CNN Central News & Network–ITDC India Epress/ITDC News Bhopal: The Prevention of Money Laundering Act, 2002 (PMLA), poses a serious challenge to the Indian criminal jurisprudence inasmuch as it permits arrest of a person twice: by the Enforcement Directorate under Section 19 of the Act, and by the police/CBI in the Predicate Offence(s) under any of the laws enumerated in the schedule. It is to be noted that the predicate offence and the offence of money laundering are committed in course of one and the same transaction and yet a person is liable to be arrested twice. This clearly signifies flawed architecture of PMLA from the jurisprudential stand point.
A case under PMLA is registered only after the registration of an FIR relating to the commission of one of the ‘Scheduled Offences’ by the police/CBI. The agency for the investigation of money laundering offenses is the Enforcement Directorate under the PMLA. As per law, the ED can register the ECIR only after the registration of the FIR because money laundering per se is not an offence under PMLA.
Multiple amendments in PMLA
The PMLA was enacted to meet the challenge of money laundering in line with various international initiatives. The Act was repeatedly amended from time to time—in 2005, 2009, 2013 and 2019. The Finance Acts of 2015, 2016, 2018 and 2019 also amended it. Pertinently, the Principal Act had a very small category of scheduled offences but these offences increased exponentially by virtue of these amendments resulting in the law becoming more stringent. However, the purpose of this article is to focus only on one aspect of the law, that is, the liability of a person to be arrested twice by two investigating agencies on the basis of one FIR.
Two investigating agencies
The PMLA comes into play after the registration of a predicate offence by the police/CBI. Based on it, the ED registers the ECIR (Enforcement Case Information Report). Now two agencies carry out separate investigations simultaneously. The police agency investigates the FIR and the ED, the ECIR. On conclusion of investigation, the police may file a chargesheet against the accused under section 173 CrPC in the Special Court. Likewise, the ED may file a criminal complaint under Section 44(b) of PMLA in the same court. The Special Court tries the police chargesheet and the ED’s criminal complaint jointly under Section 44 of the Act.
The unprecedented and unsavory feature of this legal architecture is that an accused is liable to be arrested twice by the two agencies. He, thus, suffers from double whammy. The result is that the remand jurisprudence laid down in section 167 CrPC has turned on its head inasmuch as he is liable to be taken into police custody remand by the two agencies separately, one after the other. Thus, the maximum police remand period has effectively increased to 30 days, as against 15 days in non-PMLA offences.