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Without Proving Knowledge About Proceeds Of Crime, Can Money Laundering Be Presumed? Supreme Court Asks ED
Mehal Jain
11 March 2022 9:58 AM IST
The Supreme Court on Thursday resumed hearing the string of petitions challenging the constitutional validity of several provisions of the PMLA Act.Additional Solicitor General S. V. Raju continued his submissions on behalf of the Enforcement Directorate.Does it follow that without leading in evidence, the prosecution can succeed on the allegation of money-laundering without pointing out...
The Supreme Court on Thursday resumed hearing the string of petitions challenging the constitutional validity of several provisions of the PMLA Act.
Additional Solicitor General S. V. Raju continued his submissions on behalf of the Enforcement Directorate.
Does it follow that without leading in evidence, the prosecution can succeed on the allegation of money-laundering without pointing out the aspect of 'knowingly or is actually involved in any process or activity', which is the core of section 3? SC Asks
(a) in the case of a person charged with the offence of money-laundering under section 3. the Authority or Court shall, unless the contrary is proved presume that such proceeds of crime are involved in money-laundering; and
(b) in the case of any other person, the Authority or Court, may presume that such proceeds of crime are involved in money-laundering.
Justice A. M. Khanwilkar to ASG S. V. Raju: "PMLA section 3 (definition of money laundering), which is the relevant provision of the constituent offence, is in the nature of legal presumption that there is involvement in money-laundering. Section 3 is the foundational fact which you have to establish in any case, as prosecution. Then perhaps the burden whould be on the other side by virtue of 24. In the context of section 24, you need to point out that in section 3, there is legal presumption in the nature of deeming provision"
ASG: "if I establish the proceeds of crime and if I establish that one is connected with the proceeds of crime, prima facie I have already established. Because if I don't establish, the charge would not have been framed..."
Justice Khanwilkar: "the question was that is section 3 in the nature of a provision which says that once you have proceeds of crime, you are found in possession, then there is legal presumption that it is a case of money laundering?...Unless that interpretation is given to section 3, how can there be presumption of money laundering? Otherwise that is the fact that you have to prove that he 'directly or indirectly attempted to indulge or knowingly assisted or knowingly was a party or was actually involved in any process or activity connected with the proceeds of crime'. That is a part that you have to prove, as the prosecution. Without proving that fact, how can there be presumption of money laundering?"
ASG: "If it is a case of circumstantial evidence, as it would be ordinarily, he has to rebut the circumstances. There are proceeds of crime in a house where he is found. Whether he is connected with the proceeds of crime knowingly, that prosecution will never know. Prosecution will only know that there is grave suspicion to show his involvement in the offence of money laundering. The prosecution will only know the circumstances. Earlier, the framing of charge was not there. The framing of charge makes all the difference"
Justice Khanwilkar: "Once charge is framed, there is naturally a prima facie case, or a suspicion that a case is there. We understand. But if charge is framed, does it follow that without leading in evidence, the prosecution can proceed on the allegation of money-laundering or succeed on the allegation of money-laundering without pointing out that aspect of 'knowingly or is actually involved in any process or activity', which is the core of section 3? That has to be proved by you"
ASG: "that, according to me, is in the special knowledge of the accused (in context of section 106, Evidence Act)"
Justice Khanwilkar: "Once you prove that fact, then he has to rebut it. That is legal presumption under section 24. Unless he produces evidence then, it will be a case of money laundering. But that basic fact has to be proved by you"
ASG: "Basic fact as regards proceeds of crime, I have to establish. But knowingly etc…If he is involved in one of these processes- concealment, acquisition or use, then he is guilty of the offence of money laundering. If I show proceeds of crime, if I show they were concealed or possession is there and if I show there is some connection between him and the proceeds of crime, that is all that is required. Then the presumption kicks in and he has to establish how he is not connected with the proceeds of crime which would translate into the offence of money laundering. This is my submission...When I show existence of proceeds of crime coupled with a grave suspicion of his involvement, according to me, that is sufficient"
Justice Khanwilkar: "That is doubtful. That is not sufficient. You have to establish some basic fact, especially in the light of this section 3 and its Explanation"
Justice Dinesh Maheshwari to the ASG: "From your submission, I understood that mere existence of money referable to proceeds of crime is not sufficient for presumption to kick in. The other element of concealment, acquisition will also have to be established by the prosecution. So mere existence of proceeds of crime would not survive. Who is guilty of money-laundering or who is involved in money-laundering will require some more thing. Then that person becomes responsible to rebut"
Justice Khanwilkar: "Suppose, some search is taking place in some house. Some money comes out of a concealed location in the house which I am not aware of. Can the prosecution merely show that it was concealed in that wall? Is it enough? Or should the prosecution also mention that the fact alleged against me is that I knew about it? Without my knowledge, the offence can be complete? The answer is 'No'. I should know the existence of the concealed money. If I am a subsequent purchaser of the property, I am not aware and then the Recovery takes place. Can knowledge be presumed? No"
Justice Maheshwari to the ASG: "See PMLA section 22- Where any records or property are or is found in the possession or control of any person in the course of a survey or a search, or where any record or property is produced by any person or has been resumed or seized from the custody or control of any person or has been frozen under this Act or under any other law for the time being in force, it shall be presumed that--(i) such records or property belong or belongs to such person...These are the elements- possession etc"
ASG: "When a person is travelling in the car, and some contraband was found in the car, your lordships have held in a series of judgments that conscious possession is proved. Then it is for him to rebut"
Justice Khanwilkar: "But if it is a public transport vehicle? Even if it is a private car, if it is a taxi hired, then the prosecution will have to show my knowledge. If it is a personal car which is owned by me and in my exclusive possession, then the burden is lighter... the offence is 'knowingly assists' or is 'knowingly party'. It cannot be unknowingly"
ASG: "That would be an impossible task to achieve. I will establish that the house belongs to him, I will show he is in possession of the house, I will show that in the house that is in his possession this is found. That is sufficient to infer..."
Justice Khanwilkar: "No, but if it is concealed, you will have to point out that he knew about the fact that it is so concealed. If I am the owner and I am being prosecuted for the PMLA offence and I am not the subsequent purchaser, then you may be right. But if I am able to show to you, mention to you that I am a subsequent purchaser, then the prosecution has to prove those facts"
ASG: "I will establish ownership, I will establish possession. I, in a given case, may also establish that the material which was put in that concealed place came into existence after his purchase"
Justice Khanwilkar: "Then that is enough. Then that presumption is there. Then that is the process or activity of concealment of proceeds of crime which is money laundering by the definition itself"
ASG: "unless I establish that he is connected with the concealment, charges will not be framed"
Justice Khanwilkar: "now the prosecution also has to say that these proceeds of crime pertain to this particular predicate offence which is of so and so date and he is owner of that particular premises before that date, and therefore, it is linked to proceeds of crime"
Justice Maheshwari to the ASG: "this expression 'established' pertains to post framing of charges, not your complaint alone. This would be a result of positive evidence in the adjudicatory court...Since you are over-emphasising on this 'charged with' expression...But that would not suffice. That is in the nature of accusation only
ASG: "prior to the stage of framing of charges, there is material to show against him that there is grave suspicion against him that he is involved in the offence of money laundering. Charges are not framed if a person is not guilty to the extent of grave suspicion. I have some evidence, it is not in the air, though it may not translate into beyond reasonable doubt- while I may be falling short of proving beyond reasonable doubt, but I may prove it to the hilt after the trial"
Justice Khanwilkar: "but even for framing charge, you have to have these basic foundational facts. You have to have material regarding the existence of those foundational facts- One, it is proceeds of crime; second, it was found in his possession or he had concealed it or it was recovered from premises belonging to him, it was in concealed form; and third, the concealment was the activity of money laundering. The concealment was in my knowledge and I knew about it and I was actually involved. That is the expression used. It presupposes that I must have had knowledge about the concealment. Otherwise, the charges will not be framed. And once that material is there, there will be grave suspicion. But that is the basic fact that you will have to establish as prosecution...Then absent 24 also, under 106 evidence act, the accused has the opportunity to rebut that presumption, otherwise adverse inference will be drawn"
ASG: "There was a case where there was an address of an NRI which he used to keep locked. Parcels of narcotics drugs used to come at that address. The postman used to take delivery of those parcels. The issue was whether the owner of the house- who was staying in America, kept his house locked, but the material has been delivered in that house- was in conscious possession. Ultimately it was held that the prosecution has to show that it was his house and the parcels were coming there. Then ultimately the burden was on him to show that I was keeping the house locked. The prosecution could not have shown all this. Ultimately the burden shifts. These are things in his personal knowledge that that I never knew, I bought the house etc"
Justice Khanwilkar: "You accept the basic position that we have suggested?"
ASG: "Yes. To the extent of grave suspicion, I have to prove"
Justice C. T. Ravi Kumar to the ASG: "Section 106 is not intended to relieve the prosecution of its burden. The prosecution has to succeed in proving facts from which reasonable inference can be drawn. You cannot say that it is very difficult to discharge that burden. The burden shifts only if the prosecution succeeds in proving those facts from which the reasonable inference can be drawn"
Justice Khanwilkar to the ASG: "So now section 3 and 24 will have to be read together to mean that there is legal presumption once those facts in section 3 have been proved. Then there is legal presumption against you which you have to rebut"
ASG: "but to the extent of grave suspicion…"
Justice Khanwilkar: "Correct, correct. Grave suspicion is because of that expression 'charge'"
On the petitioners' argument against money laundering as a continuing offence and retrospective application of the 2002 Act
Justice Khanwilkar said : It has been the petitioners' case, By virtue of the 2019 amendment to section 3, they have added an Explanation providing that this will be deemed to be a continuing offence. The offence stands committed when I project tainted property as untainted property. How can that be a continuing offence? Through that process, they seek to take jurisdiction for crimes committed in the past. So for an act of conspiracy or 420, which was not money laundering earlier, they seek to take cognisance now.
Justice Khanwilkar asked of the ASG: "concealment and possession is a continuing activity?"
ASG: "Yes. And the date on which one is found in possession is important, not the date of acquisition. And the element of possession is found in concealment. Without possession, you cannot conceal!"
On Thursday, Justice Khanwilkar put to the ASG: "In the context of continuing activity, say the predicate offence is committed prior to the coming into force of the 2002 act. At that time, it was only proceeds of crime, it was not a case of money laundering at all. Now this amount or property, as the case may be, ceases to have the colour of proceeds of crime after acquittal, or it remains until the trial continues? How would you deal with that situation?"
ASG: "Suppose, a person acquires property before 1. 7. 2005 (the date when the PMLA came into force) which is out of proceeds of crime, but it is not a scheduled offence. Say, a person gets 10 lakhs by committing cheating before 1. 7. 2005. He keeps that money with him, and after 1. 7. 2005 and after cheating becomes a predicate offence, that money is found from him. So the date when it is found from him will be the crucial date. And that date is after 1. 7. 2005 with respect to the coming into force of the PMLA or with respect to a later date on which that offence is made a predicate offence. But that concealment or possession has to be found after the coming into the force of the PMLA and after that offence became a predicate offence"
Justice Khanwilkar: "If that person was acquitted before that day, before 2005, what would be the situation then? Because then it ceases to be money laundering as, before that date, he was acquitted. The money or property should continue to remain proceeds of crime when that Act came in force"
ASG: "But there are different modes of one getting acquitted. If there is compounding, it is acquittal. If there is withdrawal of prosecution, even then it is acquittal. If there is discharge, that can be acquittal. There can be acquittal on technical grounds also, say there is no sanction for prosecution etc. If it is acquittal on technical grounds, then the predicate offence will continue. There has to be a finding on merits that the predicate offence has not been committed. If there is no such finding, then it continues"
Justice Khanwilkar: "Is the benefit of doubt given that he is acquitted? Because if this depends on a case to case basis, then it will be open ended. Then you are giving authority to the ED officer to sit over the judgment of the court"
ASG: "No, the ED officer will only give information to the police officer that you have not collected this evidence or you have no investigated this"
Justice Khanwilkar: "It ceases to be proceeds of crime where there is acquittal in law, whatever form, not necessarily on merits. Otherwise, it will be a very confusing situation with the discretion being given to the ED officer. The ED officer cannot sit over that, whether the acquittal is in any form, whether it is by the magistrate or by the Supreme Court. He cannot be permitted to sit over any decision of acquittal by a court of law, even if it is acquittal by withdrawal of prosecution"
ASG: "The issue is not acquittal, the issue is whether predicate offence has been committed or not"
Justice Khanwilkar: "That is a fact, but the question is whether that fact has been established against him that he was involved in the Commission of the predicate offence"
ASG: "Merely by acquittal it cannot be said that the predicate offence has not been committed. There has to be a finding that the predicate offence has not been committed"
Justice Khanwilkar: "The Schedule appended to the Act refers to cheating case. That is predicate offence. If the court ultimately finds it is a civil dispute and there is no ingredients of cheating after full fledged trial?"
ASG: "then my case goes because that is on merits"
Justice Khanwilkar: "that is what we are saying- acquittal by court of law in whatever form known to law...The point is that once there is acquittal, it ceases to be proceeds of crime. The property cannot be proceeded against under any of the provisions of the Cr. P. C., it has to be returned to the owner"
ASG: "Suppose the acquittal is without a finding that no predicate offence has been committed..."
Justice Khanwilkar: "That is not relevant. Proceeds of crime is necessary for money-laundering; the property must continue to have the colour of the proceeds of crime when this offence is registered under the PMLA or action is initiated under the PMLA.That is what we are hinting that in a case of acquittal before coming into force of the Act or even thereafter, it ceases to be proceeds of crime...Money laundering is in respect of proceeds of crime. Your jurisdiction is only in respect of proceeds of crime under this Act. You are not concerned with the predicate offence"
ASG: "For proceeds of crime, it has to be linked to a scheduled offence. The finding in the trial is not that there is no scheduled offence. If there is a finding that there is no scheduled offence, then I have to go home lock, stock and barrel"
Justice Khanwilkar: "Then you are stretching it too far. That is not the law. The law is that you take action in respect of proceeds of crime- it is then that you attach it or prosecute that person. It cannot be against just any amount"
ASG: "If the court acquits the person without the finding that scheduled offence has not taken place, then my case still remains. That is my submission"
Justice Khanwilkar: "That will be the wrong test to be applied. For the purpose of this Act, you need to see if the amount recovered is proceeds of crime. Only then money laundering will follow"
ASG: "The rider is that it has to be held that scheduled offence has not taken place. If there is scheduled offence, but you have compounded the scheduled offence, then that is still proceeds of crime. Proceeds of crime do not cease to be proceeds of crime when there is a technical acquittal which is not on merits"
Justice Khanwilkar: "That seems to be a doubtful proposition. We will have to examine it"
ASG: "It is not necessary that one compounds with all the accused, suppose compounding is with only 2 out of 4. For two, there is acquittal, for remaining two, there can be conviction. So mere proceeding on acquittal does not lead us anywhere unless there is a finding that predicate offence has not taken place"
Justice Khanwilkar: "When you are taking action under PMLA, it has to be based on proceeds of crime, it cannot be anything else. And proceeds of crime is something which is connected to accused"
ASG: "Proceeds of crime is not connected to the accused, it is connected to the predicate offence. Say, one accused dies, with one accused there is compounding, another becomes an approver, against another one prosecution is withdrawn. Take a case where proceedings are quashed against the accused under 482 or 226 by the High Court. He is not acquitted but proceedings are quashed because the court says no case is made out. But the court says so far as other accused are concerned, the proceedings will go on"
"This court long back in 1983 in Municipal Corporation of Delhi v. Ram Kishan Rohatgi has taken the view that even if the proceedings have been quashed, you can give an application under section 319, Cr. P. C. to proceed againt him as an accused. Your Lordships held that the mere fact that the proceedings have been quashed against certain individual will not prevent the court from exercising its discretion under section 319 if it is fully satisfied that a case for taking cognizance against them is made out on the additional evidence led before it...Of course nobody uses that provision but that provision is still there. Because at the stage of quashing, it is only prima facie, you look at the FIR and say no case and the proceedings go for a toss. But if new facts have come into being, then you need to show though the court that that judgment needs to be reconsidered", advanced the ASG.
'We will say that you cannot attach anything more than the value of the proceeds of crime'- SC
Justice Khanwilkar asked the ASG, "How will you proceed against the property which is purchased 50% from proceeds of crime and 50% from legitimate income? The whole property will be attached or only limited property to the extent of proceeds of crime?"
ASG: "The issue will be of partition, whether it is divisible or not. If not divisible, then whole. If you cannot divide the property by metes and bounds, then you will attach it and say only 50% is attached and the balance 50% you can mortgage or do anything"
Justice Khanwilkar: "Say, the property value is one crore and proceeds of crime account for only 10 lakhs. Instead of attaching whole property, can provisional attachment not be made corresponding to the quantum of the amount of proceeds of crime? 10% of the value of the property is attached. That will be a matter of instructions to be issued, guidelines. But we will say that you cannot attach anything more than proceeds of crime value"
ASG: "Your Lordships, what if further investigation yields more proceeds of crime?"
Justice Khanwilkar: "Provisional attachment can be made subject to further investigation"
Submissions by the ASG on Wednesday
On Wednesday, the ASG had advanced before the bench that there is no violation of article 20 clause (3) by PMLA section 50. The second submission was that section 25 of the evidence act will not apply to statements recorded under section 50. The third was that Cr. P. C. section162 will not apply to determine the extent of admissibility of section 50 statements.
"First requirement under article 20(3) is that he should be accused of an offence, the second ingredient is that such a person should be compelled. The third ingredient is that mere compulsion is not sufficient, the compulsion must be such that he should be compelled to be a witness against himself", began the ASG
"This Hon'ble Court has laid down a test for the purpose of determining whether a person is an accused for the purpose of article 20(3), and that is that there should be a formal accusation", he advanced.
Justice Khanwilkar: "The formal accusation should be in public domain or can it be anywhere? When you go and arrest someone by virtue of section 19, you have to record your satisfaction in writing. When you are recording that satisfaction, are you not accusing him of that. The accusation need not be in public domain?"
ASG: "your lordships have held that accusation means accusation in an FIR or complaint. That is a formal accusation. In the context of section 19, the constitutional bench in the case of Ramesh Chandra Mehta (1968) has held that 'Where a Customs Officer arrests a person and informs that person of the grounds of his arrest, (which he is bound to do under Art. 22(1) of the Constitution,) for the purpose of holding an enquiry into the infringement of the provisions of the Sea Customs Act which he has reason to believe has taken place, there is no formal accusation of an offence'. This probably will answer my Lords' query. My submission is that at the time when he is arrested under section 19, there is no formal accusation. For a formal accusation, he must be shown as an accused in an FIR or in a complaint
Justice Maheshwari: "What we see is that under the PMLA, the entire set up, the entire procedure is totally different. As we notice, here, to make an arrest, you have to record reasons in writing specifically coming to your satisfaction that a person is guilty of an offence. And that is on the basis of some material in possession. You are citing decisions pertaining to FIR, but this a case where we find that the person is not even given a copy or anything at that stage. But all said and done, if a person is called pursuant to 50 subsection (2) of PMLA, which speaks of 'investigation'...?"
Justice C. T. Ravikumar: "It is higher in degree than accusation actually. You are saying that the person is guilty under this Act!"
ASG: "Till filing of the complaint, he is not an accused. The alternative submission is that till he is atleast arrested, he is not an accused. So far as your Lordships mentioned the record of satisfaction in the arrest memo, his statement can be recorded even before he is arrested...the moment he is not an accused, whether he has been compelled or not compelled to be a witness against himself is irrelevant. All these three conditions have to coexist...the person to whom summons are issued under 50(2) is not an accused. There is no compulsion. There is no statement which is incriminating. Mere existence of legal perils does not amount to compulsion, Your Lordships have held...that he is not an accused is my trump card. If he is not an accused, then the other claims of compulsion etc are not relevant"
Justice Khanwilkar: "section 50 is recording of statements for what purpose? Not for prosecution. Section 50(1) is in reference to enquiry under section 13 and the fine to be imposed for that purpose. So the recording of statements or compelling to give evidence or to produce records is for the purpose of enquiry, not being an accused. That is the basic issue that we pointed out when the other side was arguing, that section 50 is not for the purpose of trying you. Is it for the purpose of investigation? That is what you have to tell us because that was the argument of the other side"
ASG: "The term 'investigation' has been used in section 50 subsection (2). (2) is different from (1). Under (1), the power is given only to the director of the Financial Intelligence Unit in respect of Chapter 4 (obligations of banking companies, financial institutions and intermediaries). When you want to do an investigation or enquiry before beyond chapter 4, subsection (2) comes in"
Justice Ravikumar indicates that the definition of 'investigation' under section 2(na) includes any proceedings under the Act for collecting evidence.
Justice Khanwilkar: "It includes all the proceedings under this act. It does not say investigation for registering complaint. That 'investigation' must be understood accordingly. That was what was pointed out by us to the other side also"
The judge then proceeded to sum up the ASG's submission, "Under section 50(1), the director or the additional director issues summons for the purposes referred to in subsection (1). That is with respect to enquiry to be undertaken by the director. And that enquiry is nothing but a proceeding under the Act. When he collects that material, at that stage it is not collecting material against the accused as such. But on the collation of that material, he deduces some information from that material which will be indicative of commission of offence under the PMLA. Then he may proceed to arrest by recording the reasons under section 19, and also submit complaint contemporaneously or a little later. Therefore, for the purpose of section 50, it is investigation in reference to enquiry. Though the term investigation is used in subsection (2), that investigation will have to be understood in the meaning of section 2(na). (na) refers to proceedings. It is an inclusive definition referring to all proceedings under this Act. So the proceeding is one which the director initiates for understanding whether there is any violation or not or whether there is adherence to norms of financial discipline. That is how the provisions will work. Till then, he is not an accused. And therefore, this article 20 clause (3) will not be attracted in such a situation. This is the long and short of your argument"
Continuing, the ASG urged, "The bar under section 25, Evidence Act requires three things- there must be a common confession, confession to police officer, the person should be an accused. The first submission is the officers of the ED who record the statements under section 50 subsection (2) are not police officers. And why are they not police officers? Because the statements recorded under section 50(2) are evidence, unlike as in the case of section 161 of the Cr. P. C. When a person gives any statement under section 50(2) of the PMLA, it is evidence, same as the case of section 108 of the customs act. 108 is evidence, 50(2) is evidence, and 161 is not evidence. The word 'evidence' is missing in 161. It is a statement and not evidence.When a police officer records something, it does not translate into evidence"
Justice Khanwilkar: "but this evidence for the purpose of enquiry"
ASG: "The purpose of both is different. When the ED officer is collecting evidence under 50(2), he is exercising powers for collecting evidence for attachment, seizure, confiscation of proceeds of crime, identification of proceeds of crime and for identification of witnesses. This is not the same as a police officer under 161 which is for the purpose of investigation. The former does not necessarily have to be in the course of investigation of the offence of money laundering...If you hold ED officials as police officers, then you will render PMLA section 45(1)(a) otiose, which says that No police officer shall investigate into an offence under this act unless specifically authorised by the central government by general or special order and subject to such conditions...The moment you hold him as a police officer, there will be an infraction of 45(1)(a). So they cannot be police officers"
Continuing, the ASG submitted, "This court has held that the test of whether a person is a police officer or not is whether he has the power to file a chargesheet. If not, he is not a police officer. See the definition of complaint under section 2(d) of the Cr. P. C. 'Complaint' and 'police report' is mutually exclusive. Report made by a police officer in a case which discloses, after investigation, the commission of a non-cognisable offence shall be a complaint. The police officer by whom such complaint is made shall be deemed to be the complainant. What is a police report is mentioned in Cr. P. C. section 2 (r)- The report forwarded by a police officer under 173(2) to the magistrate. On a reading of section 2(d), it is clear that the police report and a complaint are mutually exclusive. If it is a complaint, it cannot be a police report. Provisions of the PMLA empower the ED officer to only file a complaint- section 44(1)(b) and section 45(1) second proviso say that the special court may take cognisance only on the filing of a complaint. The only way of approaching the court is by a complaint and not a police report or chargesheet. The next provision is the Explanation to section 44(1) which says that 'complaint' shall be deemed to include any subsequent complaint in respect of further investigation that may be conducted to bring any further evidence oral or documentary. Even the subsequent complaint is called a complaint and not the police report"
"In context of the Explanation to section 2(d) of the Cr. P. C., the argument was that even a police officer can file a complaint. In this context, please see section 155 of the Cr. P. C. So where the magistrate directs a police officer to investigate a case which is otherwise not authorised to be investigated because it is a non-cognisable case, the police officer who investigates it does it as if it is a cognisable case. He has all the powers of a police officer investigating a cognisable offence including the power to file a chargesheet. That chargesheet is deemed to be a complaint. But that does not mean that it ceases to be a chargesheet or a police report. The original complaint and a deemed complaint are two different things", pressed the ASG.
"So if ED officers are not police officers, section 25 and he bar under it will not be admissible", he urged.
As regards why section 162, Cr. P. C. will not apply, he pointed out that section 162 is applicable to statements recorded by the police officers under section 161.
Justice Khanwilkar: "The same logic applies there. They are not police officers and it is not an investigation per se"
ASG: "Statements recorded under 50(2) being evidence and not statements cannot be compared with statements recorded under 161 of the Cr. P. C. 161 statement has to be recorded during the course of the investigation of the offence. It is not so in the case of 50(2) of the PMLA. Such statements can be recorded even without being in the course of the investigation. Bar in 162 permitting limited use of statements therefore does not apply to statements under 50(2)".
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