Confession by accused under Section 50 PMLA is not judicial confession; can't be used against co-accused: Delhi High Court

The Delhi High Court recently held that the confession by an accused in his/her statement under Section 50 of the Prevention of Money Laundering Act (PMLA) cannot be used against another accused and can only be treated as corroborative evidence [Sanjay Jain v Enforcement Directorate]..Justice Vikas Mahajan said that the Court cannot start with the confession of the co-accused to arrive at a finding of guilt. Rather, after considering all other evidence placed on record and arriving at the guilt of the accused, can the Court consider the statement of the co-accused to receive assurance to the conclusion of guilt, the single-judge held. “Thus, the confessional statement of a co-accused under Section 50 of the PMLA is not a substantive piece of evidence and can be used only for the purpose of corroboration in support of other evidence to lend assurance to the Court in arriving at a conclusion of guilt,” the Court said.It stressed that the proceedings under Section 50 of the PMLA may be judicial proceedings for the limited purpose mentioned in the Act but a confession made by an accused in his statement under Section 50 of the PMLA is not a judicial confession..The Court was of the view that there is no provision in the PMLA like Section 15 of Terrorist and Disruptive Activities Act, 1987 (TADA) or Section 18 of Maharashtra Control of Organised Crime, 1999 (MCOCA) which specifically makes confession of a co-accused admissible against the other accused under certain eventualities.“Therefore, Section 30 of the Evidence Act has to be invoked for consideration of a confession of an accused against a co-accused, abettor or conspirator charged and tried in the same case along with the accused… The expression `the court may take into consideration such confession' in Section 30 of the Evidence Act, signifies that such confession by the maker as against the co-accused himself should be treated as a piece of corroborative evidence,” Justice Mahajan added..The Court returned these finding while granting regular bail to IFFO money laundering case accused Sanjay Jain.It was alleged that Jain along with other co-accused entered into a criminal conspiracy from the year 2007-2014 to cheat and defraud shareholders of the IFFO and Indian Potash Limited (IPL) as well as the government by fraudulently importing fertilizers and other materials at inflated prices..In a detailed judgement, the Court also observed that the statement recorded under Section 50 of the PMLA are recorded in a proceeding which is deemed to be a judicial proceeding and is admissible in evidence but these statements are to be meticulously appreciated only by the trial court during the course of the trial and there cannot be a mini-trial at the stage of bail.However, the Court underscored that when the statements recorded under Section 50 of PMLA are part of the material collected during investigation, such statements can certainly be looked into at the stage of considering bail application albeit for the limited purpose of ascertaining whether there are broad probabilities or reasons to believe that the bail applicant is not guilty.“Meaning thereby, the statements under Section 50 of the PMLA have to be taken at their face value, but in case any such statement is patently self-contradictory or two separate statements of the same witness are inconsistent with each other on material aspects, then such contradictions and inconsistencies will be one of the factors that will enure to the benefit of the bail applicant whilst ascertaining the broad probabilities, though undoubtedly the probative value of the statement(s) of the witnesses and their credibility or reliability, will be analyzed by the trial court only at the stage of trial for arriving at a conclusive finding apropos the guilt of the applicant.”.The Court ultimately held that there are reasonable grounds for believing that Jain is not guilty of the offence and that he is not likely to commit any offence while on bail.He, was, therefore, granted bail..Senior Advocates Dayan Krishnan and Siddharth Aggarwal along with advocates Stuti Gujral, Madhav Khurana, Trisha Mittal, Shaurya Singh, Harsh Yadav, Aditya Mukherjee, Puneeth Ganapathy and Jayati Sinha appeared for Sanjay Jain.ED was represented by Special Counsel Zoheb Hossain and advocates Vivek Gurnani and Baibhav. .[Read Judgment]