New Delhi: In an important observation, the Kerala high court on Thursday, March 24, expressed concern about controversial provisions added to the Prevention of Money Laundering Act (PMLA) that have put the burden of proof of establishing innocence on the accused.
According to Bar and Bench, in oral remarks, Justice A. Badharudeen said, “This seems to be very, very dangerous.”
The judge pointed out that while similar provisions do exist in other statutes like the Narcotics and Drugs and Psychotropic Substances (NDPS) Act, Section 45 of PMLA adds a further provision that makes bail more complicated.
Section 45 says that in cases where the public prosecutor opposes the bail application of an accused, a court can grant bail only if it is satisfied that there are reasonable grounds for believing that the accused is not guilty of such an offence and that s/he is not likely to commit any offence while on bail.
The controversial PMLA was upheld last year by the Supreme Court in its judgment in Vijay Madanlal Choudhary vs Union of India. Justices A.M. Khanwilkar, Dinesh Maheshwari and C.T. Ravikumar had upheld amendments to the PMLA that carved out exceptions from normal criminal processes under the Code of Criminal Procedure.
The provisions were upheld by a bench headed by Justice Khanwilkar on July 27, 2022, coincidentally, two days before he retired. At the time, LiveLaw reported that verdict received wide criticism, with senior advocate Dushyant Dave calling it a “blackspot on the Supreme Court”. A month later, a petition was also filed seeking a review. On August 25, the Supreme Court issued notice to the Union government on the review petition.
Then Chief Justice of India (CJI) N.V. Ramana, agreeing to hear the review petition, observed:
“We are completely in support of prevention of black money or money laundering. Country cannot afford such offence. Object is noble. (But) not providing copy of Enforcement Case Information Report (ECIR) and reversal of presumption of innocence which are two issues which needs reconsideration as per us.”
Justice Badharudeen, heading a single-judge bench, was considering the bail plea moved by M. Sivasankar, the former principal secretary to the chief minister of Kerala, in the LIFE Mission case registered by the Enforcement Directorate (ED) under the provisions of the PMLA.
Bar and Bench also reported the three other grounds underlined by senior advocate Jaideep Gupta, who was appearing for Sivasankar. One, that allegations levelled against Sivasankar in the LIFE Mission case used the same set of facts as in the 2020 gold smuggling case, in which Swapna Suresh is among the main accused. Gupta contended that it the Supreme Court held in TT Antony vs State of Kerala that two crimes cannot be registered on the same set of facts.
Second, Sivasankar’s counsel said that out of all officials involved with the LIFE Mission project, only Sivasankar, who happens to be the former principal secretary to the Kerala CM, has been singled out for action by the ED. Third, the defence said that the amount of money alleged to have been illegally given to Sivasankar is less than Rs 1 crore, which is bailable under the PMLA.
The matter has been posted for further hearing on March 26.
