- ED got Brahmastra
- Now the power of raids even before the crime
- Property can also be attached
Former Enforcement Directorate director Karnal Singh said that the ED has been strengthened by the recent Supreme Court judgments clarifying various provisions of the Anti-Money Laundering Act (PMLA). Because the agency can now conduct raids including attachment of property even before the ‘Predicate Offense’ is registered. A ‘Predicate Offense’ is an offense that is part of a larger crime and is often associated with money laundering. The apex court issued these directions in a 545-page order on July 27 after hearing petitions related to the procedure to be followed by the ED during investigation of cases under the stringent criminal law explaining the validity of several provisions of the PMLA.
Karnal Singh, a 1984-batch IPS, retired as the head of the ED in 2018 after heading the federal agency for more than three years. Explaining the order, the former ED chief said that the agency’s hands have been strengthened by the Supreme Court’s decision. He said that in some cases, it also fixes the responsibility of investigators to analyze the information before proceeding with any case. Singh said in an interview, “The Supreme Court order strengthens the hands of (ED) at some places. As it says that attachment of property can be done without ‘Predicate Offense’ being there. If the ED officials are satisfied that it is a ‘Predicate Offense’, and the proceeds accrue from the offense and may disappear or cease to be immediately attached, the proceedings under PMLA may be thwarted. So in that case ED can attach that property.
ED will be successful only when ‘Predicate’ agency is successful
“However, at the time of attachment, the ED officer should also write a letter to the ‘Predicate’ agency giving all the evidence so that the ‘Predicate’ agency (like CBI, Police etc.) can take cognizance of it,” he said. register a case and give the copy of the FIR or if it is the agency where FIR is not registered then inform the ED about the concept that they are going to investigate it….” He said that the court order. Clarifies that raids can be conducted by ED even without registering ‘Predicate Offense’. “However, officials have to be careful that what happens if other agencies do not register cases? What if the evidence is not strong enough to make the Predicate Offense not successful? If you see the judgment, it says that if the ‘Predicate Offense’ fails then there is no PMLA offense and hence both the agencies (ED and the agency registering the ‘Predicate Offence’) got tied in the final verdict Huh.”
“What it means is that the ED will be successful only if the ‘Predicate’ agency is successful. Even if you attach property, even if you prosecute, what happens if ‘Predicate Offense’ fails?” says former ED director who saw Supreme Court order as one such direction which gives “clarity” to ED officials, courts and advocates about the meaning of various sections of the Money Laundering Act and hence its “implementation will be smoother than before.” Because if the other agency does not register the case then what will happen to their investigation, what will happen to the attachment, what will happen to the raid? They will all be zero.”
There must be some stopping and balancing within the department
So they (ED investigators) have to exercise self control, there should be some check and balance within the department, so that in cases where no offense is already registered, the senior officer (of the ED) should be prevented from initiating investigation in such cases. It should be looked into first.” Singh also dismissed allegations made by political parties and others that the ED has a very poor conviction rate. The latest Parliament data states that the ED has achieved 23 convictions (convictions have been proved) under the PMLA during its 17-year journey (since 2005). “We have to understand what the conviction rate is. The decision is based on the number of cases decided versus the number of successful cases. It is not the number of cases referred to the court and the number of cases that resulted in a conviction. This difference has to be understood.” He said that the conviction rate of other investigating agencies is around 40 per cent and hence “as such, I would say that these are false allegations against the ED”.
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