What is Prevention of Money Laundering Act (PMLA), 2002?
It was implemented in response to India's international commitment to combating the money laundering threat, including the Vienna Convention.
The PMLA was passed in 2002 and came into effect in 2005 with the goals of preventing money laundering (the process of turning black money into white) and allowing for the confiscation of assets obtained through money-laundering.
The PMLA primarily has three goals:
To stop and regulate money laundering.
To seize and confiscate any assets acquired through money laundering.
To address any additional money laundering-related issues in India.
Role and Powers of ED under PMLA
Role and Powers of ED under PMLA
The PMLA vested a cadre of officers under the Directorate of Enforcement (ED) with powers to prevent money laundering, attach proceeds of crime, and confiscate assets.
Section 50 of the PMLA provides powers of a civil court to the ED authorities for summoning persons suspected of money laundering and recording statements.
However, the Supreme Court held that ED authorities are not police officers.
SC observed in Vijay Madanlal Choudhary v. Union of India (2022) that “the process envisaged by Section 50 of the PMLA is in the nature of an inquiry against the proceeds of crime and is not ‘investigation’ in strict sense of the term for initiating prosecution.”
Section 19 of the PMLA permits superior ED authorities to arrest any person whom they have “reason to believe” is guilty of money laundering based on the material in their possession.
Combined with the stringent conditions for grant of bail under Section 45 of the PMLA, the spectre of arrest by the ED is always real and present.
However, the use of the phrase “reason to believe” indicates that the ED authorities must satisfy themselves of the need for arrest and that such belief must pass the reasonableness test.
As such, this should be the test that courts assessing the necessity of remand must apply, but seldom do.
Dissimilarities between ED authorities and the police:
While the police are required to register a First Information Report (FIR) for a cognisable offence before conducting an investigation.
ED authorities begin with search procedures and undertake their investigation for the purpose of gathering materials and tracing the ‘proceeds of crime’ by issuing summons.
Any statement made by an accused to the police is inadmissible as evidence in court,
Whereas a statement made to an ED authority is admissible.
A copy of the FIR is accessible to the accused, whereas the Enforcement Case Information Report is seldom available.
Concerns over ED
Over the last few years, the ED has assumed powers akin to that of a policing agency and has often been accused of turning its gaze against political opponents of the Union government.
These concerns were bolstered when the Union government granted ED Director Sanjay Kumar Mishra a third extension, which the Supreme Court struck down.
In spite of such high-profile arrests, the ED has only filed charge-sheets after concluding investigation in only 1,142 cases out of the 5,906 cases registered since 2005.
It is apparent that the majority of the focus is unduly spent on effecting pre-trial arrests and not thereafter.
It is reported that 85% of cases registered against politicians involve those belonging to the Opposition parties.
ED is meant to focus on recovering the proceeds of crime in order to redistribute the same to victims. It is not clear whether the ED has managed to do this.
Unfortunately, of late, much of the ED’s powers have been discharged in effecting pre-trial arrests, which used to be the prerogative of the police investigating the predicate offence.
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