'ED Officials Given All Police Powers, But They're Held To Be Not Police' : Justice Deepak Gupta Criticises PMLA Judgment

Former Supreme Court judge Justice Deepak Gupta delivered a lecture on the topic "Development of Fundamental Rights Jurisprudence in Last 10 years" as part of LiveLaw's 10th anniversary lecture series.

After referring to several judgments which made a significant development in the field of fundamental rights, Justice Deepak Gupta said that there are some judgments which strike at liberty and freedom.

He went on to say: “One of the most cherish rights granted to citizens is right to live with liberty.” He quoted Justice, V R Krishna Iyer, and said “bail is the rule and jail is the exception.”

Moving forward with the lecture, he referred to the judgment in the case of National Investigation Agency v. Zahoor Ahmad Shah Watali(2019), wherein a challenge was made to an “extremely well written judgment” by Justice S. Muralidhar, when he was a judge of the Delhi High Court. Justice Muralidhar, in the said judgment, had read down certain provisions of Unlawful Activities Prevention Act, 1967 (UAPA) while granting bail, after finding certain inconsistencies in the material placed by the police before the court.

However, when the case went into the appeal, the Supreme Court, in a judgment authored by Justice AM Khanwilkar, reversed the High Court judgment by holding that the prosecution materials cannot be dissected at the stage of bail.

Taking a critical view, Justice Gupta asserted that “In my view this judgment is a death knell to personal liberty.” He reasoned his statement by saying that the judgment makes it impossible to get bail. He elucidated: “We live in a country which is govern by the Constitution and we cannot be deprived of our liberty except in accordance with the procedure established by law.”

Thereafter, he referred to Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633, also authored by Justice A.M. Khanwilkar. In this case, the Court had unanimously upheld the validity of all the impugned provisions of the Prevention of Money Laundering Act, 2002 (PMLA), including inter alia, finding that the statements given to Enforcement Directorate (ED) officers are admissible in evidence as they are not police officers.

On this, Justice Gupta said that the “PMLA judgment is, in my opinion, even a bigger blow than the Watali judgment. It turns the criminal law on its head.”

He then questioned that even if we presume that the material placed by the police is right and accepted as a gospel truth but “why cannot the court see all the material which has been collected and decide whether the same shows the prima facie case or not”

“The officials of the ED have been given every police power…but they are held to be not police officers”. Justice Gupta also questioned the low rate of convictions in ED cases and said, "Yes, we need to be strict with these laws but, we need to convict them too, not just send them to jail".

He further questioned that if the burden of proof is on the State “then they don’t have to prove anything. If what they say is the gospel truth, that is accepted. Then why shouldn’t trial finish in two three months?. Then why should the investigation go on in these cases for 6 and 8 years. If that be so, does not the accused have a right to say that I should be granted bail because you have taken my right to liberty. You have taken another fundamental right of right of having a quick and fair trial”

“These laws in my opinion offend every sensibility of a civilized society”

“These judgments, I hope will be set aside”

Pursuant to this, Justice Gupta referred to another observation, “which was not called for”, in Zakia Ahsan Jafri and another versus State of Gujarat and another, 2022 LiveLaw (SC) 558, wherein the petition filed by Zakia Jafri challenging the SIT's clean chit to the high functionaries in the Gujarat Riots of 2002 was dismissed.

While he agreed with the Court’s decision of not interfering with the SIT report but questioned the observations of the Court for taking strict actions against the people behind the said PIL. As a result, the very next day Teesta Setalvad was arrested.

“A constitutional court must be careful while making such observations. Observations which affect the liberty of the citizen. Can Court make such observations without even giving notice to the person against whom such observations are being made? Does not this go against the very principle of fair hearing?”

As per Justice Gupta, the Court failed to uphold the liberty of citizens in several judgments including the above-mentioned ones.

Pertinently, he also referred to the findings of Justice Y.V., Bhagwati in the case of Maneka Gandhi vs Union, wherein Justice Bhagwati held that that law which lays down the restrictions must be fair and just law.

Based on this, Justice Gupta said the provisions of UAPA cannot by any stretch of imagination be said to be just and fair law.

The inaugural lecture of LiveLaw's 10th anniversary lecture series was delivered by former Chief Justice of India UU Lalit on the topic of developments of criminal law jurisprudence in the past decade.

Live updates from Justice Gupta's lecture can be followed here.

The lecture can be watched here