REGENT COMPUTRONICS PVT. LTD.

Vijay Madanlal Choudhary Appellant

V/S

UNION OF INDIA Respondents

Referred Judgements :-

JUDGEMENT

(1.) In the present batch of petition(s)/appeal(s)/case(s), we are called upon to deal with the pleas concerning validity and interpretation of certain provisions of the Prevention of Money- Laundering Act, 2002 (For short, "PMLA" or "the 2002 Act") and the procedure followed by the Enforcement Directorate (For short, "ED") while inquiring into/investigating offences under the PMLA, being violative of the constitutional mandate.

(2.) Mr. Kapil Sibal, learned senior counsel appearing for the private parties/petitioners in the concerned matter(s) submitted that the procedure followed by the ED in registering the Enforcement Case Information Report (For short, "ECIR") is opaque, arbitrary and violative of the constitutional rights of an accused. It was submitted that the procedure being followed under the PMLA is draconian as it violates the basic tenets of the criminal justice system and the rights enshrined in Part III of the Constitution of India, in particular Articles 14, 20 and 21 thereof.

(3.) Next submissions were advanced by Mr. Sidharth Luthra, learned senior counsel on the same lines. He argued that the current procedure envisaged under the PMLA is violative of Article 21 of the Constitution of India. The procedure established by law has to be in the form of a statute or delegated legislation and pass the muster of the constitutional protections (Gudikanti Narasimhulu and Ors. vs. Public Prosecutor, High Court of Andhra Pradesh, (1978) 1 SCC 240 (paras 1, 2, 10)). The Cr.P.C. has several safeguards in respect of arrested investigation; they are also rooted in the Cr.P.C. of 1898. They are reflective of the constitutional protections. The manual, circulars, guidelines of the ED are executive in nature and as such, cannot be used for the curtailment of an individual liberty. Under the PMLA, there is no visible sign of these protections against police's power of search and arrest; it is in stark contrast with the constitutional protections given also the reverse presumption against innocence at stage of bail under Sec. 45 of the PMLA. Further, the destruction of the presumption of innocence under Ss. 22, 23 and 45 cannot even meet the test at the pre-complaint and pre-cognizance stage (Ranjitsing Brahmajeetsing Sharma vs. State of Maharashtra and Anr., (2005) 5 SCC 294 (paras 10, 11 and 21)) and the accused cannot escape the rigors of custody as per Sec. 167 of the Cr.P.C. As such, these conditions of reverse burden are in violation of Articles 14 and 21 of the Constitution. Presumption of innocence even in the pre-constitutional era has been a part of the right to a fair trial Attygalle and Anr. vs. The King, AIR 1936 PC 169. After the Constitution came into existence, it has formed a part of a human right and procedure established by law Noor Aga vs. State of Punjab and Anr., (2008) 16 SCC 417. Lack of oversight in an investigation under the PMLA is said to be in gross violation of justice, fairness and reasonableness. It is also pointed out that while the predicate offence might be investigated, protected under the garb of the Cr.P.C., the non-application of such safeguards under the PMLA is wholly unjustified (State of West Bengal and Ors. vs. Committee for Protection of Democratic Rights, West Bengal and Ors., (2010) 3 SCC 571 (Para 68)). The procedure as envisaged under the PMLA, especially under Sec. 17, vests the executive with the supervisory power in an investigation. The same is anathema to the rule of law and the magisterial supervision of an investigation is an integral part and is a necessity for ensuring free and fair investigation Sakiri Vasu vs. State of Uttar Pradesh and Ors., (2008) 2 SCC 409 (paras 15-17).

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VIJAY MADANLAL CHOUDHARY Vs. UNION OF INDIA

Referred Judgements :-

JUDGEMENT

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