Plea in Delhi HC seeks to strike down section of PMLA

New Delhi [India], August 6 : A Petition has been moved in the Delhi High Court seeking to strike down of Section 44(1)(c) of the Prevention of Money Laundering Act, 2002 stating it manifests arbitrary, unreasonable and is violative of the petitioner's rights under Articles 14,19 and 21 of the Constitution of India.
The Division Bench of Justice Siddharth Mridul and Justice Anup Jairam Bhambhani on Friday issued notice to the Enforcement Directorate (ED) and Central Bureau of Investigation (CBI) on the petition seeking stay on proceeding going on trial court in this regard.
The petitioner challenged the order dated February 18, 2021, by a magistrate Court allowing the application of ED u/s 44(1)(c) of the Prevention of Money Laundering Act, 2002 and committed the prosecution case of the CBI against the petitioner, (being the scheduled offence) to the Session Court.
The petitioner is an NGO Advantage India through Advocate Tanveer Ahmed Mir and Advocate Prabhav Ralli submitted before the bench that the said provision is unconstitutional to the extent that it uses the word "shall" and makes it mandatory upon the court trying the scheduled offence, to commit and transfer the trial in the scheduled offence to the court of sessions trying the money laundering offence upon an application, even when the same is not expedient in the interest of justice or deemed appropriate in the fact and circumstances of the case.
The petitioner counsel further raises a question that in a matter where certain offences have been exclusively held to be triable by a court of Magistrate, any committal/transfer of a trial of such an offence to a higher court i.e. the court of sessions would deprive the right of a forum/appeal entitled to him/her under the law and consequently seriously prejudice and hamper the right to life and liberty guaranteed under Articles 14, 19 and 21 of the Constitution of India.
The Petitioner Advantage India is one of the accused firms facing the probe regarding misappropriation of funds under various sections of the Foreign Contribution Regulation Act (FCRA), 2010, Indian Penal Code (IPC) and PMLA by CBI and ED.
The plea stated that the CBI had registered an FIR in 2017 under various sections of FCRS and IPC, against the Petitioner (Advantage India) and a few other accused persons, on the basis of communication issued on August 4, 2017, by the office of Director FC&MU (Foreign Contribution Monitoring Unit), Ministry of Home Affairs, Government of India.
Later ED registered an Enforcement Case Information Report (ECIR) despite being very well aware that primarily the FIR registered by CBI was based on alleged violation of receipt of foreign contributions, the covenants of the FCRA, which is not even in the schedule of PMLA, 2002, the plea read.