Thread by @lawbarandbench

PMLA petitions before Supreme Court: Menaka Guruswamy argues.

@MenakaGuruswamy #SupremeCourt #SupremeCourtofIndia

Senior Advocate @MenakaGuruswamy lays down statistics of cases before @dir_ed.

"I will not get a copy of the ECIR, I will not get a copy of the documents, the entire process i repeat is the punishment"

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@MenakaGuruswamy: 220 cases where the predicate offence is not known.

Khanwilkar J: Where you have got these statistics

MG: This is from the Ministry of Finance Report.

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Justice Khanwilkar: We cannot test the law on performance of the Executive or the Police or the inefficiency and its inability to take the prosecution of logical end.

MG: Therefore i started my arguments on Constitutionality of the provisions

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MG: Now quotes cases of appreciation of evidence, inadequacies of criminal trial.

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Senior Advocate MG quotes Draft Rules of Practice: Reference to Statements made with 161, 162 of CRPC.

Quotes 1838 judgment in Reg v. Hodge.

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-@MenakaGuruswamy quotes Vineet Narain Judgment.

ED does not have a manual for investigation, is not following CRPC provisions. There is a need for investigation manual.

Supreme Court has highlighted this in 1998.

Menaka Guruswamy: Vineet Narain was the first judgment i worked as a lawyer with my Senior Ashok Desai. Its imprinted in my mind.

#SupremeCourt #supremecourtofindia @MenakaGuruswamy

25 years ago this journey started which your lordships have started.

We need to have a investigation manual. Quotes checks and balances. Its important to have checks and balances to ensure Directorate functions with complete guidelines.

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Police Manual is a Government publication and cannot be considered as a confidential.

Menaka Guruswamy argues that continuous disregard by ED to not give Investigation Manual is not right.

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- @MenakaGuruswamy Whether its the CBI Manual or Police or Income Tax Manual, Supreme Court has opined that this is a Government document and has to be made available to all.

- ED continues to not have an investigation manual. #SupremeCourt #supremecourtofindia @dir_ed

When compared to CRPC standards, a much higher standard is applied in PMLA.

This has enabled the State to bypass the predicate Act and use the provisions of PMLA.

#SupremeCourt #supremecourtofindia @dir_ed

- Menaka Guruswamy now gives a comparison between SEBI, UAPA and others Acts.

Even in UAPA (which is under terrorism, a much senior offence), attachment can be made POST conviction.

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Justice Khanwilkar: But provisional attachment can be made even in UAPA.

@MenakaGuruswamy - In UAPA, possession doesn't change when attachment is done. Here possession changes. Thats the important change in PMLA.

#SupremeCourt #supremecourtofindia @dir_ed

Institutional deficiencies: If i want to challenge the initial order, i have to go to the Appellate tribunal.

The Appellate Tribunal chairperson hasn't been filled up or members retire. This is the case of adjudicating authority. #SupremeCourt #supremecourtofindia @dir_ed

- @MenakaGuruswamy now quotes judgment of Justice Khanwilkar & Maheshwari in Gopalakrishnan vs State of Kerala

Right of accused to petitioner to obtain copies of the same, the defence side was allowed ..

#SupremeCourt #supremecourtofindia @indiankanoon
indiankanoon.org/doc/188011203/

Menaka Guruswamy concludes by arguing

"not giving me copy of ECIR, by not giving me contentions of investigation, this violates principle of FAIR TRIAL"

#SupremeCourt #supremecourtofindia @dir_ed @MenakaGuruswamy

Fairness of Investigation and Fairness of Trial will start by giving me copy of the ECIR, by having an investigation manual which my lords have protected.

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Senior Advocate Aabad Ponda starts his arguments.

Ponda to argue on the aspect of the vires of Section 50(3) PMLA in the context of Special laws only

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There are four statutes similar to PMLA which do not take the CRPC route

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Ponda distinguishes between FERA, Customs Act, Sea Customs and PMLA.

The normal rule in PMLA and difference is there must be an offence registered under the predicate law. This is the differnce between PMLA and other acts.

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Ponda argues the legislature must take into account the judgments of the Supreme Court when they have drafted PMLA.

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Ponda quotes Ramanlal Bhogilal Shah vs D. K. Guha

indiankanoon.org/doc/829715/

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Ponda now quotes
Shyamlal Mohanlal vs State Of Gujarat and
The State Of Bombay vs Kathi Kalu Oghad

indiankanoon.org/doc/1861858/
indiankanoon.org/doc/1626264/

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Justice Khanwilkar: If an predicate offence is registered, does that mean you will not produce documents

Ponda: Under Article 20(3) the protection is not only available for oral statements but also production of documents.

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Justice Dinesh Maheswari: Evidence Act is not ruled out in PMLA proceedings, correct?

For purposed of S. 106 of Evidence Act, arent you not bound to disclose the facts that are in your knowledge?

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Justice Maheshwari: For example, if you are charged of not travelling without a ticket in train, the onus of the proving that you have a ticket is on you.

Khanwilkar J: Section 50 of PMLA if for process of investigation

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Ponda: Section 106 does not apply during the process of investigation. It only applies in Trial.

I am only arguing that you cannot compel the person at the stage of investigation.

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Ponda: @dir_ed arrests when someone is not co-operating.

If ED summons a person, one is bound to appear. Once i appear, i am coerced to confess, otherwise i am arrested or my remand is extended on the ground that i am not coperating

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Khanwilkar J: Is it your argument that your right to remain silent is taken away by Section 50 of PMLA?

Ponda: Yes

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My only submission, the PMLA has to follow Ramanlal Bhogilal

Law says under A 20 (3)
- Am bound to appear if summoned
- Bound to give statements or docs that are non incriminating
- Once incriminating questions are asked, i can remain silent

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Ponda now quotes Section 63 of PMLA.

If i dont answer any question, they can fine me Rs. 10,000. If i dont answer 100 questions, i can be fined 10 Lakhs.

These are threats under the Statue that make direct inroads into Article 20(3)

Ponda now quotes Rule 11 of PMLA rules 2005.

While summoning, penal provisions kick in. Consequences is prosecutor, judge and my opponent.

If you see Section 63(3) PMLA Act, the very officer will decide the quantum of punishment.

Ponda quotes Section 69 PMLA. Each of these are linked to Section 50(3).

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Ponda: If i dont answer 1000 questions, fine can be imposed is Rs. 1 crore

I cant refuse to appear because i am summoned. If i dont answer, i am fined

The protection under A 20(3) of not answering non incriminating questions is not available

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Ponda: Even though PMLA may be a special case, you cannot have a one sided investigation under the compulsion of statue and there is a presumption.

The man is crippled before he enters trial

There is no element of voluntariness and an important facet of A. 20(3)

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Supreme Court now requests Senior Advocate Ponda to conclude.

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Ponda concludes. Senior Advocate Siddhart Agarwal to commence his arguments after lunch.

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Senior Advocate Siddhart Agarwal begins his arguments on retrospective applicability of PMLA

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SA now quotes CIT vs Vatika Township

"law looks forward not backward"

indiankanoon.org/doc/35745659/

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SA gives an illustration - If a public servant is caught red handed while accepting a bribe, the bribe amount is proceeds of crime then itself, while the offence is a schedule offence.

Laundering is the separate offence ED is concerned about.

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SA submits, prior to 2005, there was no PMLA and there was no schedule. Crimes were being committed, fruits of those crime were being generated. But they were not being considered under PMLA

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Whether it's NDPS, MCOCA, Wildlife Act created a mechanism to deal with proceeds of crime.

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What is proceeds of crime?

SA reads out the definition. Unless and until there is proceeds defines itself as proceeds of crime, its not an offence under Section 3 of PMLA.

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A cheating offence committed under 2003, is incapable of being an offence under PMLA, 2005.

The nature of the proceeds of cheating in 2003, is not proceeds of crime under this definition of Section 3 under PMLA, 2005.

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Justice Dinesh Maheshwari -What is the status of proceeds of crime which was caused before 2005?

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SA: No persons should be allowed to take the advantage of his wrong doing.

Gives an illustration of cheating and buying a property in 2004. State is entitled to claw back the proceeds of this crime. There were specific disabilities known to the state, known to the accused.

SA: Here, we are allowing additional disabilities not known to the state or the accused.

In the above illustration, the disability in 2004 was that the property would be taken away. PMLA introduces new disability.

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Supreme Court adjourns the PMLA matter and will continue to hear on Tuesday, February 22.

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