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ED's 1700 Raids, 1569 Investigations in 10 Years led to Only 9 Convictions: Adv Menaka Guruswamy Tells SC

Adv Menaka Guruswamy also stressed on the limited right of participation as accused and the infamous reversal of the burden of proof that PMLA imposes.

The Enforcement Directorate (ED) has conducted 1700 raids and 1569 specific investigations since 2011, of which only nine convictions have been secured, Senior Advocate Menaka Guruswamy, on behalf of a petitioner challenging several provisions of the Prevention of Money Laundering Act (PMLA), told the Supreme Court on Wednesday, the LiveLaw reported.

A bench comprising Justice AM Khanwilkar, Justice Dinesh Maheshwari and Justice CT Ravikumar was hearing a batch of petitions seeking safeguards for the ED's arrest, search, and attachment process under PMLA.

"What the agency has been able to secure in hundreds and hundreds of cases has been attachment of property, arrest, months of scheduled and unscheduled interrogation, seizing of properties, signing of documents, self-incrimination, resulting in a violation of well-established principles that we agreed to in 1950 when the Constitution came in," she urged

Guruswamy submitted that her client, the CEO of a company, was arrested, had her property and only home seized and attached by the authorities, and was subjected to months of interrogation. She added that her client got a copy of the ECIR two years after her only home was attached. "She happens to be a national awardee, recognised for good work by the President of this country. And how does she get a copy of this? Because she chooses to challenge the attachment before the Appellate Tribunal. The Appellate Tribunal rules in her favour and then the ED is obligated to attach a copy of the ECIR. Can we imagine a world where for multiple years I am interrogated, I am threatened, I am arrested, I have my home attached and it is only when I choose to challenge before the appellate tribunal that I finally get a copy of the actual complaint? That is the world we don't have to imagine, that is today's world of PMLA!", she argued, as quoted by LiveLaw.

Guruswamy added that the value of the property attached in the case was a little under Rs 10 crores. However, the appellate tribunal found that only property worth Rs 65 lakh, which the petitioner was initially charged with laundering in the predicate offence, should have been attached.

"Mine was one of the last cases adjudicated by the tribunal. Because post-2019, the appellate Tribunal has been virtually unstaffed, no appointments made, no chairman, systematically the members have been retiring. Today, only one member of a five-person committee is serving. If today I had challenged, I would not have been heard because the appellate tribunal is unstaffed and unserviceable, eliminating the remedy

that I have about that unjustified attachment!" submitted Guruswamy.

According to the LiveLaw report, she indicated the following propositions she wished to raise:

"1. Provisions of the PMLA must stand the test of due process under Article 21

2. Section 50 of the PMLA entrenches upon the right to liberty of persons summoned

under the act and violates the right against self-incrimination;

3. Section 44(1)(d) of the PMLA creates irreversible prejudice in the accused as to the

trial which is adjudicating the predicate offence;

4. PMLA creates an overbroad offence with no fetters on investigatory Powers;

5. The Schedule of offences renders several bailable offences as non-bailable;

6. Provisions of the PMLA regarding attachment run contrary to the provisions in

statutes containing the predicate offence;

7. Adjudicatory paralysis of the appellate tribunal."

She further submitted, "The ECIR is six years old, and the court is yet to take cognisance. The scheme of the PMLA has enabled seizure of assets, examination of the petitioner under the special procedure and search under section 50, a six-year-long pre-trial procedure both in the predicate offence and in the laundering offence, limited right of participation as accused and the infamous reversal of the burden of proof that PMLA imposes."

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