Thread by @lawbarandbench

Supreme Court continues to hear the PMLA petitions.
Bench of Justices Khanwilkar, D Maheshwari and CT Ravikumar hears SG Tushar Mehta

#SupremeCourt #SupremeCourtofIndia #PMLA

SG Tushar Mehta argues on the importance of knowledge of the proceeds of crime for it to be a offence under PMLA.

Mere possession is not an offence. Knowledge is important too.

#SupremeCourt #SupremeCourtofIndia #PMLA

India's evaluation under FATF is scheduled for next year

#SupremeCourt #SupremeCourtofIndia #PMLA

Different countries have different rules on knowledge. In Australia, Anyone who deals with proceeds of crime is criminal. In many jurisdictions, mere possession itself is a crime.

#SupremeCourt #SupremeCourtofIndia #PMLA

SG Tushar Mehta refers to Rohit Tandon judgment and Halsbury’s Laws of England

indiankanoon.org/doc/13208976/

#SupremeCourt #SupremeCourtofIndia #PMLA

SG Refers to the concept of crime as per Kartar Singh judgment.

SG by example says, 377 was a crime in the past. But in view of social change, Supreme Court felt that it need not be a crime.

#SupremeCourt #SupremeCourtofIndia #PMLA

Who decides a crime. Whether a particular conduct should be crime or not has to be decided by the Parliament.

A statute should be Constitutional compliant and NOT CRPC compliant.

#SupremeCourt #SupremeCourtofIndia #PMLA

SG Tushar Mehta refers to Subramanian Swamy case and judgment of Khanwilkar J

#SupremeCourt #SupremeCourtofIndia #PMLA @Swamy39

SG: FATF also deals terror financing also. Suitable amendments were made in TADA and FERA legislations.

#SupremeCourt #SupremeCourtofIndia #PMLA

SG now refers to Part 3 of his notes on use of words conjuctively.

In Sanjay Dutt case, argument was, if i am carry the arms without the ammunition, then i am not guilty of Arms act.

There Supreme Court held that otherwise.

#SupremeCourt #SupremeCourtofIndia #PMLA

SG: Quotes Regina v Oakes, NALSA v UOI, A 51 & Kesavananda.

domestic courts are under an obligation to give due regard to the intl. conventions and norms for construing the domestic laws, more so, when there is no inconsistency between them and there is a void in domestic law

SG now argues on compartmentalization of offence into category of Cognizable and non-cognizable as defined in CrPC.

CRPC is applicable when there is no Special Act

#SupremeCourt #SupremeCourtofindia #PMLA

As far as officers empowered under Special Acts are concerned their power to arrest is governed by Special Act and is NOT governed by the general provisions of CRPC.

#SupremeCourt #SupremeCourtofindia #PMLA

In PMLA, Section 19 provides safeguards on powers to arrest.

Director or designated officer only can arrest.

In PMLA, whether the offence is cognizable or non cognizable is irrelevant.

A police officer can arrest under Special Laws too (gives example of Drugs Act)

#SupremeCourt #SupremeCourtofindia #PMLA

SG: The “Authorities” [as defined under section 48 and 49 of PML Act] who exercise the power of investigation are not “police officers” as held by the Constitution Bench judgment in Ramesh Chandra Mehta v. State of W.B

#SupremeCourt #SupremeCourtofindia #PMLA

The question of offence being either “cognizable” or “non-cognizable” arises only for the limited purpose of power to arrest with or without warrant.

#SupremeCourt #SupremeCourtofindia #PMLA

Court Breaks. SG to commence at 2 PM

[Matter to resume, Bench assembles]

Two of judgments of HC to point out what view is taken: SG

SG: [reads out from judgment]
Section 90 there is a power of arrest conferred on someone else, whether cognisable non cognisable doesn't matter

SG: [goes thru relevant CrPC definitions for police officer, investigation]

SG: Section 45 also suitably amended for this
Have quoted whatever is relevant, either for me or other side, have not been selected

SG: Mischief sought to be remedied by deleting word cognisable [in reference to powers to arrest anyone]

SG: Police officer not mentioned [speaks of inconsistencoes now removed]

SG: This never happened [allowing of state police officers to take action]

SG: CrPC provided for only magistrate or police to investigate offences under act
That has been cured by defining investigation

[Reading out still]

SG: Petitoners misguiding themselves on deleting of term, if non cognisable even director cannot arrest
Specific provisions where only director can arrest
Bench : What it meant was local police cannot take cognisance of offence you mean?
SG: Yes

Bench: Here cognisable refers to different scenario, since it says notwithstanding anything in crpc

SG: My submission is that use of cognisable is redundant
Bench: so cognisable but not under scheme of CRPC?

Bench: Only officer under PMLA can take action ... Act loosely worded not non contextual in terms of this

SG: Will read relavnt part as far as Section 45 is concerned

SG: For intention of legislature, what is relevant is what acts saya for cognisance. [Reading out]

Bench: Precisely what we discussed earlier.
SG: [reads out more]
Powers of survey, search seizure, summons, retaining property etc on agency equips them with all necessary tools for effective probe without aid of police

SG: Enforcement officials don't need sanction of local police
Same code of criminal procedure doesn't apply

SG: Nothing in act to say such powers need prior authorisation from court
Powers do not require prior approval in each case, all offences cognisable so anyone believed to be guilty may be arrested without warrant for arrest

SG: This cognisable offence cannot be applied with like in IPC
Refering instead to officials under PMLA
Explanation proposed to be inserted to clarify that offences cognisable, non bailable notwithstanding other codes

SG: [reads out need to have special powers towards probing money laundering, removing procedure for needing FIR, notice etc as evidence can be wiped off]

SG: Any interpretation by authorities in the otherwise will defeat the object
At stage of action, reasoned order is given but ko FIR or notice unlike conventional Offences

SG: Necessary to point out as genesis of the matter, kindly then to page 32 of my note, there is a chart even

SG points out several HC judgments in favour
SG: Now a new round started, and how in front of my lords it has been abused
One Raj Bhushan Dixit filed petition before Delhi HC, co-accused in serious exam, praying for interim bail and protection and challenged PMLA

SG: Kindly turn to Sibals volume
Those I've cited are well-reasoned final judgments not interim views

SG: Para 34, we pointed out that the offence is cognisable
Not reading it, this was placed for consideration

SG: [reading out judgment] "no positive indication that offences became cognisable"

SG: Whatever is not contrary to CrPC will apply, DK Basu guidelines will apply

SG: [reads out more judgments]

SG: Once a person in custody under authority of competent court, legality cannot be challenged, has to file habeas writ

Another writ petition filed in matter, page 3909

SG: Kindly see 3914, transfer Petitons and SLPs against Dixit

SG: Lordships may kindly see 65,

SG: Will read two views of two diff HC, since contradictory verdicts come before you
single-Judge of Delhi HC and division bench of Bombay HC

SG: any decisions explaining in serial what investigation means and is
Kindly come to 110

SG: Section 161(1) falls under chapter 12 relating to telling police about investigation.

*many *detail

SG: Authorirsed officer under ED or customs is not undertaking investigation under section 12 of code but they enjoy certain powers

SG: being alerted of charges etc defeats object of Act in our view

SG: Have no quarrel with proposition that CrPC applies where PMLA doesn't
But their provisions cannot be applied together

SG: Nothing contrary in PMLA so 167 does apply, we produce accused under competent court under it for bail

SG: Interestingly, petitioner Guarav Kathuria is a laywer but his grounds [reads out]

Under section 44 of PMLA, complaint concludes to completion of investigation

"Legislature did not intend to make the arrest non-cognisable but only make clear role and powers of police"

Even if we go by CrPC, offences are cognisable, don't go by DM statement loosely worded

If legislature really intended to make offences non-cognisable z they would have changed heading

SG: Offence under act being punishable for than 5 years becomes cognisable
I respectfully indicated that the argument is thus redundant

SG: "Provisions of PMLA will override Code"

"Investigation under this act does not give any role to the police ... Section 19 has specific provisions, Court's will have implication"

[Reads out from submissions regarding similar powers of Customs and excise officers ]

Bench: every point before us had already been submitted before Bombay HC

SG: Crpc Ch 12 in entirety doesn't apply, amendment was brought to remove other anomalies

[Bench rises for the day]