Thread by @LawBeatInd

#SupremeCourt to continue hearing a batch of petitions challenging provision of Prevention of Money Laundering Act.
#PMLA
#MoneyLaundering

Senior Advocate Abhishek Manu Singhvi appearing for the petitioner- In terms of the act: Use, Projecting and Claiming it to be untainted are three heads, without your Lordships finding these three heads it would be stretching of an offence to bring Money Laundering.

Singhvi: To suggest it to be diluted (the three heads) would not be a correct way of interpreting it.
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Singhvi- The entire uniqueness of the PMLA is the entire heart and soul of the Money Laundering and you cannot presume the heart and soul.
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Justice CT Ravikumar: If there is some money that is proceeds of crime and he uses it, then projecting and Claiming will be one part.

Singhvi- Yes, Milords.

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Singhvi: A draconian approch in this Act should not be allowed.
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#MoneyLaundering

Singhvi: I'm pressing for complete striking down but there is an alternative for your Lordships to decide.
Where the ED can search place or person without an FIR in the predicate offence, alternatively without doing any investigation on the mere registration of FIR it can search.

Singhvi- The issue of Section 5, the core point is here that the second proviso to 5(1) is either completely unconstitutional or significantly read down. It allows emergency attachment of any property of any person without reference or anchoring to any particular case.
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Singhvi- The most important area where it is abused, X has a property and he has this property for 20 years, the FIR of predicate offence registered now today, on what basis the ED proceeds that 20 year old house shall be attached. TC (Crl) 4/2018 it is the direct case.
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Singhvi- Milords You are frustrating proceedings under this act.
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I'll be coming on the point of value, if a property is of 200 Crores and the offence is of 10 Lakhs they will attach the property to that value but effectively nobody will touch that property, Singhvi added.

Singhvi- Another point is that provisos can never travel beyond the section and the act but in this case it travels beyond the Act also. (The proviso be read in relation to the rule or section to which they are tagged as a proviso)

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Singhvi while referring to a judgment of Justice Krishna Iyer, before joining the profession I used to write for a legal weekly and he liked article so much that he wrote me a letter and I had to take it to my father to understand it as he wrote it in such a flourishing language.

Justice Khanwilkar- We'll continue at 2:00 PM.

Singhvi continues arguing over The issue of taking possession without any adjudication, we are not talking about attachment right now, we are talking about possession without adjudication, it's at the threshold.
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It amounts to takeover of valuable property right with one statutory confirmation. There is no temporal limit to it, the possession may continue till 365 days even if the chargesheet is filed earlier, and may continue beyond 365 days if it is not filed, Singhvi added.
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Singhvi argued that, you are attaching property for a moment let's not go into that, but you are taking possession also, what will be more draconian than this.
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#MoneyLaundering

Singhvi- It is exceeding the limits of proportionality, you have enough safeguards then why do you require this draconian possession.
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Justice Dinesh Maheshwari- If these are proceeds of crime why that would be allowed to be used at all.

Singhvi- Yes but what is the purpose of keeping it idle for 3 years. Can't it be tailored.

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#MoneyLaundering

Singhvi- In 90% of the cases there is no interest of the government that I can see, in operating factories, living houses...the only interest is that there should be size so that in case of conviction, confiscation can happen.
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#MoneyLaundering

Justice Khanwilkar- There is inbuilt mention in section 8 until the trial is over there is no confiscation and without possession the property cannot be confiscated.
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Singhvi- Milords this possession is unconstitutional unless such possession is shown that it is necessary.

J Khanwilkar- So you are saying it has to be in rarest of rare case the possession is taken.

Singhvi- Exactly, it has to be an rare exception.
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Singhvi- Now I have section 45 for last 45 minutes.
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Singhvi- The maximum punishment for PMLA is 7 years and with an exception to NDPS it is 10 years, Your Lordships has more draconian provisions in IPC and other laws.
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#MoneyLaundering

Singhvi- Look at the injustice of extreme nature, when the act was passed some alignment would have been done. There are several bailable offences and when they come into PMLA it is barred. This is manifestly arbitrary. The PMLA crime cannot be more serious than of original crime

J Khanwilkar- we'll continue tomorrow only 5 minutes are left.

Singhvi- I'll only take 15 minutes tomorrow.

The matter will be taken up at 10:30 AM tomorrow.

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#MoneyLaundering