The Supreme Court on Monday turned down a petition by former Chhattisgarh chief minister Bhupesh Kumar Baghel questioning the Enforcement Directorate’s (ED) powers to carry out “further investigation” and keep filing charge sheets under section 44 of the prevention of money laundering act (PMLA).
A bench of justices Surya Kant and Joymalya Bagchi held that the provision has procedural safeguards as held in the landmark decision of the top court in Vijay Madanlal Chaudhary (2022) upholding the PMLA provisions and left it open for Baghel or any other petitioner to challenge any breach of these safeguards by ED.
Disposing Baghel’s petition, the bench said, “There is no gainsay that if ED/authority has acted contrary to the above stated principles explained in the VMC case, aggrieved persons including the petitioner can approach the appropriate forum or the high court.”
Senior advocate Kapil Sibal appearing for Baghel pointed out that the petition challenged section 44 of PMLA besides other provisions of the anti-money laundering act for being too broad as it allows ED to keep arresting persons, forcing them to give statements, and filing charge sheets, jeopardising the liberty of citizens.
He approached the court apprehending his arrest in the Chhattisgarh liquor scam after his son was arrested last month by the ED.
The bench said, “An investigation is never against an accused. It is against an offence. So an accused, in terms of investigation, may be incidental.” The court said that the provision for further investigation is provided under the Code of Criminal Procedure (CrPC) recognizing the power available with the investigating agency to secure the ends of justice and undertake a voyage in pursuit of finding truth.
“Further investigation also enures to the benefit of the accused to find out if the accused is really culpable,” the court observed.
Sibal questioned such power under section 44 of the PMLA as he observed that ED officer is not a police officer. He questioned that the PMLA being a special statute, not all procedural safeguards under CrPC are applicable to accused arrested by ED.
The court refused to entertain Baghel’s plea by saying, “If at all there is abuse by ED, that does not make the law vulnerable. Breach of procedure in individual cases does not mean there is a constitutional flaw in the legislation. In a case where ED is acting contrary, let the concerned person go to court.”
Baghel’s petition filed through advocate VIpin Nair said, “The PMLA does not, at any stage, confer substantive powers of ‘further investigation’ upon officers of the ED. Section 44 of the Act, which merely deals with the procedural aspects concerning the cognizance and trial of offences before the Special Court, falls under Chapter VII of the PMLA and is not a source of investigative powers.”
It further stated, “The ED is illegally and arbitrarily exercising their power, despite having no express authority under the PMLA, conducting ‘further investigation’ in several cases and filing incomplete or piecemeal prosecution complaints resulting in arbitrary detention, harassment, and a grave violation of fundamental rights guaranteed under Articles 14 and 21 of the Constitution.”