PMLA review: Supreme Court asks Centre, petitioners to frame issues for decision

The Supreme Court on Wednesday asked the Centre and petitioners to frame issues to be adjudicated in a challenge to a verdict which upheld the Enforcement Directorate’s powers to arrest and attach property of an accused.

Appearing before a bench of Justices Surya Kant, Ujjal Bhuyan and N. Kotiswar Singh, solicitor-general Tushar Mehta, appearing for the Centre, said the hearing on the review petitions cannot go beyond the two specific issues flagged by the bench which issued notice on the petitions in August 2022. Senior advocate Kapil Sibal, appearing for the petitioners, said the matter required to be referred to a larger bench.

The court posted the matter for 6 August and said the hearing would continue on 7 August if required.

Mehta submitted that the bench, which considered the review petitions for admission in August 2022, issued notice only on two aspects — the supply of the ECIR (Enforcement Case Information Report) copy to the accused and reversal of the burden of proof under Section 24 of the Prevention of Money Laundering Act (PMLA).

The solicitor-general said the Court, however, did not expressly mention the two aspects in its order that followed the hearing, and the Centre filed an affidavit to that effect the next day to avoid any future controversy. Mehta contended that the petitioners, too, hadn’t disputed the Centre’s affidavit. Sibal said the Court’s order would have primacy over the government’s affidavit.

Justice Kant, on the other hand, expressed dissatisfaction with the draft issues framed by the petitioners and said the assisting counsel needed to do “better homework”.

Sibal requested the court to list the matter on procedural aspects before the hearing date for framing of the questions, following which the matter was kept for 16 July.

The top Court recently reconstituted the present three-judge bench to hear the review pleas. In July 2022, the Court upheld the ED's powers of arrest and attachment of property involved in money laundering, search and seizure under PMLA.

In August the same year, the Court agreed to hear pleas seeking a review of its verdict and observed that two aspects “prima facie” required reconsideration.

Observing that money laundering was a “threat” to the proper functioning of a financial system worldwide, the apex Court upheld the validity of certain provisions of the PMLA, underlining that it was not an “ordinary offence”.

The top court said authorities under the 2002 law were “not police officers as such” and the ECIR could not be equated with an FIR under the Code of Criminal Procedure.

The supply of an ECIR copy in every case to the person concerned was not mandatory, and it was enough if the ED, at the time of arrest, disclosed the grounds for it, it added.

The verdict came on a batch of over 200 petitions questioning various provisions of the PMLA, a law the Opposition often claims is weaponised by the government to .

Section 45 of the PMLA, which deals with offences to be cognisable and non-bailable and has twin conditions for bail, is reasonable and does not suffer from the vice of arbitrariness or unreasonableness, the Court said.