Thread by @LawBeatInd

A 3-judge bench of the Supreme Court will continue to hear today petitions challenging various provisions of the PMLA.
#SupremeCourt
#PMLA

Yesterday, Senior Advocate Kapil Sibal had made submissions before court on the interpretation of Section 50 PMLA and how it was a penal statute and the officer under it are police officers.

Read the thread here:

https://twitter.com/lawbeatind/status/1488373970365972480?s=24

Bench assembles.

Sibal begins his submissions.
Sibal asks court to refer to Section 19, he wishes to take court through the background of the pleas before it, and why they have been filed.

Sibal: The moment a person was arrested, he went to the High Court saying that the procedure has not been followed as a Magistrate was not approached.
Thus, habeas corpus petitions were filed.

Sibal now takes court through the point whether PMLA offences are cognizable.

Sibal refers to Gurucharan Singh vs. Union Of India & Ors wherein an application for bail was filed.

Sibal refers to para 38 and 39 of the judgment.

Sibal now refers to a Gujarat High Court judgment in Mahender Pal case.

Court: Sibal, just wondering how many judicial hours have been invested in this case?
Sibal: Its a lawyers' paradise, its also a bureaucrats' paradise.
Sibal: This is a 'belagaam ghoda', there is no restraint

Sibal: This case should thus be dealt with as soon as possible.
Justice Khanwilkar: That is why we insisted that this matter should go on.

Sibal now refers to Virbhadra Singh & Anr vs. Enforcement Directorate & Anr of the Delhi High Court.

Sibal: All these cases show that an accused was called to make a statement under Section 50.

Court asks Sibal to give a gist of all the judgments he is citing for ready reference.

Sibal concludes. Senior Advocate Sidharth Luthra begins with his submissions.

Luthra: The issue is two-fold.
When we deal with the ambit of criminal procedure it has to be in consonance with Article 21.

Luthra: There must be some procedure established by law, there must be a statutory of delegated legislation and the law must pass the constitutional test.

Luthra: The PMLA gives certain investigative powers, which allow an investigator to carry out investigation in terms of Section 2 (na).

Luthra: Court must also keep in mind Section 2 (h) of the CrPC.

Luthra: Whether it be an officer under PMLA or CrPC, the aim is to collate evidence, unlike a private complaint procedure.

Luthra refers to S. 200 CrPC.

Luthra: Therefore my lord, my submission is when the process is the same and both investigations culminate in S 204, can we be deprived of the personal safeguards.

Luthra refers to S. 2(d) CrPC which defines a complaint. He further refers to the explanation given under the said provision and S. 155 CrPC.

Luthra: Whether it is cognizable or non-cognizable offence, the power does not vary. And the test that the charge-sheet implies that the officer is a police officer or not, will not apply.

Luthra also refers to the case of Toofan Singh.

Luthra draws parallels between NDPS Act and PMLA.

Luthra tells court that there are two sets of regimes that overlook the functioning of the police officers. The CrPC and the state regimes/rules.

Luthra says there is no procedure to trigger the investigation under the PMLA, how it can be initiated.

Luthra points out the provisions under the CrPC which would apply.
Court says Sec 154 will not apply.

Luthra refers to Sec. 8 which deals with adjudication.

He says there is no reference to s.19 which deals with the power of arrest.

Justice Maheshwari asks Luthra if Section 15 can be a triggering point for an investigation.

Luthra refers to Chapter IV, Section 11A and 15.

S. 15 deals with procedure and manner of furnishing information by reporting entities

Luthra now refers to Section 12AA (3).

Court asks Luthra to focus on the information to be furnished before court so that bail can be granted.

Court breaks for lunch, hearing to continue at 2PM.

Hearing resumes.

Senior Advocate Luthra continues submissions.
He refers to a RBI Circular on threshold for reporting transactions over a particular amount by the banks.

Referring to the S.16, 17 Luthra says the existence and registration of predicate crime becomes essential.

Court clarifies that S.155 CrPC is not attracted to proceedings under PMLA.

Luthra now refers to S. 159 of CrPC. He says this is crucial as this is part of the judicial oversight over investigation and my right to fair investigation.

Luthra moves on to S.172 which talks about entries into the case diary about details of the investigation.

Luthra says the power of search and seizure are all part of investigation.
Court disagrees with his submission.

Court says that if there is an express provision on the investigation of crime, it must be pointed out before it.
Court adds that provision on enquiry and adjudication cannot be confused with that on investigation.

Luthra now submits that S.50 (3) destroys the provision of Article 20.

Luthra now begins his submission on the Article 21 aspect.

He says Art 21 presupposes law in the context of fundamental rights.
Luthra: Can we have a domain where personal liberties are relying on presumptions under Section 24 of the PMLA.

Luthra says PMLA does not empowerment to create procedural law constraining a person's liberty.

He adds that when there is no specific procedure, there is not question to meet the demands of Articles 14, 19, 20 and 21.

Luthra relies on the case of Bidi Supply Company v. Union of India.

Power of investigation is only prescribed under Sec 50, then recourse has to be made to CrPC, the ED manual cannot be relied upon: Luthra

Luthra relies on K.P. Varghese vs The Income Tax Officer, Ernakulam.

Bench rises. Court to continue hearing Senior Advocate Luthra tomorrow morning.