Delhi HC issues notice in challenge to Constitutionality of PMLA provisions

The Delhi High Court yesterday issued notice to the Central Government in a petition challenging the Constitutional validity of Sections 3 and Section 4 of the Prevention of Money Laundering (Amendment) Act, 2012. The petition also challenges the validity of Section 24 of the Prevention of Money Laundering Act, 2002 (PMLA)..It further seeks a declaration that the offences under PMLA are not only non-cognizable but also prospective in nature thus applying to offences committed after July 1, 2005..The matter was heard by a Division Bench of Justices Siddharth Mridul and Sangita Dhingra Sehgal..The Petition has been preferred by Shivani Rajiv Saxena, one of the persons named as accused in the second and third supplementary complaint filed by the Enforcement Directorate (ED) in the Agusta Westland case..The Petitioner states that Section 3 of the PMLA Amendment Act of 2012 effective from February 15, 2013 is ultra vires the Constitution of India for being violative of Articles 14, 20 and 21..The Petitioner further asserts that Section 24, which creates a presumption in favour of ED and against an accused, is opposed to the settled principles of criminal law i.e., the accused is innocent until proven guilty and that the onus is always on the prosecution to prove its case beyond reasonable doubt..This codified presumption under Section 24 of PMLA is therefore unconstitutional and in violation of Article 14 and Article 20 of the Constitution of India, the petition claims..“For that Section 24 of the PMLA creates a blanket presumption against the person facing any proceedings relating to proceeds of crime under the PMLA without there being any pre-requisite or pre-condition for raising such presumption, as is the case in presumptions under other penal statutes such as Section 113-A and 113-B of the Indian Evidence Act, 1872 and Section 20 of the Prevention of Corruption Act, 1988.”, it is stated..With respect to the retrospective application of PMLA, the Petition states that in the light of Article 20 of the Constitution of India, a statute cannot operate with retrospective effect without a specific provision to that effect. Since the offence in question in the present case pertains to the period of 2004-2005 when the said offences were not scheduled offences, the Petitioner has contended that the provisions of PMLA would not be applicable..Furthermore, the Petitioner Accused has also sought quashing of the complaint made against her..The Petitioner was neither named in the Original Complaint filed by ED nor the First Supplementary Complaint. Her name appears only in the second and third complaints filed by ED. The Petitioner Accused therefore seeks to quash these subsequent complaints, arguing that no provisions for supplementary complaint are provided under the law..“The scheme of the Code (Code of Criminal Procedure) does not permit investigative agencies to file supplementary complaints or the concerned Special Court from taking cognizance multiple times in the same proceedings.”, the Petition states..The Petition also argues that Section 19 of PMLA Amendment Act of 2012 which empowers certain officers of the Enforcement Directorate to arrest, has no safeguards in terms of Section 41 of the CrPC. Therefore, Section 19 PMLA is “bereft of any constitutional protections guaranteed to the citizens” being investigated under PMLA, and hence infringes Articles 14 and Article 21 of the Constitution..The Petitioner Accused was represented by Senior Advocate Geeta Luthra with Advocates Prateek Yadav and Shivani Luthra Lohiya..Centre was represented by Standing Counsel Anil Soni..The matter would be next heard on December 14, 2018.