Supreme Court for redrafting issues for review of 2022 judgment on validity of PMLA judgment

New Delhi: The Supreme Court on Wednesday directed the Union government and others to redraft the issues to be decided in considering review petitions against the 2022 judgment which upheld the validity of the provisions of the Prevention of Money Laundering Act.

A bench of Justices Surya Kant, N Kotiswar Singh and Ujjal Bhuyan asked the review petitioners and Solicitor General Tushar Mehta to formulate the proposed issues and circulate among them so that questions which require to be determined can be formulated. 

"All the petitions are directed to be listed on August 6, and if need be the matter shall be further heard in August 7," the bench said.

Taking up the matter, arising out of the Vajay Madanlal Choudhary, the bench expressed dissatisfaction over the draft issues framed by the review petitioners, saying the assisting counsel need to do better homework.

The court noted some of the issues framed were such that it could only be considered by a bench of more than three judges.

Mehta said the issues before the court could not go beyond the supply of the ECIR to the accused and the reversal of burden of proof under Section 24 of the PMLA. He said an affidavit has already filed by the Union government which had not been disputed so far.

He emphasised the review petitions cannot go beyond two specific issues.

Senior advocate Kapil Sibal, appearing for the review petitioners, submitted that the court's order must be accepted and the government's affidavit cannot override the court's order. He also pointed out there is a judgment by Justice Abhay S Oka that the accused has a right to get the documents.

He said that the matter should be decided if the issues are to be considered by a larger bench.

In November 2017, a bench of Justices Sanjay Kishan Kaul and R F Nariman (both since retired) had held Section 45(1) of PMLA unconstitutional insofar as it imposes two further conditions for grant of bail to an accused saying this violates Articles 14 and 21 of the Constitution. 

This was overruled by a three-judge bench in July 27, 2022, judgment in the case Vijay Madanlal Choudhary vs Union of India. 

The court had then that “the principle of innocence of the accused/offender is regarded as a human right” but “that presumption can be interdicted by a law made by the Parliament/Legislature”.

The ruling held as valid the twin conditions for bail laid down in Section 45 of the Act. According to the provision when the public prosecutor opposes the bail plea of an accused, the court can grant relief only if it is satisfied that there are reasonable grounds to believe that the accused is not guilty of such an offence and that he is not likely to commit any offence if released on bail.

On a plea by Congress MP Karti Chidambaram and others, the apex court had on August 25, 2022 agreed to review its July 27, 2022, which had upheld the Enforcement Directorate's powers in connection with attachment of property involved in money laundering, arrest, search and seizure under the Prevention of Money Laundering Act.

The court had then flagged two main concerns, that is, non-providing of ECIR to accused at the time of arrest and negation of presumption of innocence.