{"id":255936,"date":"2022-02-17T21:45:02","date_gmt":"2022-02-17T16:15:02","guid":{"rendered":"https:\/\/www.indialegallive.com\/?p=255936"},"modified":"2022-02-18T12:29:56","modified_gmt":"2022-02-18T06:59:56","slug":"under-the-current-regime-of-pmla-the-process-itself-a-punishment-sr-adv-maneka-guruswamy-told-the-supreme-court","status":"publish","type":"post","link":"https:\/\/www.indialegallive.com\/constitutional-law-news\/courts-news\/under-the-current-regime-of-pmla-the-process-itself-a-punishment-sr-adv-maneka-guruswamy-told-the-supreme-court\/","title":{"rendered":"Under the current regime of PMLA, the process itself a punishment: Sr. Adv. Maneka Guruswamy told the Supreme Court"},"content":{"rendered":"\n
Senior Advocate Maneka Guruswamy told the Supreme Court<\/a> that under the current regime of the PMLA, the process itself is the punishment while arguing on behalf of the accused under the PMLA.<\/p>\n\n\n\n Today, the three-judge bench of Justice AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar in its Day 14, heard the Submissions of Sr. Adv. Maneka Guruswamy, Sr. Adv. Aabad Ponda, Sr. Advocate Siddharth Agarwal in the batch of petitions relating to the interpretation of the Prevention of Money Laundering Act, 2002.<\/p>\n\n\n\n In PMLA, the process itself a punishment: Sr. Adv Maneka Guruswamy<\/p>\n\n\n\n Sr. Adv. Guruswamy began her submissions for the day by apprising the Bench of the fact that the PMLA as it stands now is in derogation of the safeguards laid down by the Constitution and of the penal and procedural laws in force in India. She submitted that under the current regime of the PMLA, the process is the punishment<\/strong>. Owing to the enigmatic nature of the ECIR, which at no point is disclosed to the accused or to his advocate, the attachment procedure conducted even prior to the conviction of the accused in the money-laundering trial are all beyond the scope of the constitutional mandates in place for the protection of people.<\/p>\n\n\n\n She argued that in light of the annual report released by the Ministry of Finance, under the category of unspecified offences, there were 220 such instances where the predicate offence was unknown to the ED and while the majority of these cases had been investigated into, only 25 had been prosecuted. This illustration was intended to demonstrate the lapse in efficiency and the poor performance which is a consequence of deviance from procedural and constitutional mandates.<\/p>\n\n\n\n However, the Court took objection to this line of argument as the validity of the provisions of the Act cannot be tested on the ground of inefficient performance of the ED and other officers under PMLA.<\/p>\n\n\n\n Justices AM Khanwilkar and Dinesh Maheshwari pointed out, that the outcome of procedural actions taken by the concerned authorities does not make the provision irrelevant or unconstitutional. Moreover the bench observed that the statistics and figures lead nowhere as it will not be able to prove the validity of the Act.<\/p>\n\n\n\n \u201cWe will be going in reverse order. We cannot test validity of the provision on the basis of efficiency or inability of the officers in taking the prosecution to its logical end which is conviction. Unless you show us precedents that support the argument that figures will prove validity of the Act, it cannot be considered,\u201d <\/span><\/p><\/blockquote>\n\n\n\n -said Justice AM Khanwilkar.<\/p>\n\n\n\n Also Read:<\/strong> Karnataka HC on hijab controversy: Mediation request possible, only if both parties agree<\/a><\/p>\n\n\n\n Further, Sr. Adv. Guruswamy argued in relation to Art. 21 and the concomitant due process and the manner in which it applies to the provisions of the PMLA. As under S.44 of the Act whereby the joint trial of the two offences have been prohibited, the Sr. Adv. submitted that such restrain compels the judicial mind to compart all necessary evidence and material facts relating to the two trials into separate universes, even though the rights and liabilities pertain to the same person\/s. The ground reality is in a parallel trial the special court is compelled to include relevant evidence in one compartment and exclude it from another part, thereby splitting the same set of facts relating to the same party into separate categories.<\/p>\n\n\n\n The Court objected to this submission and observed that the judicial mind is well-trained to differentiate between relevant facts presented to it and how it applies to parties without being confused despite the duality of the procedures.<\/p>\n\n\n\n Further she stated that the Supreme Court<\/a> in a host of judgements has laid down the necessary checks and balances so far as it applies to accountability of concerned agencies entrusted with penal procedures under various enactments. Reliance was made on the Apex Court\u2019s 1998 judgment in Vineet Narain case, wherein the judicial journey of holding the concerned authorities liable and making them accountable had begun. Accountability and checks and balances in terms of functioning were upheld in this judgement. \u00a0That was 25 years ago, and yet the Sr. Adv. submitted, the ED as it stands has unchecked powers so far as the ECIR is concerned and it remains unavailable to aggrieved parties and this present position is unsustainable and needs to be remedied.<\/p>\n\n\n\n Additionally, the attachment proceedings under contemporaneous legislations come into effect only post-conviction, in stark contrast with the attachment procedures under PMLA. Further, the Appellate Tribunal has not had a Chairperson since 2019 and its members have been consistently retiring out. Therefore, if initial orders need to be challenged by the accused, there exists no recourse available to him. Similar is the case with Adjudicating authorities. These institutional deficiencies need to be addressed and remedied.<\/p>\n\n\n\n Lastly, Sr. Adv. submitted that in light of the judgement in Gopalkrishnan vs. State of Kerala, 2020, wherein the Hon\u2019ble Supreme Court has laid emphasis on the importance of Art. 21 and its constituent fair trial<\/strong>, the accused under this present Act in consideration, have the right to know about the allegations made against him in the ECIR, which is a necessary part of the accused\u2019s right to a fair investigation and fair trial. Sr. Adv. Guruswamy cited the case of Mohammad Ajmal Kasab, which was arguably one of the worst of the worst instances and despite that the Court had protected the enforceability of the due process and in the greater scheme of things protected the constitutional morality and all of its constituent provisions.<\/p>\n\n\n\n Also Read: <\/strong>Supreme Court issues notice in plea of disabled student seeking seat in PG medical courses<\/a><\/p>\n\n\n\n Submissions of Sr. Adv. Aabad Ponda<\/p>\n\n\n\n