PMLA’s Reversal of Burden of Proof 'Seems To Be Very Very Dangerous’: Kerala HC

The choose talked about that even as comparable provisions do exist in different statutes just like the Narcotics and Drugs and Psychotropic Substances (NDPS) Act, Section forty five of PMLA provides a similarly provision that makes bail greater complicated.

Section forty five says that during instances in which the general public prosecutor opposes the bail software of an accused, a courtroom docket can provide bail best if it's miles glad that there are affordable grounds for believing that the accused isn't responsible of such an offence and that s/he isn't possibly to devote any offence even as on bail.

The debatable PMLA become upheld final yr with the aid of using the Supreme Court in its judgment in Vijay Madanlal Choudhary vs Union of India. Justices A.M. Khanwilkar, Dinesh Maheshwari and C.T. Ravikumar had upheld amendments to the PMLA that carved out exceptions from everyday crook methods beneathneath the Code of Criminal Procedure.

The provisions had been upheld with the aid of using a bench headed with the aid of using Justice Khanwilkar on July 27, 2022, coincidentally,  days earlier than he retired. At the time, LiveLaw said that verdict obtained huge criticism, with senior suggest Dushyant Dave calling it a “blackspot at the Supreme Court”. A month later, a petition become additionally filed in search of a overview. On August 25, the Supreme Court issued word to the Union authorities at the overview petition.

Then Chief Justice of India (CJI) N.V. Ramana, agreeing to pay attention the overview petition, observed:

“We are absolutely in guide of prevention of black cash or cash laundering. Country can not have the funds for such offence. Object is noble. (But) now no longer supplying reproduction of Enforcement Case Information Report (ECIR) and reversal of presumption of innocence which can be  troubles which wishes reconsideration as in step with us.”

Justice Badharudeen, heading a single-choose bench, become thinking about the bail plea moved with the aid of using M. Sivasankar, the previous most important secretary to the leader minister of Kerala, withinside the LIFE Mission case registered with the aid of using the Enforcement Directorate (ED) beneathneath the provisions of the PMLA.

Bar and Bench additionally said the 3 different grounds underlined with the aid of using senior suggest Jaideep Gupta, who become acting for Sivasankar. One, that allegations levelled in opposition to Sivasankar withinside the LIFE Mission case used the equal set of information as withinside the 2020 gold smuggling case, wherein Swapna Suresh is a number of the major accused. Gupta contended that it the Supreme Court held in TT Antony vs State of Kerala that  crimes can not be registered at the equal set of information.

Second, Sivasankar`s recommend stated that out of all officers concerned with the LIFE Mission project, best Sivasankar, who takes place to be the previous most important secretary to the Kerala CM, has been singled out for motion with the aid of using the ED. Third, the defence stated that the quantity of cash speculated to were illegally given to Sivasankar is much less than Rs 1 crore, that's bailable beneathneath the PMLA.

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