[20/05, 08:34] sekarreporter1: OVERARCHING DRACONIAN PMLA STATUTE MUST BE FIXED
P WILSON
C ONTRARY to the origi nal intent of giving ef fect to the UN General Assembly in 1998 to com- bat the severe concern of drug money being used to pro- mote terrorism, the application of the Prevention of Money Laundering Act, 2002 (PMLA) has been criticised for abusing the powers and conferring ex- cessive authority to the En- forcement Directorate for every ordinary crime.
When enacted in 2002, it was to curb the crime proceeds de rived under the NDPS Act, IPC, Immoral Traffic (Prevention) Act, The Arms Act, and Preven tion of Corruption Act. How ever, the current list encom passes almost every penal law in India for which a remedy al ready exists, transforming PMLA into a superseding law.
While investigating agencies are bound by the Criminal Pro cedure Code (CrPC) in wielding police powers, under the PMLA, authorities who are not police officers take precedence over any substantive law, including the CrPC. Armed with the three judge bench of the Supreme Court’s interpretation in the case of Vijay Mandanlal Choud
FOOTNOTE
hary Vs Union of India, the ED is neither obliged to wait for an FIR under the substantive Schedule Act before initiating investigations nor share with the accused the reasons for in quiry. The other unsafe proce- dures found in the Act are not limited to procedures relating to the commencement of inves tigation, and for summoning
individuals, but while remand- ing by the magistrates, they need not be informed of the reason for the arrest.
The draconian twin bail con- ditions to be satisfied for con- sidering bail application of the accused, which is encouraging preventive detention of ac- cused indefinitely is another unsafe procedure.
Recording of the statement
by ED officials tendered during the summoning of accused or third parties under duress which are devoid of any safe guards; usurping jurisdictions over unlisted scheduled offenc es to confer jurisdiction on themselves and which can even bring day-to-day commercialor business transactions to a standstill; accused need not be disclosed with charged offences during investigation; attaching a property and taking posses sion even before the conclusion
A superseding law
PMLA was to curb crime proceeds derived under NDPS Act, IPC, Immoral Traffic (Prevention) Act, The Arms Act, and Prevention of Corruption Act. The current list encompasses almost all penal laws for which a remedy exists, making PMLA
into a superseding law
of Trial and so on makes the list extensive.
Unjustifiable incarceration in cases without any evidence where the accused are denied bail and confined in jail even before trial for months raises much concern. What will hap pen if the accused is acquitted later for lack of evidence?
It is alleged that the present union government uses ED of ficials for political poaching.
When opponents resist, they are arrested and imprisoned on
baseless allegations. The arrest of Hemanth Soren and Arvind Kejiriwql just before the elec tions are standing textbook ex- amples of gross abuse of politi cal power with ulterior motives. Having slept over for many months, such custodial interro gation is unwarranted and ob-
vious. No doubt, these statutory officials who misuse their pow er will be punished under the same Act for false prosecutions, but by then, the damage done to the party in power and the person detained is irrepa- rable, and no amount of punishment to these power-yielding officials is going to compensate for the damage. Suffice it to say that the Act em-
powers the En-
forcement Di-
rectorate to be a
sweeping authority in India, with wide-ranging powers, con stitutional guarantees, and safeguards swept under the carpet of PMLA.
Voluminous docu- ments available in the public domain sug- gest the abuse
of PMLA powers by some offic- ers, including allegations of
seeking bribes and summoning farmers who fail to sell their land to influential people. Due to the illusionary unfettered
powers of the Enforcement Di- rectorate with the potential to abuse and infringe upon indi- vidual rights, the existing un accountable PMLA warrants a meticulous immediate revamp or complete repeal to protect constitutional guarantees and to prevent the common man from being harassed and being allegedly misused as a tool to indulge in extortion against business community, political opponents besides becoming an
Above all, it is alleged that constitutional courts are watch ing helplessly
ED claims to have sky-high powers to barge inside any state government’s office to seize classified documents, summon and arrest any per son, compel the officials to tes tify against the state irrespec- tive of their being accused, conduct raids in govern ment properties flouting federalist principles, in dividual liberties and constitutional
guarantees.
overarching penal statute. P Wilson is senior advocate and Member of Parliament
Footnote is a weekly column that discusses issues relating to Tamil Nadu
[20/05, 08:34] sekarreporter1: 👍
