Money Laundering Arrests “Not Arbitrary” – Supreme Court’s Big Order

Backing the Enforcement Directorate with a crucial judgement, the Supreme Court today rejected almost all objections raised against the probe agency regarding several powers including initiating an investigation, the power to arrest, and others.

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The top court has upheld almost all the stringent provisions of the Prevention of Money Laundering Act (PMLA) in proceeds of crime, search and seizure, power of arrest, attachment of properties, and bail, which were under challenge in the court.

Petitioners had argued that unchecked power to arrest the accused without informing them of grounds of arrest or evidence is unconstitutional.

The petitioners also said the ED recording incriminating statements from an accused during questioning under the threat of being fined for withholding information amounts to compulsion.

The supply of ECIR (Enforcement Case Information Report) copy in every case is not mandatory as it is an internal document, the top court said, rejecting the petitioners’ challenge that it is similar to an FIR and the accused is entitled to a copy of the ECIR. It is enough if Enforcement Directorate, at the time of arrest, discloses grounds for such arrest, it said.

The petitioners said that putting the burden of proof on the accused violates fundamental rights like the right to equality and the right to life. The Centre, represented by Solicitor General Tushar Mehta, responded by saying that owing to the serious nature of the money laundering offences and the societal need to curb it, putting the burden of proof on the accused is justified.

Another major challenge, that filing PMLA charges on cases that occurred before 2002 (when PMLA came into existence) is unconstitutional, was also turned down. The Centre justified it by saying that money laundering is a continuing offence, and not a single act but a chain. Proceeds of crime could have been generated before 2002 but could have still been in possession or in use by the accused post-2002.

The ED’s ‘money laundering’ raids are up 26 times under the Modi govt, but the conviction rate is low. During 3010 ‘money laundering’ searches in the last 8 yrs, just 23 accused have been convicted, the Finance Ministry had said in the Rajya Sabha. In 112 searches between 2004 – 14, no money laundering convictions, it added.

‘Proceeds of crime’ worth ₹ 99,356 crore were attached between 2014 to 2022 while that worth ₹ 5,346 crore were attached between 2004 to 2014, the Finance Ministry has said. While there were 888 prosecution complaints under the Modi government, there were just 104 between 2004 to 2014, it added, arguing that increased searches show government commitment to preventing money laundering.

The top court had earlier reserved its order on a batch of petitions challenging certain provisions of the Prevention of Money Laundering Act (PMLA). The petitioners include politician Karti Chidambaram and former Jammu and Kashmir Chief Minister Mehbooba Mufti, among others.

The centre had justified the constitutional validity of the provisions of PMLA. The centre had defended the amendments to PMLA, saying money laundering poses threat not only to financial systems but the integrity and sovereignty of nations, since money laundering is conducted not just by corrupt businessmen like Vijay Mallya or Nirav Modi but also by terror groups.