Supreme Court defers to Oct 16, 17 hearing on pleas seeking review of 2022 PMLA verdict

Appearing for the ED, Solicitor General Tushar Mehta sought one more week’s time as he was yet to get all the petitions. Senior Advocate Kapil Sibal, appearing for some of the petitioners, initially opposed it but agreed subsequently.

The court had initially deferred the matter to October 3, but later in the day, the apex court said it will be heard on October 16 and 17 as Justice Ravikumar has some difficulties with the earlier date.

In November 2017, a bench of Justices Rohinton Fali Nariman and Sanjay Kishan Kaul, in Nikesh Tarachand Shah vs the Union of India, had declared the ‘twin test’ of bail under PMLA as “unconstitutional” since it was “manifestly arbitrary”.

“We must not forget that Section 45 is a drastic provision which turns on its head the presumption of innocence which is fundamental to a person accused of any offence. Before application of a section which makes drastic inroads into the fundamental right of personal liberty guaranteed by Article 21 of the Constitution, we must be doubly sure that such provision furthers a compelling State interest for tackling serious crime,” the bench had said.

It had also said that stringent bail conditions can be imposed in exceptional circumstances such as anti-terrorism laws but cannot be “manifestly arbitrary.”

On July 27, 2022, this was overruled by a three-judge bench presided by Justice A M Khanwilkar and comprising Justices Dinesh Maheshwari and C T Ravikumar in Vijay Madanlal Choudhary vs the Union of India.

The bench held as valid the twin conditions for bail laid down in Section 45 of the Act. The provision says 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 the accused is not guilty of such an offence and is not likely to commit any offence if released on bail.

Ruling on a batch of 242 pleas, the bench upheld the PMLA law, as amended from time to time, including provisions dealing with the powers of the ED regarding arrest, search, attachment and seizure in money laundering offences.

The bench underlined 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”.

An ECIR cannot be equated with an FIR and supplying a copy of the ECIR in every case to the person concerned is not mandatory, the bench had said, adding that “it is enough if ED, at the time of arrest, discloses the grounds of such arrest”.

Taking up a review petition in August 2022, a three-judge bench, presided by the then CJI N V Ramana, had said that “at least two of the issues” raised in the petition requires reconsideration — the finding that a copy of ECIR need not be given to the accused and two, reversal of the presumption of innocence.