SC notice to Centre on plea by Congress leader challenging the Section 50 of PMLA

The Supreme Court on Tuesday issued notice to the Union government on a plea by a Madhya Pradesh Congress MLA Govind Singh to declare provisions allowing the Enforcement Directorate (ED) to summon an accused under the Prevention of Money Laundering Act, 2002 (PMLA) as ultra vires the Constitution.

The plea questioned the validity of Section 50 which gave the ED power to summon an accused and record a statement, which is admissible evidence in court of law.

"Section 50 is in direct contravention to the fundamental right against self-incrimination enshrined under Article 20(3) of the Constitution," it contended.

Appearing for the petitioner, senior advocate Kapil Sibal submitted before a three-judge bench presided over by Justice Sanjay Kishan Kaul that plea challenged the Sections 50 and 63 of the PMLA, and the matter is regarding an ECIR in which the person would not even know in what capacity he is being called.

The plea also specifically questioned the validity of the ED's summons issued to the petitioner.

The bench, also comprising Justices Ahsanuddin Amanullah, and Aravind Kumar, sought a response from the Union of India and ED in the matter and fixed it for further hearing after six weeks.

The plea, filed through advocate Sumeer Sodhi, contended allowing an officer of the ED to summon any person to record his statement under Section 50 and requiring that person to speak the truth in such statements is violative of Article 20(3) and 21 of the Constitution.

The petitioner also contended the recent judgment of the apex court Vijay Madanlal Choudhary & Ors vs Union of India & Ors' whereby a challenge to vires of Section 50 of the PMLA has been turned down, deserved to be held as per incuriam.

He also said the issues raised in the present petition deserved to be settled by a larger constitutional bench in terms of Article 145(3) of the Constitution, the plea stated.

With regard to a summons issued against him, the plea said, he has not been supplied a copy of the complaint, leaving him completely unaware of the scope of investigation or the allegations being investigated, in violation of the fundamental rights and scheme of the Code of Criminal Procedure, 1973.

"Every criminal statute must satisfy the test of fair play. There is no procedure in criminal jurisprudence that allows for summoning a person without informing him as to the capacity in which he/she is being summoned,” the plea contended.

On a plea by Congress MP Karti Chidambaram, 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.