Supreme Court Permits Hybrid Hearing Of Batch Case Relating To Interpretation Of Prevention of Money Laundering Act

The Supreme Court has agreed to hear the batch of petitions concerned with the interpretation of the Prevention of Money Laundering Act through hybrid mode on request made by one of the Senior Counsels. 

A Bench headed by Justice AM Khanwilkar has granted permission for the matter to be heard in hybrid mode on request made by Senior Advocate Kapil Sibal in consideration of the large volumes of pleadings involved in the matter.

In backdrop of the recent Standard Operating Procedure issued by Supreme Court directing mandatory physical hearing of cases listed on two days in a week, Senior Advocate Kapil Sibal appearing for one of the petitioners sought hybrid hearing of the matter. The cases are listed on October 25.

According to the SOP in matters listed for hearing through physical mode, one AOR, one Arguing Counsel and one Junior Counsel per party will be allowed entry into the Court-room and only one registered Clerk per party will be allowed to carry paper books, journals etc. up to the Court-rooms.

The SOP has also stated that if a Bench is of the view that in a particular matter listed on non-miscellaneous days, the number of Counsels are more than the working capacity of the Court-room, as per Covid-19 norms, the Registry will facilitate hearing of such matters through video/tele- conferencing/hybrid mode.

The larger issue surrounding the batch of pleas among 200 others is concerned with the interpretation of the Prevention of Money Laundering Act which has been pending since 2014 before the Supreme Court.

The Top Court on July 19, 2021 after interacting with the counsels had noted that, "It is agreed that the Central Agency will prepare list of cases enactment-wise and also propositions or questions of law to be decided group-wise."

Solicitor General had thereafter formulated the following questions of law to be considered with regards to the PMLA:

1. Whether the offence under PMLA is cognizable or non-cognizable offence, particularly in view of the explanation inserted in 2019?

2. Whether the procedure contemplated under all provisions of Chapter 12 of the Criminal Procedure Code 1973 is required to be followed while commencing and continuing investigation under the prevention of money laundering act, 2002?

3. Whether the twin conditions for grant of bail as provided for in section 45 of the PMLA as it stands amended is unconstitutional? Whether the amendment takes away the basis of the judgment in 2018 and revives the twin conditions for the grant of bail?

4. In case it is held that the twin conditions stand revived, whether the judgment in 2018 holding that the twin conditions cannot apply to anticipatory bail, lays down the correct proposition of Law?

5. Whether the provisions concerning the burden of proof under PMLA violate fundamental rights of the accused person?

6. What are the contours of the offence under Section 3 of the PMLA? Does the explanation to Section 3 of PMLA (added by amendment in 2019) expand the meaning of the offence under Section 3, and if so is it permissible to do so?

7. Whether the filing of a chargesheet/complaint/FIR in the predicate offence is a prerequisite for an exercise of power of arrest under the PMLA? Can money laundering not be a standalone offence in the context of section 3 read with section 2(u) of PMLA?

8. Whether reliance on the statement recorded by the officers of the Enforcement Directorate during the investigation in judicial proceedings, violate article 20(3) of the Constitution and are inadmissible in light of Section 25 of Evidence Act?

9. Whether the provisions concerning attachment of property under the PMLA violates the right to property under article 300A

10. Whether the PMLA can be applied to acts that occurred prior to the addition of the offence under the Schedule to the Act?

11. Whether a Writ Court can grant blanket 'no coercive steps' order without any factual foundation being pleaded/examined merely because the constitutional validity of certain provisions has been challenged?

12. Whether Sections 17 and 18 of PMLA as amended, relating to search and seizure are unconstitutional and void?

13. Is the power of arrest conferred under section 19 PMLA violative of articles 14 and 21 of the Constitution?

14. Whether the offence of Money laundering can continue after the predicate offence has taken place? Can the offence of money laundering be committed even if the predicate or scheduled offence was not a scheduled offence on the date when the scheduled offence was committed?