Sibal takes court through facts of one of the petitions, arguing against power to issue summons without stating whether the individual is an accused or a witness.
Trivedi J: Summons are for gathering information.
Sibal: Rule of law demands that I ought to know why I am being summoned.
Khanna J: When you go, you'll get to know.
Sibal: But then I'll be arrested.
Khanna J: Denies you the right to seek anticipatory bail.
Sibal: Under Customs Act, the offence is defined. Here, let's say you have a scheduled S 420 offence...ED may not proceed in one case, but not in another. I'm indicating that there is no other statute where this discretion exists.
Khanna J: That may not be true. There are a lot of statutes where this kind of discretion exists.
Sibal: But there's a threshold. I'm leaving the thought to you, think about it.
Kaul J: You're saying that there's a possibility of misuse...
Sibal: Not just a possibility. I'll leave it at that.
Khanna J: That may be a good thing, because where discretion is wisely exercised...Section cannot be struck down on this ground.
Trivedi J: The possibility of misuse of power cannot...
Sibal: Where there is discretion of an authority to proceed or not...Every crime has proceeds of crime, every FIR will have proceeds of crime. Sections 420, 120B, read with some other sections, Copyright Act...This is only statute where ED officer will decide to proceed in one and not in another...
Sibal: Now to say mere possession of proceeds of crime is money laundering...
SG Mehta: That's Section 3.
Sibal: Did I say I'm challenging it? I'm only on the explanation to Section 3. It's a question of interpretation, nothing to do with constitutionality.
Bench rises for lunch.
Sibal: In the case of Nawab Malik, the offence happened in 1999. But, under PMLA, he was in jail for over a year. Obulaparam, same thing.
Trivedi J: Do the PMLA trial and scheduled offence trial always go before same court? It can't be. If someone is convicted under PC Act, their trial will go elsewhere. In most of the cases, [PMLA proceedings] are subsequent events.
Sibal: Practice is, moment FIR is lodged, ED gets involved. Most of the time, it's the same.
Khanna J: Can the statement or confession recorded under PMLA be relied upon in the main scheduled offence?
Sibal: It has to be by the same judge. They will obviously be prejudiced by the statement.
Sibal: None of these [provisions and procedures] have anything to do with Palermo Convention or Vienna Convention. These procedures were added and must be tested on basis of constitutional principles - Art 21, rule of law, fair play, arbitrariness.
Sibal: How do you interpret a section of a statute and say 'inquiry' and 'investigation' is interchangeable, when the section does not say so? How can a court say so? That's no principle of interpretation.