PMLA Accused Have Right to Copies of Documents Not Relied on by ED: Supreme Court

New Delhi: The Supreme Court on Wednesday (May 7) ruled that those accused of offences under the Prevention of Money Laundering Act, 2002 (PMLA), are also entitled to copies of documents that the Enforcement Directorate (ED) does not rely on for investigation or prosecution, Bar and Bench reported. 

A Bench of Justices AS Oka and Ujjal Bhuyan ruled that this is part of an accused's right to a fair trial under Article 21 of the Indian constitution. 

"It is held that a copy of the list of statements, documents, materials, objects, exhibits that are not relied upon by the investigating officer must also be furnished to the accused," the apex court held, as per the report.

The objective, the top court added, is to ensure that the accused have knowledge of the documents in the custody of the investigating officer which are not relied upon, so that at an appropriate stage, the accused can apply for a copy of such material under Section 91 of the Code of Criminal Procedure (CrPC) or Section 94 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

This right, the court held, can be exercised even if evidence of both sides is closed.

According to a LiveLaw report, the top court held that the “right to defend” is part of the right to fair trial under Article 21 of the Constitution, and it consists of “the right to lead defence evidence by producing documents and examining witnesses.”

“Therefore, the accused is entitled to exercise the right at the stage of entering defence by compelling the prosecution or a third party to produce a document or thing in their possession or custody. The Court can decline the request of the accused for issuing process for the production of documents only on the limited ground under Section 233(3) CrPC," the bench said, as quoted by LiveLaw.

The apex court said that the PMLA puts a negative burden on the accused when compared to other traditional penal statutes. Therefore, it is all the more important that Section 232(3) of the CrPC is "liberally construed: in favour of the accused. Because the constitutional validity of Section 24 PMLA (which imposes reverse burden on the accused) was upheld on the ground that the accused has full opportunity to show innocence,” it said.

The top court was dealing with an appeal against a Delhi high court order passed in 2019. The case concerned a money laundering case registered against Lara Projects LLP, its directors and shareholders.

The petitioner had claimed that parts of the document copies given to them by the ED were illegible and had certain deficiencies, Bar and Bench reported. As a result, they approached a trial court seeking access to legible copies of these materials.

The trial court held that the accused only need to be given copies of documents relied on by the ED and dismissed their application under Section 207, CrPC (supply of copy of police report and other documents to the accused). The Delhi high court upheld the trial court’s decision, prompting the accused to move the Supreme Court for relief.