PMLA- Money Laundering Cases

Money laundering is a plague to Indian economy, as it tend to shake the integrity and sovereignty of the nation. And therefore, in order to combat the same, the Indian Parliament enacted the Prevention of Money Laundering Act, 2002. According to Section 3 of the Prevention of Money Laundering Act, 2002 states the offence of money laundering, “whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime and projecting it as untainted property shall be guilty of offence of money-laundering.

                                                                                           Prevention of Money-laundering Act, 2002

· Attachment Order- Provisional Attachment Order

· Burden Of Proof.

· CrPC- Mandatory Compliance of Ch.XII of the CrPC, i.e. S-155, 177(1) and 172 of CrPC in the investigation under PMLA, 2002. The said provisions of the CrPC shall apply wrt to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under PMLA, 2002, insofar as they are not inconsistent with the provisions of the PMLA, 2002.

· Directorate of Enforcement, ED-

· ECIR (Enforcement Case Information Report)- It is just like the police registers a First Information Report (FIR) before starting investigation in a cognizable offence, similarly the ED registers an ECIR upon receiving information of the commission of the offence of Money Laundering.

· Presumptions Under PMLA, 2002- (i) Presumption as to records or property; (ii) Presumption as to inter-connected transactions.

· Proceeds Of Crime-

· Provisional Attachment Order [PAO]-

· Investigating Agency/ Enforcement Agency- Enforcement Directorate [ED]-

· Investigation- Legal Issues surrounding the issue of investigation under PMLA, 2002- The investigation under PMLA is dependent upon commission of a predicate offence. While in cases where the predicate offence is cognizable filing of an ECIR pursuant to filing of an FIR seems to be reasonable, taking note of the gravity of the offence and situation.

                                                                                                Prevention of Money-laundering Act, 2002

· S-3/4- PMLA, 2002-

· S-12 PMLA, 2002- Banking companies, financial institutions and intermediaries to maintain records-

· S-15 PMLA, 2002- Procedure and manner of furnishing information by banking company, financial institution and intermediary

· S-22 PMLA, 2002- Presumption As To Records Or Property In Certain Cases.

· S-23 PMLA, 2002- Presumption In Inter-Connected Transactions.

· S-24 PMLA, 2002- Burden Of Proof.

                                                                                                      Courts & For a, PMLA,2002

· Supreme Court Of India

· High Court

· Special Judge, PMLA

· Appellate Authority, PMLA, New Delhi

· Adjudicating Authority, PMLA

                                                                                    Issues Pending Consideration Before Supreme Court Of India

                                                                                                             [As On 18.08.2021]

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?

                                                                                                      Judgments- PMLA, 2002

· Pankaj Grover Vs - Directorate Of Enforcement, Govt. of India, Lucknow- Anticipatory Bail Rejected.

· Nikesh Tarachand Shah v. Union of India and Anr. - (2018) 11 SCC 1- S-45(1) of the PMLA, as it then stood, had been declared unconstitutional by the Hon'ble Supreme Court- The defect pointed out by the Hon'ble Supreme Court, was subsequently cured by the the Legislature through its Amendment Act No.13 of 2018.

Judgments- PMLA, 2002

[On The question of investigation under PMLA, 2002]

· Gurucharan Singh v. Union of India- Delhi High Court Judgment.

· Ashok Munilal Jain v. Assistant Director- Supreme Court Of India Judgment.

· Vakamulla Chandrashekhar v. ED- Delhi High Court Judgment.

· Hari Narayan Rai v. UOI- Jharkhand High Court

· Rajbhushan Omprakash Dixit v. UOI- Supreme Court Of India Judgment.

Vir Bhadra Singh v. ED- Delhi High Court Judgment.

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