New Delhi: The Supreme Court Wednesday decided to go ahead with the hearing of pleas seeking reconsideration of the July 2022 judgment of the apex court upholding the validity of the provisions of the Prevention of Money Laundering Act (PMLA), despite Centre and the Enforcement Directorate (ED) vehemently opposing it.
Solicitor General Tushar Mehta, representing the Centre, submitted before a bench led by Justice Sanjay Kishan Kaul that the 2022 judgment was rendered after a lot of deliberations and questioned can this bench of three judges sit in appeal over another coordinate bench. Mehta asked, "Can a person tomorrow bring a petition that he does not agree with the five-judge bench judgment in the same-sex marriage case and ask, can it be referred?".
Mehta said PMLA is not a standalone offence and unlike other laws, PMLA is prepared by the legislature in conformity with the directions issued by the Financial Action Task Force (FATF) and emphasized that every member country has prepared their money laundering and terror laws. Mehta urged the apex court to wait for the mutual evaluation by FATF to get over.
The bench, also comprising Justice Sanjiv Khanna, said the court will deal with it. Mehta said this bench cannot revisit it in these proceedings, otherwise, there will be no end to litigation. Justice Kaul told Mehta that prima facie his view is that if it is worth it, the three-judge bench can deal with it and there cannot be a bar, and asked if it is written in stone a bench cannot look into another judgment.
Justice Kaul emphasized that the court can’t say that it can never revisit the decision, and “review order says at least two aspects to be considered…..somebody has filed it and we can consider, and not preclude somebody”. Mehta said it is not an academic exercise and we have to be alert and alarmed. Justice Kaul said the court is alert and it won’t be alarmed by any party.
However, Mehta insisted on his objection to the petitions. Justice Kaul told Mehta in court one party only cannot address and the bench has heard his objections and taken note of it. The bench asked senior advocate Kapil Sibal, representing one of the petitioners, to begin his submissions.
Sibal said the court had said PMLA is not a penal statute and that is his first problem. Sibal submitted that one can be convicted for money laundering and sentenced, and it's not a penal statute and the court says it is a regulatory statute. Sibal said when a person is summoned under PMLA, he would not know in what capacity he is being summoned, whether as an accused or witness. Justice Khanna said the justification in the judgment is that it is the same as for the Customs Act, Excise Act, and Income Tax Act.
Sibal replied, but they are not penal statutes and the next point is that there is no ECIR (Enforcement Case Information Report). Sibal stressed that the person would not know the allegations against him and how would he get bail. Justice Trivedi questioned Sibal, according to you all these issues wrongly considered in the judgment? Sibal said the twin condition in bail, and without information how would one defend himself? Sibal stressed that his case is that the statute is not in conformity with the Constitution.
After a detailed hearing in the matter, the apex court posted the pleas for a day-long hearing on November 22. In November 2017, a bench of Justice Kaul and Justice (retired) R F Nariman had held section 45(1) of PMLA unconstitutional insofar as it imposes two further conditions for the grant of bail to an accused saying this violates Articles 14 and 21 of the Constitution. It was overruled by a three-judge bench on July 27, 2022, judgment in the case Vijay Madanlal Choudhary vs Union of India. The court underlined that “the principle of innocence of the accused/offender is regarded as a human right” but “that presumption can be interdicted by a law made by the Parliament/Legislature”.
The ruling held as valid the twin conditions for bail laid down in Section 45 of the Act. According to the provision when the public prosecutor opposes the bail plea of an accused, the court can grant relief only if it is satisfied that there are reasonable grounds to believe that the accused is not guilty of such an offence and that he is not likely to commit any offence if released on bail.
