SC to review ED’s powers to arrest without FIR | The Financial Express

SC to review ED’s powers to arrest without FIR

The apex court had Wednesday allowed Chidambaram’s plea seeking an open court hearing to review the July judgment.

SC to review ED’s powers to arrest without FIR
Opposing the review petitions, Solicitor General Tushar Mehta said this is not a standalone provision for India and the country is part of a large global structure.

Agreeing to partly reconsider its July 27 judgment upholding the Prevention of Money Laundering Act (PMLA), the Supreme Court on Thursday said it will only examine the Enforcement Directorate’s powers to arrest an accused without producing an enforcement case information report (ECIR), which is an equivalent to first information report (FIR) in police cases.

Besides, it will also review the principle of the reversal of the presumption of innocence of an accused under the money laundering law.

Issuing a notice to the Centre on Congress MP Karti Chidambaram’s plea seeking review of the judgment, a Bench comprising Chief Justice NV Ramana and justices Dinesh Maheshwari and CT Ravikumar said it acknowledges that countering black money is a “noble objective” and court supports the endeavours against money laundering and the country cannot afford such type of offences.

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There can’t be appeal of the judgment under the guise of invoking its review jurisdiction, the Bench said, clarifying instead of the entire judgment, it would “prime facie” look into the issues of non-providing of ECIR and negation of the presumption of innocence of the accused in cases probed by the ED.

“We three feel that only two aspects prima facie require reconsideration,” the Bench said, adding that the apex court was not opposing the government’s action to stop the offence of money laundering or bring back the black money or control its circulation as “these offences are very serious”.

Opposing the review petitions, Solicitor General Tushar Mehta said this is not a standalone provision for India and the country is part of a large global structure. “We are part of a larger global structure and our law will have to be in tune with that larger global structure and that we have explained and the Bench had very kindly examined that our law is in tune with not only that structure but our Constitution as well,” he said.

“Any deviation would risk India as a nation to be sent back to the other list where we will not be able to get certain financial assistance,” Mehta argued, adding that there may be global repercussions as well.

The apex court had Wednesday allowed Chidambaram’s plea seeking an open court hearing to review the July judgment.

Another Bench led by the CJI on Tuesday, in a judgment related to the Benami Transactions (Prohibition) Amendment Act, 2016, had observed that the ED’s powers under the PMLA to take possession of a property before trial in exceptional cases leaves scope for arbitrary application. It further stated that the authorities under the 2002 Act are “not police officers as such” and the ECIR cannot be equated with an FIR under the Code of Criminal Procedure (CrPC).

In its July 27 judgment, a three-judge Bench presided over by Justice AM Khanwilkar (since retired) had given wide powers to the ED to attach property involved in money laundering, and make arrest, and conduct search and seizure. It had also declared that supply of a copy of ECIR in every case to the person concerned or the accused is not mandatory, if ED at the time of arrest, discloses the grounds of such an action. It had also made bail nearly impossible, while shifting the burden of proof of innocence onto the accused rather than the prosecution.

Rejecting around over 240 petitions challenging various provisions of arrest and property seizure powers of the ED, the SC had then upheld the validity of Section 3 (definition of money laundering), Section 5 (attachment of property), Section 8(4) (taking possession of attached property), Section 17 (search and seizure), Section 18 (search of persons), Section 19 (powers of arrest), Section 24 (reverse burden of proof), Section 44 (offences triable by special court), Section 45 (offences being cognisable and non-bailable and twin conditions for grant of bail by court) and Section 50 (statements made to ED officials). “Money laundering is an offence against the sovereignty and integrity of the country,” the court had noted.

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