More burden of proof on accused in PMLA than any other draconian provisions, SC told

PTI

New Delhi, February 8

There are equally or “more draconian” provisions or legislations than the PMLA but the burden of proof has never been shifted entirely on the accused as has been done in the anti-money laundering law, the Supreme Court was told on Tuesday.

A bench headed by Justice A M Khanwilkar, which is dealing with a batch of petitions concerning interpretation of certain provisions of the Prevention of Money Laundering Act (PMLA), observed that Section 24 of the law will come into play at the stage of trial.

Section 24 of the PMLA deals with the aspect of burden of proof.

It states that in any proceedings relating to the proceeds of crime under the PMLA, in the case of a person charged with the offence of money-laundering, the authority or the court shall, unless the contrary is proved, presume that such proceeds of crime are involved in money laundering.

Senior advocate A M Singhvi, appearing for some petitioners, told the bench that the principle of law normally is that the burden, initial and onwards, remains on the prosecution.

“The basic burden on the prosecution is the hallmark of our system,” he told the bench, also comprising Justices Dinesh Maheshwari and C T Ravikumar.

“Now, there are equally and more draconian provisions or Acts than the PMLA...and yet your lordships, when your lordships have such provisions, never shift the entire burden on to the accused. Your lordships require some degree of satisfaction of that burden,” Singhvi said.

He said the prosecution is left with several things which it has to prove in equally or more draconian statutes.

“If we read section 24, the presumption is limited to the fact that proceeds of crime are involved in money laundering. So, if it is proceeds of crime is a fact which needs to be proved by the prosecution,” the bench observed.

During the day-long hearing, which would continue on Wednesday, the apex court referred to Section 3 of the PMLA which deals with offence of money laundering and said projecting the proceeds of crime as untainted is also an offence.

The bench also dealt with the issue of attachment of property under the PMLA.

“There is in-built mechanism provided in the Act itself, Section 8, that you will attach and confiscate the property. Purpose of attachment is eventually to confiscate the property. Confiscation can happen only upon conviction, not before conviction. So, therefore, until the trial is over, there cannot be confiscation,” the apex court said.

The bench also heard submissions pertaining to section 45 of the PMLA which deals with aspect of offences to be cognisable and non-bailable.

Singhvi referred to presumption of innocence in the criminal jurisprudence and said the twin conditions in section 45 creates a bar for an accused in securing bail.

The apex court had earlier observed that it needs to have a “holistic approach” on the issues raised in these pleas.

Solicitor General Tushar Mehta had earlier told the bench that there are over 200 petitions in the matter and interim stays have been granted in several serious cases due to which investigation has been affected.

Some of these petitions have challenged the validity of certain provisions of the PMLA.

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