609, 734, 1031, 1072, 1073, 1107, 1355, 1440, 1403, 1586, 1855, 1920, 2050-2054, 2237, 2250, 2435, 2818, 3228, 3274, 3439, 3514, 3629, 3769, 3813, 3921, 4024, 4834, 5156, 5174, 5252, 5457, 5652, 5696-5697, 6189, 6338, 6847, 7021-7023 & 8429 of 2021 Special Leave Petition (Civil) Nos. 8764-8767 of 2021 Special Leave Petition (Civil) Nos. 20310 of 2021 Transfer Petition (Criminal) Nos. 435 of 2021 Writ Petition (Civil) Nos. 56 of 2021 and Writ Petition (Criminal) Nos. 4, 6, 11, 18, 19, 21, 27, 33, 40, 47, 66, 69, 144, 179, 199, 207, 239, 263, 268, 282, 301, 323, 359, 370, 303, 305, 453, 454, 475, 520 & 532 of 2021
Decided On : 27-07-2022
(A) Prevention of Money Laundering Act, 2002 – Section 3 – Offence of money laundering – Scope and ambit – It Encompasses concealment, possession, acquisition, use, projecting/claiming tainted money to be untainted – Offence of money-laundering is an independent offence regarding process or activity connected with proceeds of crime which had been derived or obtained as a result of criminal activity relating to or in relation to a scheduled offence – This offence otherwise has nothing to do with criminal activity relating to a scheduled offence – Except the proceeds of crime derived or obtained as a result of that crime – All these processes or activities independently constitute offence of money laundering – Projection/claiming proceeds of crime to be untainted is not the only process or activity which constitutes offence of money laundering – Authorised officers can prosecute for money laundering only when there exists proceeds of crime – Authorised officers cannot proceed to attach and confiscate property on the basis of assumption but on the basis of credible evidence indicating involvement in process or activity with proceeds of crime – Offence of money-laundering is not dependent on or linked to the date on which scheduled offence has been committed – Relevant date is date on which person indulges in process or activity connected with such proceeds of crime. (Paras 37 to 55)
(B) Prevention of Money Laundering Act, 2002 – Section 5 – Provisional attachment order – Only Director and officers not below rank of Deputy Director can issue provisional attachment order – Authorised officer cannot resort to action of provisional attachment of proceeds of crime mechanically – Only upon satisfaction that person possesses proceeds of crime is charged with commission of scheduled offence and that there is likelihood of concealment, can the officer proceed to issue provisional attachment order – Provisional order operates for 180 days – On issuing order of provisional attachment copy of order to be forward to Adjudicating Authority – 2015 amendment has rightfully removed requirement of registering scheduled offence and also show substantial progress in investigation to pass provisional attachment order – If scheduled offence is not registered with local police it is open to ED officers to proceed with provisional attachment while contemporaneously sending information to Police – Amendment effected in 2015 in second proviso has reasonable nexus with object sought to be achieved by 2002 Act – Provision in form of Section 5 provides for a balancing arrangement to secure interest of person as well as to ensure that proceeds of crime remain available for being dealt with in manner provided by 2002 Act. (Paras 56 to 62, 65 to 70)
(C) Prevention of Money Laundering Act, 2002 – Section 8 – Attachment, adjudication and confiscation – This is a wholesome provision, not only protecting interest of person concerned, but affording him/her fair opportunity during adjudication process – Provisional attachment would operate only for a period of one hundred and eighty days – In the period between confirmation of provisional attachment under Section 8 of Prevention of Money Laundering Act, 2002 and passing of formal order of confiscation, person interested in immovable property can enjoy it – Direction under Section 8(4) to take possession of property before a formal order of confiscation is passed, merely on the basis of confirmation of provisional attachment order, should be an exception and not a rule – Fact that non-conviction based confiscation model is permissible, it does not warrant an extreme and drastic action of physical dispossession of person from property in every case which can be industrial/commercial/business and also residential property, until formal order of confiscation is passed under Section 8(5) or 8(7) of 2002 Act – Provision in form of Section 8(4) can be resorted to only by way of an exception and not as a rule. (Paras 71 to 76)
(D) Prevention of Money Laundering Act, 2002 – Sections 17 and 18 – Search and Seizure – 2002 Act is a self contained Code wherein inbuilt safeguards are present – Only Director and officers not below rank of Deputy Director can authorise officers to carry out search and seizure – Provision to record reasons shows it requires application of mind – Officer conducting search is to forward a copy of reasons recorded and materials in his possession to Adjudicating Authority in a sealed envelope – Officer seizing property is obligated to submit application before Adjudicating Authority within 30 days for retention of record – Process of searches and seizure is not only for inquiry into process of money laundering but also prevention – Search of a female person can be done only by a female – Upon seizing property concerned office to submit application before Adjudicating Authority and opportunity is to be given to concerned person to defend their property – For strengthening mechanism Parliament has rightfully dropped condition that no search shall be conducted unless there is a police report or a private complaint in relation to scheduled offence. (Paras 77 to 87)
(E) Prevention of Money Laundering Act, 2002 – Section 19 – Power to arrest – Power to arrest is on high-ranking officers – Grounds of arrest to be informed to person at the time of making arrest and copy of order along with material to be sent to Adjudicating Authority – Arrested person is required to be procedure in Special Court within 24 hours of arrest. (Paras 88 to 90)
(F) Prevention of Money Laundering Act, 2002 – Sections 24 and 45 – Indian Evidence Act, 1872 – Section 106 – Burden of Proof – This special provision regarding burden of proof in any proceeding relating to proceeds of crime under this Act would apply to stated proceeding before Adjudicating Authority and not limited to proceeding before Special Court – It is an independent body, free from control of Executive – It is ordained to deal with civil aspects of action of attachment and confiscation of proceeds of crime and not about criminality of offence under Section 3 of 2002 Act – When this provision is made applicable to proceeding before Authority, it would not be necessary to follow strict principle of standard of proof beyond reasonable doubt, as applicable in criminal trial – On establishing that there exists proceeds of crime and person in involved/linked in any process or activity connected with such proceeds, legal presumption would arise that proceeds of crime are involved in money laundering – Onus merely shifts on person facing charges to rebut legal presumption – Presumption under Section 24(b) is not a mandatory legal presumption but presumption under Section 24(a) is – Statutory provisions regarding presumptions are nothing but rule of evidence – So long as accused is entitled to show that he has not violated provisions of Act, such a legal provision cannot be regarded as unconstitutional. (Paras 92 to 103)
(G) Prevention of Money Laundering Act, 2002 – Section 44(1)(a) – Trial of offences – Offence punishable under Section 4 and any scheduled offence connected to offence under that section shall be triable by Special Court constituted for area in which offence has been committed – Section 44(1)(a) is directory in nature and Special Court may exercise judicial discretion on case to case basis after examining all aspects of matter – Section 44 is neither arbitrary nor unconstitutional – Same is consistent with legislative scheme and purposes and objects behind enactment of 2002 Act to ensure that proceeds of crime involved in money-laundering are dealt with appropriately as per special Act and all concerned involved in the process or activity connected with such proceeds of crime are prosecuted for offence of money-laundering. (Paras 104 to 114)
(H) Criminal Procedure Code, 1973 – Section 436A – Prevention of Money Laundering Act, 2002 – Section 45 – Bail – Mandate of Section 167 of 1973 Code would apply with full force even to cases falling under Section 3 of 2002 Act, regarding money-laundering offences – On same logic, Section 436A of 1973 Code could be invoked by accused arrested for offence punishable under 2002 Act, being a statutory bail – Where defect as pointed out by Court has been removed by virtue of validating Act retrospectively, then provision can be held to be intra vires provided that it does not transgress any other constitutional limitation – If by amending provision retrospectively, Parliament has removed defect or has taken away basis on which provision was declared void then provision cannot be said to be in conflict with Article 13 of Constitution – A priori, it is not open to argue that Section 45 of 2002 Act post decision in Nikesh Tarachand Shah stood obliterated from statute book as such – It was open for Parliament to cure defect and once cured, provision got revived – Observations in Nikesh distinguishing challenge to twin bail condition under PMLA from Kartar Singh v. State of Punjab dealing with TADA Act, calling PMLA less heinous than terrorism, overruled – Twin bail conditions is also applicable for anticipatory bail – Section 436A, Cr.P.C. needs to be construed as a statutory bail provision and akin to Section 167 of 1973 Code. (Paras 115 to 149)
(I) Prevention of Money Laundering Act, 2002 – Sections 50 and 45(1A) – Constitution of India – Articles 20(3) and 21 – Power of Authorised Officer to summon any person – Power entrusted to designated officials under this Act, though couched as investigation in real sense, is to undertake inquiry to ascertain relevant facts to facilitate initiation of or pursuing with an action regarding proceeds of crime, if situation so warrants and for being presented before Adjudicating Authority – PMLA is not a penal statute – Section 45(1A) clarifies that regular police officer cannot take cognizance of offence of money laundering – Provisions of Cr.P.C, and Evidence Act does not apply to the inquiry carried out by ED officers – It is a sui generis legislation, not only dealing with prevention, detection, attachment, confiscation, vesting and making it obligatory for banking companies, financial institutions and intermediaries to comply with certain essential formalities and make them accountable for failure thereof, and also permits prosecution of persons found involved in money laundering activity – Authorities under 2002 Act are not Police Officers – Ex-consequenti, statements recorded by authorities under 2002 Act, of persons involved in commission of offence of money-laundering or witnesses for the purposes of inquiry/investigation, cannot be hit by vice of Article 20(3) of Constitution or for that matter, Article 21 being procedure established by law. (Paras 150 to 173)
(J) Prevention of Money Laundering Act, 2002 – Section 63 and Schedule – Punishment for false information or failure to give information – Section 63 is procedure established by law and it has clear nexus with purposes and objects sought to be achieved by 2002 Act – Classification or grouping of offences for treating the same as relevant for constituting offence of money laundering is a matter of legislative policy – Parliament in its wisdom has regarded the property derived or obtained as a result of specified criminal activity, being an offence under concerned legislation mentioned in the Schedule – Fact that some of offences may be non-cognizable offences under concerned legislation or regarded as minor and compoundable offences, yet, Parliament in its wisdom having perceived cumulative effect of process or activity concerning proceeds of crime generated from such criminal activities as being likely to pose threat to economic stability, sovereignty and integrity of country and grouped them together for reckoning it as an offence of money laundering, is a matter of legislative policy – It is not open to Court to have a second guess at such a policy. (Paras 174 and 175)
(K) Criminal Procedure Code, 1973 – Section 154 – Prevention of Money Laundering Act, 2002 – Section 4 – ECIR and FIR – Offence of money-laundering cannot be registered by jurisdictional police who is governed by regime under Chapter XII of 1973 Code – Under Section 4 of 2002 Act, special complaint procedure is prescribed by law – Dispensation regarding prevention of money-laundering, attachment of proceeds of crime and inquiry/investigation of offence of money-laundering upto filing of complaint in respect of offence under Section 3 of 2002 Act is fully governed by provisions of 2002 Act itself – There is no need to formally register ECIR – Non-recording of ECIR does not prevent authorities from proceeding with inquiry/investigation for attachment – It is sufficient if at the time of arrest person is informed grounds on which arrest is being made – Court before whom accused is produced can call ED officers for relevant records – Being a special legislation providing for special mechanism regarding inquiry/investigation of offence of money-laundering, analogy cannot be drawn from provisions of 1973 Code, in regard to registration of offence of money-laundering and more so being a complaint procedure prescribed under 2002 Act – ECIR is not a statutory document, nor there is any provision in 2002 Act requiring Authority referred to in Section 48 to record ECIR or to furnish copy thereof to accused unlike Section 154 of 1973 Code – Non-supply of ECIR which is essentially an internal document of ED, cannot be cited as violation of constitutional right. (Paras 176 to 179)
Facts of the case:
In present batch of petition(s)/appeal(s)/case(s), Court is called upon to deal with the pleas concerning validity and interpretation of certain provisions of the Prevention of Money – Laundering Act, 2002 and procedure followed by Enforcement Directorate while inquiring into/investigating offences under the PMLA, being violative of the constitutional mandate.
Findings of Court:
Even when ED manual is not to be published being an internal departmental document issued for the guidance of Authorities (ED officials), department ought to explore desirability of placing information on its website which may broadly outline scope of the authority of functionaries under the Act and measures to be adopted by them as also the options/remedies available to the person concerned before the Authority and before Special Court.
Result : Reference answered.
The Prevention of Money-Laundering Act, 2002 (PMLA) is a comprehensive legislation aimed at preventing money-laundering, confiscating property derived from or involved in such activities, and establishing mechanisms for coordination against money-laundering, including prosecution of those involved in processes connected to proceeds of crime. (!) (!) (!) (!) (!)
The PMLA was enacted in response to international commitments under conventions like the Vienna Convention (1988) and Palermo Convention, addressing threats to financial systems, integrity, and sovereignty posed by money-laundering. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
The Act comprises ten chapters covering definitions, offences, attachment and confiscation, obligations of financial entities, summons and searches, Appellate Tribunal, Special Courts, authorities, reciprocal arrangements, and miscellaneous provisions. (!)
Amendments to the PMLA (2005, 2009, 2012, 2015, 2016, 2018, 2019) strengthen mechanisms for prevention, detection, attachment, confiscation, and prosecution, aligning with international standards like FATF recommendations. (!) (!)
The expression "proceedings" in Section 2(1)(na) of the PMLA is expansive, including inquiries by ED authorities, Adjudicating Authority, and Special Courts. (!)
"Investigation" under Section 2(1)(na) encompasses all proceedings for evidence collection by the Director or authorized authorities, interchangeable with "inquiry" for adjudication purposes. (!) (!) (!)
"Proceeds of crime" under Section 2(1)(u) includes property derived or obtained directly/indirectly from scheduled offences, or its value, including equivalents held abroad; the 2019 Explanation clarifies it covers property from any related criminal activity. (!) (!) (!)
Not all crime property qualifies as "proceeds of crime"; only property derived/obtained as a result of criminal activity relating to a scheduled offence qualifies, requiring a direct link. (!) (!)
The PMLA is sui generis, blending regulatory, preventive, and penal aspects to combat money-laundering's transnational impact. (!)
Offence of money-laundering under Section 3 involves direct/indirect attempts to indulge or assist in processes/activities connected with proceeds of crime, including concealment, possession, acquisition, use, or projecting/claiming as untainted; the 2019 Explanation clarifies "and" as "or," making each act independent. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
Money-laundering is a continuing offence tied to possession/use of proceeds, not limited to integration stage; it commences after property is derived from a scheduled offence. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
The 2019 Explanation to Section 3 is clarificatory, not expansive, aligning with Vienna/Palermo Conventions; "and" in Section 3 is interpreted as "or" to avoid frustrating legislative intent. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
Scheduled offences under Section 2(1)(y) include offences in Parts A, B, C of the Schedule; inclusion/exclusion of offences is legislative policy, not judicially reviewable for arbitrariness. (!) (!) (!) (!) (!) (!) (!)
Provisional attachment under Section 5 requires recorded reasons based on material showing possession of proceeds of crime likely to be concealed; operates for 180 days; second proviso (2015 amendment) allows immediate attachment to prevent frustration of proceedings, without prior FIR. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
Section 5 safeguards include high-ranking officer involvement, written reasons, 180-day limit, forwarding to Adjudicating Authority, and cessation on expiry or Adjudicating Authority order. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
Section 8 adjudication involves show-cause notice, hearing, and confirmation of attachment for up to 365 days or pendency of proceedings; possession under sub-section (4) is exceptional, not routine, until formal confiscation. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
Searches/seizures under Section 17 require Director/Deputy Director authorization, recorded reasons, and forwarding to Adjudicating Authority; deletion of 2019 proviso aligns with prevention focus, not requiring prior FIR. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
Search of persons under Section 18 mirrors Section 17 safeguards, with additional protections like female searches by females and witness presence; deletion of 2019 proviso upheld for preventive efficacy. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
Arrest under Section 19 by high-ranking officials requires recorded reasons, informing grounds, and production within 24 hours; valid even pre-complaint, as PMLA inquiry differs from criminal investigation. (!) (!) (!) (!) (!)
Burden of proof under Section 24 presumes involvement of proceeds in money-laundering upon establishing foundational facts (existence of proceeds, link to scheduled offence, person's involvement); rebuttable by accused via evidence. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
Special Courts under Section 44 try money-laundering offences independently from scheduled offences; trials proceed separately, with jurisdiction based on money-laundering location; proviso in Clause (a) is directory. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
Bail under Section 45 requires twin conditions: opportunity for Public Prosecutor opposition and court satisfaction of non-guilt and non-likelihood of reoffending; applies to anticipatory bail; Section 436A CrPC provides relief after half maximum imprisonment. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) [p
JUDGMENT :
A.M. Khanwilkar, J.
Table of Contents
| Particulars | Paragraph No(s). |
| Preface | 1(a)-(d) |
| Submissions of the Private Parties | |
| Mr. Kapil Sibal, Senior Counsel | 2(i)–(xxiii) |
| Mr. Sidharth Luthra, Senior Counsel | 3(i)–(iii) |
| Dr. Abhishek Manu Singhvi, Senior Counsel | 4(i)–(ix) |
| Mr. Mukul Rohatgi, Senior Counsel | 5(i)-(iii) |
| Mr. Amit Desai, Senior Counsel | 6(i)-(iii) |
| Mr. S. Niranjan Reddy, Senior Counsel | 7(i)-(ii) |
| Dr. Menaka Guruswamy, Senior Counsel | 8(i)-(v) |
| Mr. Aabad Ponda, Senior Counsel | 9(i)-(ii) |
| Mr. Siddharth Aggarwal, Senior Counsel | 10(i)-(iii) |
| Mr. Mahesh Jethmalani, Senior Counsel | 11(i)-(iii) |
| Mr. Abhimanyu Bhandari, Counsel | 12(i)-(iv) |
| Mr. N. Hariharan, Senior Counsel | 13 |
| Mr. Vikram Chaudhari, Senior Counsel | 14(i)-(v) |
| Mr. Akshay Nagarajan, Counsel | 15 |
| Submissions of the Union of India | |
| Mr. Tushar Mehta, Solicitor General of India | 16(i)-(lxxx) |
| Mr. S.V. Raju, Additional Solicitor General of India | 17(i)-(lxvi) |
| Consideration | |
| The 2002 Act | 19-22 |
| Preamble of the 2002 Act | 23-24 |
| Definition Clause | 25-36 |
| Section 3 of the 2002 Act | 37-55 |
| Section 5 of the 2002 Act | 56-70 |
| Section 8 of the 2002 Act | 71-76 |
| Searches and Seizures | 77-86 |
| Search of persons | 87 |
| Arrest | 88-90 |
| Burden of proof | 91-103 |
| Special Courts | 104-114 |
| Bail | 115-149 |
| Section 50 of the 2002 Act | 150-173 |
| Section 63 of the 2002 Act | 174 |
| Schedule of the 2002 Act | 175 & 175A |
| ECIR vis-à-vis FIR | 176-179 |
| ED Manual | 180-181 |
| Appellate Tribunal | 182 |
| Punishment under Section 4 of the 2002 Act | 183-186 |
| Conclusion | 187(i)-(xx) |
| Order | 1-7 |
PREFACE
1. In the present batch of petition(s)/appeal(s)/case(s), we are called upon to deal with the pleas concerning validity and interpretation of certain provisions of the Prevention of Money-laundering Act, 20021[For short, 'PMLA' or 'the 2002 Act'] and the procedure followed by the Enforcement Directorate2[For short, 'ED'] while inquiring into/investigating offences under the PMLA, being violative of the constitutional mandate.
(a) It is relevant to mention at the outset that after the decision of this Court in Nikesh Tarachand Shah vs. Union of India & Anr., (2018) 11 SCC 1 the Parliament amended Section 45 of the 2002 Act vide Act 13 of 2018, so as to remove the defect noted in the said decision and to revive the effect of twin conditions specified in Section 45 to offences under the 2002 Act. This amendment came to be challenged before different High Courts including this Court by way of writ petitions. In some cases where relief of bail was prayed, the efficacy of amended Section 45 of the 2002 Act was put in issue and answered by the concerned High Court. Those decision(s) have been assailed before this Court and the same is forming part of this batch of cases. At the same time, separate writ petitions have been filed to challenge several other provisions of the 2002 Act and all those cases have been tagged and heard together as overlapping issues have been raised by the parties.
(b) We have various other civil and criminal writ petitions, appeals, special leave petitions, transferred petitions and transferred cases before us, raising similar questions of law pertaining to constitutional validity and interpretation of certain provisions of the other statutes including the Customs Act, 19624[For short, 1962 Act' or 'the Customs Act'], the Central Goods and Services Tax Act, 20175[For short, 'CGST Act'], the Companies Act, 20136[For short, 'Companies Act'], the Prevention of Corruption Act, 19887[For short, 'PC Act'], the Indian Penal Code, 18608[For short, 'IPC'] and the Code of Criminal Procedure, 19739[For short, 'Cr.P.C. or 'the 1973 Code'] which are also under challenge. However, we are confining ourselves only with challenge t
(1) Offence of money laundering is an independent offence regarding process or activity connected with proceeds of crime which had been derived or obtained as a result of criminal activity relating t....
The court ruled that in economic offenses, particularly money laundering, anticipatory bail is rarely granted due to the grave nature of allegations and potential interference with investigations.
The absence of recorded reasons prior to issuing a provisional attachment order under the Prevention of Money Laundering Act renders the order invalid.
The main legal point established in the judgment is that the power of further investigation can be directed until trial commences and can be exercised suo motu by the Magistrate. The court also clari....
Conviction under the PMLA requires clear evidence linking accused to proceeds of crime; absence of such evidence results in acquittal.
Section 3 is dependent on illegal gain of property as a result of criminal activity relating to a scheduled offence.
The conditions for granting bail under the Prevention of Money Laundering Act are mandatory, requiring the court to be satisfied of the accused's non-guilt and lack of likelihood to commit further of....
Proceedings under the Prevention of Money Laundering Act are independent and can be based on continuing laundering activities, regardless of the scheduled offence's date of commission.
The court held that the petitioner is entitled to bail under Section 45 of the Prevention of Money Laundering Act, 2002 as there were no reasonable grounds for believing that she had committed an off....
Money-laundering is a continuing offence, so long as tainted property is enjoyed, possessed, orprojected as untainted.
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