NEW DELHI: The Supreme Court on Tuesday issued notice to the Union government on a plea by a Congress leader from Madhya Pradesh to declare provisions allowing the Enforcement Directorate to summon an accused under the Prevention of Money Laundering Act, 2002 as ultra vires the Constitution.
The plea challenged 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 petitioner Congress MLA Govind Singh, senior advocate Kapil Sibal submitted before a three-judge bench led 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 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 primarily the challenge is based upon the premise that the provisions of the PMLA allowing an officer of the Directorate of Enforcement to summon any person to record his statement under Section 50 of the act and requiring that person to speak truth in such statements is violative of Article 20(3) and 21 of the Constitution.
It also submitted that the petitioner is conscious of the recent judgment of the apex court whereby a challenge to vires of Section 50 of the PMLA has been turned down in the case of 'Vijay Madanlal Choudhary & Ors vs Union of India & Ors'.
“However, the petitioner being an informed citizen of this country has certain grounds to urge as to why the said judgment in Vijay Madanlal deserves to be held as per incuriam and the issues raised in the present petition deserve to be settled by a larger constitutional bench in terms of Article 145(3) of the Constitution,” the plea stated.
With regard to summons issued against him, the plea said, “petitioner has not been supplied with a copy of the ECIR, nor have any details of the same been provided to the petitioner, therefore, the petitioner herein is completely unaware of the scope of investigation, or the allegations being investigated in relation to which the petitioner is being called upon by the Respondent No.2 (ED)”.
The plea said the non-disclosure of the ECIR or the remit of ED’s investigation would enable a roving and fishing inquiry, which is impermissible in law.
“Not informing the person being summoned as to in which capacity he is being summoned is violative 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 August 25, 2022, the Supreme Court had agreed to review its July 27, 2022, PMLA judgment, which 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.
Acting on a review petition filed by Congress MP Karti Chidambaram, the court had then said there are two main concerns, that is, non-providing of ECIR to accused at the time of arrest and negation of presumption of innocence.
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