DELHI EXCISE CASE and Bail Granted to Manish Sisodiya:The Supreme Court granted bail Friday to former Delhi Deputy Chief Minister Manish Sisodia in the CBI and ED cases against him for his alleged role in the Delhi excise policy matter, saying
“there is not even the remotest possibility of the trial being concluded in the near future”.
Judgement of The bench regarding the Case:
1.The bench marked that”In our view, keeping the appellant behind the bars for an unlimited period of time in the hope of speedy completion of trial would deprive his fundamental right to liberty under Article 21 of the Constitution.
As observed time and again, prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial”.
2. Section 45 of the Prevention of Money Laundering Act, 2005 prescribes a rather high bar for granting bail. The negative language in the provision itself shows that bail is not the rule but the exception under PMLA and both trial and constitutional courts are required to apply a ‘triple test’ to grant bail.
3.These three conditions are: (i) that there are “reasonable grounds for believing that (the accused) is not guilty of such offence”; (ii) that “he is not likely to commit any offence while on bail”; and (iii) that the accused is not a flight risk.
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The ED has been given the responsibility to enforce the provisions of the PMLA by conducting investigations to trace the assets derived from proceeds of crime, to provisionally attach the property and to ensure prosecution of the offenders and confiscation of the property by the Special court.
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Prevention of Money Laundering Act (PMLA), of 2002 :
Section 3 of Prevention of Money Laundering Act:
-It defines the offense of money laundering.
-The existence of a predicate offense is sine qua non to charge someone of money laundering.
-The investigation and prosecution of the predicate offense is done by the Central Bureau of Investigation (CBI) or the State Police.
-Section 4 of Prevention of Money Laundering Act:
This section deals with punishment.
Section 50 of the Prevention of Money Laundering Act:
It provides powers of a civil court to the ED authorities for summoning persons suspected of money laundering and recording statements.
Prescribed Obligation:
Prevention of Money Laundering Act (PMLA) prescribes the obligation of banking companies, financial institutions and intermediaries for verification and maintenance of records of the identity of all its clients and also of all transactions and for furnishing information of such transactions in a prescribed form to the Financial Intelligence Unit (FIU-IND).
Setting up of Authority:
PMLA envisages the setting up of an Adjudicating Authority to exercise jurisdiction, power and authority conferred by it.
It also envisages the setting up of an Appellate Tribunal to hear appeals against the order of the Adjudicating Authority and the authorities like Director FIU-IND.
Special Courts:
Under PMLA, Special Court or Special Courts are used to try the offenses punishable under PMLA and offenses with which the accused may, under the Code of Criminal Procedure 1973, be charged at the same trial.
Agreement for Central Government:
It allows the Central Government to enter into an agreement with the Foreign Governments for enforcing the provisions of the PMLA, exchange of information or investigation of cases relating to any offense under PMLA.
Criticism of PMLA Act:
Against the Fundamental Rights:
Under Section 19 of the Prevention of Money Laundering Act (PMLA), the ED, while arresting a person, is merely required to furnish the grounds of arrest, and there is no requirement to disclose the contents of the ECIR (akin to an FIR), which contains the allegations against the accused person.
Arbitrariness of the Act:
The UN Resolution on the basis of which the Prevention of Money Laundering Act was enacted in India spoke only about the offence of the laundering of drug money. However, the PMLA of India acquired a different character through amendments from time to time.
Punishments:
Stringent laws were incorporated to deal with most serious economic crime. However, due to various amendments, now it contains such offences which are either ordinary offences listed in the IPC or for which there are special laws in force.
Example: The Prevention of Corruption Act, 1988, aimed at curbing corruption among public servants. This Act was added to the schedule of offences in 2009. The PMLA now applies with all its rigour to public servants. Thus, a public servant charged with corruption and a hard-core drug trafficker are treated alike.
Against the Anglo-Saxon Jurisprudence:
A very disturbing thing about the PMLA is that it turns the Anglo-Saxon jurisprudence principle upside down and an accused under this law is presumed to be guilty until proven innocent.
Discretion of Authorities:
The prosecution under the PMLA can be initiated as long as an FIR in relation to a scheduled offence has been registered with the jurisdictional police, or the same is pending enquiry or trial. The lack of guidelines in this regard gives unbridled discretion to the authorities to invoke the provisions of the PMLA selectively and arbitrarily.
Violation of Basic Structure Doctrine:
The distinction between the offence of money laundering and scheduled offence has been blurred to a great extent and has resulted in the ED investigating into the commission of the scheduled offence itself.
Since there is no requirement to obtain the consent of the state, the exercise of policing power by the ED, a Central agency, within the territory of a state without its consent is against the value of federalism (a part of the basic structure of the Constitution).