SC reconstitutes three-judge Bench to hear pleas against 2022 verdict upholding ED powers

The Supreme Court has reconstituted a three-judge Bench that will take up petitions seeking a review of its Vijay Madanlal Choudhary case verdict which upheld stringent provisions of the Prevention of Money Laundering Act (PMLA), 2002.

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Earlier, a Bench of Justice Surya Kant, Justice Bhuyan and Justice CT Ravikumar was hearing the matter. In view of Justice Ravikumar's retirement on January 5, the Bench has been reconstituted.

Now, Justice N Kotiswar Singh has replaced Justice Ravikumar in the reconstituted Bench which will take up petitions seeking a review of the 2022 verdict on May 7.

The Supreme Court had on July 27, 2022, upheld the validity of several stringent provisions of the PMLA, which gave the Enforcement Directorate wider powers of arrest and seizure and made it difficult for the accused to obtain bail.

A three-judge Bench led by Justice AM Khanwilkar (since retired) had said supply of Enforcement Case Information Report (ECIR) under PMLA proceedings was not mandatory as it's an internal document that can't be equated with an FIR.

Money-laundering is one of the heinous crimes, which not only affects the social and economic fabric of the nation, but also tends to promote other heinous offences, such as terrorism, offences related to NDPS Act, etc, it had noted.

The 2022 verdict came on 242 petitions, including those by Anil Deshmukh, Karti Chidambaram and Mehbooba Mufti, challenging the stringent provisions of the PMLA.

“Supply of a copy of ECIR in every case to the person concerned is not mandatory, it is enough if ED at the time of arrest, discloses the grounds of such arrest,” it had said.

“In view of the special mechanism envisaged by the 2002 Act, ECIR cannot be equated with an FIR under the 1973 (Criminal Procedure) Code. ECIR is an internal document of the ED and the fact that an FIR in respect of scheduled offence has not been recorded does not come in the way of the authorities referred to in Section 48 to commence inquiry/investigation for initiating “civil action” of “provisional attachment” of property being proceeds of crime,” the top court had said.

“So long as the person has been informed about grounds of his arrest that is sufficient compliance with the mandate of Article 22(1) of the Constitution (right to be informed of the grounds for such arrest, and right to consult and to be defended by a lawyer of his choice),” it had said.

The Bench had also upheld the validity of "twin conditions" for bail under amended Section 45 of the PMLA — (i) prosecutor is given opportunity to oppose the bail plea and (ii) that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.

The top court had in August 2022 agreed to hear petitions seeking review of its verdict, saying two aspects — not providing an ECIR and reversal of the presumption of innocence — “prima facie” needed reconsideration.