Thread by @lawbarandbench

#SupremeCourt hears petitions pertaining to issues ranging from the Enforcement Directorate's (ED) powers for taking on investigations, issuance of summons, carrying out arrests, etc., and the constitutional validity of the #PMLA

Sr Adv Kapil Sibal mentions the Karti Chidambaram plea to travel abroad @KartiPC

SG Tushar Mehta: I have no objection if it subject to previous terms and conditions (deposit of Rs 1 Crore)

#SupremeCourt #PMLA

Sibal: Please let the same conditions everytime prevail since he keeps travelling abroad

SG: I have never been unreasonable with him

Justice Khanwilkar: We are deciding the matter once and for all

SC: we are permitting @KartiPC to travel abroad on similar conditions as earlier imposed. Deposit of passport to be carried out after he is back in India.

Sibal: Now resuming the main matter. One feature of criminal justice system is oversight by the judiciary. This is the heart of protection under Article 21 #PMLA

Sibal: This oversight mechanism is missing in PMLA. The case diary has to be presented before the judge If he so wants

SC: We cannot deviate probe or direct probe in a particular manner. Oversight is there so that procedure established by law is followed

Sibal: because illegitimate money is sought to be made legitimate money, moment that happens, it's happened to ED authorities. Then they have a prima facie case

SC: Think of 302 murder case, ED will not come into play. It's only when an illegitimate income is sought to be made legitimate #PMLA

Sibal: There is a pattern after perusing various statutes. If it's customs act, and goods are seized at custom point, at that entire matter is handed over to local police.. this is under Excise Act

Sibal: Section 50 of PMLA does not deal with accused but reporting entity. This cannot be. It has nothing to do with statement of the accused. What ED does is calls accused, records statement and gives it to the authority investigating predicate offence #PMLA

Sibal: Then that statement is used to convict the accused. #PMLA

Sibal: Fault lines lie in the fact that if you say Sections 154 and 155 does not apply state will have to necessarily say that Section 50 will apply.

SC: Power to arrest is for guilty of offence. How do we know guilty of offence ?

Sibal: till all provisions of Section 50 is complied with.

Sibal: What to do parliament has been passing such laws..

Justice Khanwilkar: This law was passed in 2002, (laughs)

#SupremeCourt #PMLA @KapilSibal

Justice Khanwilkar: for probe and trial, you have to refer to CrPC

Justice Dinesh Maheshwari: we have to take the scheme as a whole

Justice Khanwilkar: the persons who implemented the act haven't understood it ?

Sibal: it takes months to get hold of it it's very complicated

Sibal: there cannot be a carte blanche procedure for investigation. When accused signs his statement it becomes a judicial proceeding but it is not so in trial. It has no evidentiary value. . How can it apply to a witness let alone an accused. This is no proceeding

You summon a accused and record statment it will be hit by right under Article 21, 20(3). An interconnection exists. Right to silence given to an accused. Whole concept of truth telling has to be limited to Section 13 of PMLA : Sibal #PMLA

Sibal: please see sections 3(1)(3) and 3(1)(5) of the CrPC with me. It's about oath being administered to the accused. What they do is in every ED investigation they say they are not answering. He has a constitutional right to not answer. That's part of Art 21

Sibal: now i turn to what Justice Nariman had held. A departure was made by Justice Nariman while dealing with NDPS. Because it is a penal statute it was held officers are police officers.

Sibal: I have shown PMLA is penal statute. PMLA and NDPS is correlated. Now issue is ED officers police officers?

Sibal: Please see that to determine this we have to look at the object, nature and purpose of the statute. #PMLA

Sibal: prosecution and punishment has to be separate. Judge will have the confession under section 50 and convict the accused and for the predicate offence also. That is why section 50 cannot be used the way it is being used #PMLA

Sibal: In PMLA we deal with pure investigation but power of attachment of property is not power of investigation. Once offence is committed.. they cannot probe.. and they will have to hand it over the the police. That's the constitutional scheme here #pmla

Sibal: the officer asks accused to make a statement. That exercise of power is also concerned with exercise of power by police officer #PMLA

Sibal: PMLA Act is a purely penal statute when compared to statutes like the Customs Act, 1962; Sea Customs Act, 1878; Central Excise Act, 1944 or GST Act, 2017, which are fiscal statutes dealing with levy and collection/ recovery of taxes. Let me read customs act now

Justice Khanwilkar: we are getting the bare act, please wait

Sibal: it should be on the table

Justice Khanwilkar: its make shift arrangement. I have it, brother Ravikumar doesn't have it

Sibal: omicron wave is getting better, courts can open

Justice Khanwilkar: yes certainly

Sr Adv Sibal highlights the comparison between #PMLA and customs act

Sibal now takes court through Section 45 of PMLA
#PMLA

Hearing to resume tomorrow
#supremecourt #PMLA