(Petitioner) Memorial For Reference

IIT Bombay’s Mood Indigo National Moot Court Competition 2022
TEAM CODE: 10
TEAM CODE: TC-24
IIT BOMBAY’S MOOD INGIDO NATIONAL MOOT COURT COMPETITION, 2022
Before
THE HON’BLE SUPREME COURT OF MINDIA

(FILED UNDER ARTICLE 32 OF THE CONSTITUTION OF MINDIA, 1950)
IN THE MATTER OF
WRIT PETITION No._____/2022
Along with
SPECIAL LEAVE PETITION No._____/2020
BOMBAIM’S CIVIL LIBERTY UNION

&
Mr DADA DEV KUMAR …. PETITIONERS
VS
UNION OF MINDIA …. RESPONDENT
MEMORANDUM ON BEHALF OF THE PETITIONERS
COUNSEL APPEARING ON THE BEHALF OF THE PETITIONERS

MEMORIAL ON BEHALF OF PETITIONERS 1|Page
TABLE OF CONTENTS
LIST OF ABBREVIATIONS……………………………………………………………3
INDEX OF AUTHORITIES………………………………………………………….….4
• CASES CITED
• STATUTES
• BOOKS REFERRED
• LEGAL DATABASE
STATEMENT OF JURISDICTION…………………………………………………….6
STATEMENT OF FACTS……………………………………………………………....7
STATEMENT OF ISSUES……………………………………………………………...8
SUMMARY OF ARGUMENTS………………………………………………………..9
ARGUMENTS ADVANCED………………………………………………………….10
SUBMISSIONS/PRAYER………………………………………………………….….27

LIST OF ABBREVIATIONS
SC Supreme Court
HC High Court
UAPA Unlawful Activities Prevention Act
SC Supreme Court
C.r.P.C. The Code of Criminal Procedure
Art. Article
Sec. Section
Const. Constitution
Re. Reference
IPC Indian Penal Code
Hon’ble Honourable
PMLA Prevention of Money Laundering Act
Cri. App. Criminal Appeal
Ld. Learned
AIR All India Record
SCR Supreme Court Reporter
MAD Madras
Para Paragraph
KAR Karnataka
U. P Uttar Pradesh
M. P Madhya Pradesh
CRL. O.P. Criminal Original Petition
Cl. Clause
Sub Cl. Subordinate Clause
SSC State Security Court
AIR All India Report
Crl Criminal Reference Letter
Misc. Miscellaneous

INDEX OF AUTHORITIES
❖ CASES CITED
• Nikesh Tarachand Shah v. Union of India & Anr., (2018) 11 SCC 1

• Vijay Madanlal Choudhary & Ors. v. Union of India & Ors. SLP(Crl.) No. 4634 of 2014
• Mahipal Singh v. Central Bureau of Investigation & Anr., Criminal appeal no. 682 of 2014.
• Tech Mahindra Limited v. Joint Director, Directorate of Enforcement, Hyderabad & Ors. Special
leave petition (criminal) No.34143 of 2017
• Gadi Nagavekata Satyanarayana v. Deputy Director Directorate of Enforcement, Special Leave
Petition No. 5477 of 2018
• Arun Kumar Mishra vs. Directorate of Enforcement CRL. M.C. 5508/2014
• Directorate of Enforcement v. Surajpal & Ors 2018 SCC OnLine Del 10472
• Inspector of Police, CBI v. Assistant Directorate, Directorate of Enforcement (PMLA) & Anr,
Crl.MP.No.3709 of 2019
• Nahar Singh Yadav & Anr. v. Union of India & Ors, Special leave petition (c) no. 12981 of 2008
• Himanshu Singh Sabharwal v. State of Madhya Pradesh & Ors., (2008) 3 SCC 602
• Deep Chand v. The State of Uttar Pradesh & Ors., 1959 AIR 648
• Gudikanti Narasimhulu & Ors. v. Public Prosecutor, HC of Andhra Pradesh, (1978) 1 SCC 240
• Youth Bar Association of India v. Union of India & Anr.
• Re v. State of Andhra Pradesh & Ors.,1 (2021) 10 SCC 598
• Nitya Dharmananda & Anr. v. Gopal Sheelum Reddy & Anr. (2018) 2 SCC 93
• E.P. Royappa v. State of Tamil Nadu & Anr., (1974) 4 SCC 3
• Ashok Munilal Jain & Anr. v. Assistant Director, Directorate of Enforcement, (2018) 16 SCC 158
• State of Bombay v. Kathi Kalu Oghad, 1961 AIR 1808
• M.P. Sharma & Ors. v. Satish Chandra, District Magistrate, Delhi & Ors., (1954) SCR 1077
• Sakiri Vasu v. State of Uttar Pradesh & Ors., (2008) 2 SCC 409
• Nandini Satpathy v. P.L. Dani & Anr (1978) 2 SCC 424
• Somasundaram alias Somu v. State represented by the Dy. Comm. of Police, (2020) 7 SCC 722
• Arnab Goswami v. The State of Maharashtra, Criminal Appeal No. 742 of 2020
• Giri Raj v. State of Haryana, CRM-M No.19535 of 2018
• Sanjay Chandra v. CBI, Criminal Appeal No.2178 of 2011
• P. Chidambaram v. Directorate of Enforcement, Criminal Appeal no.1831 of 2019
• Ranjitsing Brahmajeetsing Sharma v State of Maharashtra, Criminal Appeal No. 523 of 2005
❖ STATUTES
• The Constitution of India, 1950
• Indian Penal Code, 1860
• Prevention of Money Laundering Act, 2002
• Criminal Procedure Code (Amendment) Act, 2009
• The Unlawful Activities (Prevention) Act, 2008
❖ BOOKS REFERRED
• The Code of Criminal Procedure, Ratanlal & Dhirajlal, 22nd Edition

• Indian Penal Code, Basu, 15th Edition
• The Unlawful Activities (Prevention) Act, 2008, Lawmann’s Series
• Guide to Prevention of Money Laundering Act, 2002, Taxmann’s Series
• The Code of Criminal Procedure, Tandon, 19th Edition
• Indian Penal Code, Ratanlal & Dhirajlal, Student Edition
❖ TREATIES & CONVENTIONS
• United Nations Convention Against Transnational Organized Crime
❖ LEGAL DATABASE
• www.Casemine.com
• www.IndianKanoon.com
• www.BlogIpleaders.com
• www.LatestLaws.com
• www.LegalservicesIndia.com
• www.scconline.com

STATEMENT OF JURISDICTION
It is most humbly submitted in this memorandum that the Appellant has approached the Hon’ble
Supreme Court of Mindia under Article 32 of the Constitution 1.
The Appellant humbly submit before this Hon’ble court that it has the jurisdiction, power and authority
to preside over the present case.
1
Article 32 in The Constitution of India,1950
32. Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is
guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2), Parliament may by law empower
any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court
under clause (2)
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

STATEMENT OF FACTS
❖ Dada Dev Kumar, a social worker and a son of a businessman. He is famous in Bombaim and
Silkasa for his Philanthropy. He started an NPO named ‘Dada Jan Seva Mission’ for the welfare of
people on a non-profit basis, wherein Dada became the executive director.
❖ With his growing popularity, he was approached by various political parties to be their candidate
for upcoming elections, including the majority ruling party, People’s Party of Mindia (PPM).
Although he declined all offers and formed his party, ‘Jan Vikas Morcha’ (JVM) based on socialist
principles.
❖ He participated in protests against the (CAA) introduced by the ruling party governing the Centre
and the state of Saurashtra. Because of the upcoming elections, Dada decided to delegate the work
of NPO, to Mr. Rakesh and appointed him as Executive Director. He joined the party and was
working hard although his conduct was wily.
❖ Anupam, a student and a member of a religious minority joined Dada’s party. Rakesh appointed
him as a member of NPO.
❖ During Anupam’s tenure on the committee, a sum of Rs. 80 Lacs was deposited in his personal bank
account by a foreign NGO. Further, those 50 Lacs were directly deposited into the account of the
NPO and the remaining 30 Lacs were deposited into the accounts of ten different individuals. NIA
took notice of the same and found that the foreign NGO is associated with TGB (a terrorist
organization) and the ten individuals were involved in the riots against the protests CAA across
India.
❖ The NIA arrested these ten individuals along with Anupam and declared the NPO as a terrorist
organization under UAPA. They discovered the assets possessed by Rakesh and Involved ED. The
ED arrested Dada soon after he returned from London after his medical treatment. While Rakesh
was still absconding.
❖ Dada, Rakesh, and Anupam were charged under UAPA and PMLA, and proceedings were initiated
against them.
❖ Dada filed a bail petition in the Special Court which was denied. Then the High Court, where his
bail was again denied. Finally, Dada approached the SC and filed a SLP.
❖ An NGO ‘Bombaim’s Civil Liberty Union’ filed a petition in the SC challenging the inadequacies
in PMLA and the arbitrary procedure followed by ED is violative of their Fundamental rights and
is ultra-vires of the constitution.
❖ The SC clubbed both the petitions are now listed before a five-judge bench to decide upon the
validity of the provisions of the PMLA and granting of bail to Dada.

STATEMENT OF ISSUES
1. WHETHER THE SUBSTANTIVE PROVISIONS I.E. SECTION 3, SECTION 4,

SECTION 44 AND SECTION 45 OF PMLA, 2002 ARE ULTRA VIRES THE
CONSTITUTION?
2. WHETHER THE PROCEDURE FOLLOWED BY ED UNDER THE PMLA

VIOLATES THE FUNDAMENTAL RIGHTS OF THE PETITIONER?
3. WHETHER BAIL SHOULD BE GRANTED TO MR DADA DEV KUMAR IN THE

PRESENT CASE?
8|Page
MEMORIAL ON BEHALF OF PETITIONERS
SUMMARY OF ARGUMENTS
1. WHETHER THE SUBSTANTIVE PROVISIONS I.E. SECTION 3, SECTION 4,

SECTION 44 AND SECTION 45 OF PMLA, 2002 ARE ULTRA VIRES THE
CONSTITUTION?
It is humbly submitted before this Hon’ble Supreme Court that the present petition has been filed to
challenge the constitutionality of the Prevention of Money Laundering Ac, 2002. The said offences
are inconsistent with the constitutional principles. The wide scope under Sec 3 and Sec 4 have been
unreasonable when the individual is prosecuted under the same. Additionally, the sec 44 and 45
categorizing the offence as non bailable and cognizable is arbitrary taking into consideration the
heinousness of the offence and the strict principles under the same run contrary to the said principles
and objective of the act.
2. WHETHER THE PROCEDURE FOLLOWED BY ED UNDER THE PMLA VIOLATES

THE FUNDAMENTAL RIGHTS OF THE PETITIONER?
It is humbly submitted before this Hon’ble court that the procedure laid down by the cat is arbitrary
and gives un fettered powers to the ED officers leading to the investigation procedure getting
compromised. The procedure leads to the presumption of guilty nature of the alleged accused before
the said been proved. Thus, the procedure being contrary to the CrPC procedure should be declared
unconstitutional.
3. WHETHER BAIL SHOULD BE GRANTED TO MR DADA DEV KUMAR IN THE

PRESENT CASE?
It is mostly humbly submitted before this Hon’ble court that the said petition challenging the
bail denied by the subordinate court and the Hon’ble High court wherein the said courts have
failed to consider the presumption of the accused being innocent and prime ingredients while
dealing with the said case. Thus, the special leave petition has been filed to review the decision
of the Hon’ble high court.
9|Page
ARGUMENTS ADVANCED
ISSUE 1: WHETHER THE SUBSTANTIVE PROVISIONS I.E. SECTION 3, SECTION 4,

SECTION 44 AND SECTION 45 OF PMLA, 2002 ARE ULTRA VIRES THE CONSTITUTION?
1. It is humbly submitted before this Hon’ble Court that the present writ petition along with Special leave
petition has been filed to test the constitutionality of the Prevention of Money laundering act. The said
sections are interrelated to their application and their usage while levelling against the alleged accused.
Firstly, while dealing the presence of proceeds of crime leading to money, laundering, the applicability
of sec 3 needs to be established.
Section 31 of the PMLA, 2002 defines money laundering –
2. Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or

is actually involved in any process or activity connected with the 1 [proceeds of crime including its
concealment, possession, acquisition or use and projecting or claiming] it as untainted property shall
be guilty of offence of money-laundering. 2 [Explanation. —For the removal of doubts, it is hereby
clarified that, —
(i) a person shall be guilty of offence of money-laundering if such person is found to have directly or
indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved
in one or more of the following processes or activities connected with proceeds of crime, namely: —
(a) concealment; or
(b) possession; or
(c) acquisition; or
(d) use; or
(e) projecting as untainted property; or
(f) claiming as untainted property, in any manner whatsoever;
(ii) the process or activity connected with proceeds of crime is a continuing activity and continues till
such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or
possession or acquisition or use or projecting it as untainted property or claiming it as untainted
property in any manner whatsoever.
1
Prevention of Money-Laundering Act, 2002, § 3, No. 112, Acts of Parliament, 2002 (India)
10 | P a g e
2. It may be rightly pointed out that the above crime is related to the proceeds of crime derived from the
scheduled offense committed by the person who is directly or indirectly involved in the proceeds of
crime.
PMLA defines proceeds of crime under sec 2 (u) 2
“Proceeds of crime” means any property derived or obtained, directly or indirectly, by any person
as a result of criminal activity relating to a scheduled offence or the value of any such property or
where such property is taken or held outside the country, then the property equivalent in value held
within the country or abroad.
3. Petitioner humbly submits that the section on money laundering is inclusive of three basic elements.
Proceeds of crime, Commission of the predicate offense, and projecting and claiming the property as
untainted property. It is humbly submitted that the predicate offense is in consonance with
committing the scheduled offense under the said act. The said act is punishable and illegal leading to
the allegation of dealing in proceeds of crime culminating in the commission of the said offense u/s
3 of the Act.
4. Firstly, the offense is initiated with the commission of the predicate offense. PMLA defines predicate
offence i.e., the scheduled offence as
“Scheduled offence” means— (i) the offences specified under Part A of the Schedule; or (ii) the
offences specified under Part B of the Schedule if the total value involved in such offences is [one
crore rupees] or more; or (iii) the offences specified under Part C of the Schedule.
5. When the person who is alleged to have been involved within the abovementioned criteria of
committing a crime, would have cleared one of the ingredients to be included in the exercise of money
laundering. Petitioners humbly submit that the definition of the proceeds of crime is elaborate to
cover the benefits out of the transaction benefitted by the person involved in the act of committing
the scheduled offence or in possession of the property or monetary benefit. The definition covers
“any person” leading it to cover a wide scope of people involved in the act.
6. It is humbly submitted before the Hon’ble court that the prime ingredient responsible for it being in
eyes of unconstitutionality is the many facets of the proceeds of crime stated in Sec 3. The initial
facets of the crime including concealment, possession, acquisition, and use of proceeds of crime
frame the section within the limits. When the issue of projection or concealment is raised the section
directs towards giving wide power to the Enforcement Directorate. It is to be borne in mind when the
offence of money laundering is considered it is to be read as projection and concealment of the
2
Prevention of Money-Laundering Act, 2002, § 2, cl. u, No. 112, Acts of Parliament, 2002 (India)
11 | P a g e
proceeds of crime. Section 3 is sought to be altered by reading “and” as “or”. Relying upon the reports
and speeches of the Minister in the Parliament. Additionally, he has placed reliance on the Vienna
Convention and United Nations Convention Against Transnational Organized Crime, 2000, which
state that money laundering is only committed if the ‘use’ and/or ‘concealment’ is ‘for the purposes
of concealing or disguising the illicit origin of the property’ or ‘helping any person who has been
involved in the commission of the predicate offence to evade the legal consequences of his/her
action’3141. The said was emphasized in Nikesh Tarachand Shah v. Union of India & Anr. 4, wherein
it has been held that,” Under Section 3 of the Act, the kind of persons responsible for money
laundering is extremely wide. Words such as “whosoever”, “directly or indirectly” and “attempts to
indulge” would show that all persons who are even remotely involved in this offence are sought to
be roped in. An important ingredient of the offence is that these persons must be knowingly or
actually involved in any process or activity connected with proceeds of crime and “proceeds of crime”
is defined under the Act, by Section 2 (u) thereof, to mean any property derived or obtained directly
or indirectly, by any person as a result of criminal activity relating to a scheduled offence (which is
referred to in our judgment as the predicate offence).
7. Thus, whosever is involved as aforesaid, in a process or activity connected with “proceeds of crime”
as defined, which would include concealing, possessing, acquiring or using such property, would be
guilty of the offence, provided such persons also project or claim such property as untainted property.
Section 3, therefore, contains all the aforesaid ingredients, and before somebody can be adjudged as
guilty under the said provision, the said person must not only be involved in any process or activity
connected with proceeds of crime, but must also project or claim it as being untainted property.” The
said judgement had a view which was in contrast to the later judgement of Vijay Madanlal
Choudhary5 which dealt with the said section but failed to find any irregularity claiming the scope to
be in resonance to the objective of the act and regulation by the FATF.
8. Petitioners humbly submit that when the facet of constitutionality is considered, the irregularity in
the judgments passed by different high courts while dealing with proceeds of crime, offence of money
laundering and offences triable by special court u/s 44 cannot fail to be dealt with.
9. It is submitted that Sec 2 (u) is the reason for Sec 3 i.e., the section defining money laundering,
moreover when the offence is concerning the proceeds of crime. If the order of acquittal is granted
by the court dealing with the predicate offence it is reasonable to assert that the proceeds raised out
of the said crime are devoid of any illegal traces. In such a case, Section 3 offence cannot be given
3
United Nations Convention Against Transnational Organized Crime, 2000
4
Nikesh Tarachand Shah v. Union of India & Anr., (2018) 11 SCC 1
5
Vijay Madanlal Choudhary & Ors. versus Union of India & Ors. SLP(Crl.) No. 4634 of 2014
12 | P a g e
pre-eminence, as that would run contrary to Section 3 and would be manifestly arbitrary, given the
fact that an acquittal in the scheduled offence cannot lead to one being found guilty for the derivative
offence of money-laundering. A direct link is present between the predicate offence and the offence
money laundering u/s 3. The Special Court cannot continue with the trial for Section 3 offence once
acquittal in the predicate offence takes place. Section 44 unmistakably provides for the Special Court
trial of money-laundering. It is to be noted that in practice it is normal that if one is acquitted for the
predicate offence, the money-laundering procedure could still go on. This is contrary to the definition
under Section 3, which is in relation to the proceeds of crime in consonance to predicate offence.
10. It is humbly submitted before this Hon’ble court that the wide powers given to the officers under the
act have widened the investigation beyond what is contained in the chargesheet. This is contrary to
the intentions of the Act. The true meaning of the definition under Section 3 of the PMLA as stated
earlier was proposed to be divided into three components of the predicate offence, proceeds of crime,
and projecting/claiming as untainted. It was conceded that even abetment would form a part of the
offence and as a consequence, whoever attempts, assists, abets, incites – are all covered by the same.
For predicate offence and Section 3, it was stated that if the former is gone, the latter cannot subsist.
The High Court of Madras and Bombay have taken a stance in varied judgments stating that though
the predicate offence stands decided in favour of the accused but the allegations under the act remain
undecided and won’t affect the trial and investigation under the act leading to be declared as a
standalone offence.
11. Additionally, the issue is to be raised before the court regarding the investigative rights and the
exceeding boundaries of the officials under the said act. The investigation under the said act needs to
be restricted and widened interpretation by the officials under the said section leads to unreasonable
use of power.
12. Petitioners state that the determination of the money laundering under section 3 of the act has to be
relevant in time and in relation to the time when the scheduled offence was committed. The rationale
is that only the presence of a scheduled offence can lead to the generation of proceeds of crime and,
hence, in return, the offence of money-laundering can be committed. Thus, in a way, the starting
point for a conviction for Section 3, is the commission of a scheduled offence. The argument in
respect of the protections provided by the Constitution under Article 20(1), as per which ingredients
for an offence must exist on the day the crime is committed or detected, have also been pressed in
opposition of any retrospective or retroactive application of the Act. The said point has been reiterated
in the case of Mahipal Singh vs. Central Bureau of Investigation & Anr.6, Tech Mahindra Limited vs.
6
Mahipal Singh v. Central Bureau of Investigation & Anr., Criminal appeal no. 682 of 2014.
13 | P a g e
Joint Director, Directorate of Enforcement, Hyderabad & Ors.7, and Gadi Nagavekata Satyanarayana
vs. Deputy Director Directorate of Enforcement 8 and that of Delhi High Court in Arun Kumar Mishra
vs. Directorate of Enforcement9
13. Additionally, it is submitted that due to the expansive meaning given of sec 3 people who do not have
knowledge or have not participated, being unrelated third parties, are also being roped in to the
investigations. The presumption of their guilt has to be established and not to be proceeded based on
the presumption.
1.1 Application of Punishment of Money Laundering -
The penalizing provision under the act is defined in Sec 410 which states that –
Whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment
for a term which shall not be less than three years but which may extend to seven years and shall
also be liable to fine. Provided that where the proceeds of crime involved in money-laundering relate
to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section
shall have effect as if for the words “which may extend to seven years”, the words “which may extend
to ten years” had been substituted.
1. Petitioners submit that the above sections demonstrate a straight jacket punishment for the offender
who has been charged under Sec 3 of the said act. It is to be considered that sec 3 is levelled against
the people who have been a part of money laundering as well as those persons who have been roped
into the said allegations and not directly involved with the proceeds of crime. Further, the scheduled
offence may have been committed by someone else, and the offence of money laundering by a third
person owing to being involved in the process or activity connected with the proceeds of crime.
2. Moreover, the petitioners submit that the section states that the offence would be punishable with
rigorous imprisonment for a term that shall not be less than three years but which may extend to seven
years. The said punishment is in relation to the offence of the money laundering under section 3 and
not under the scheduled offence. The gravity of the punishment is not in relation to the offence
committed keeping in mind the wide and expansive definition. The person who is indirectly involved
will be facing punishment greater in magnitude than the offence being committed. The said fact was
not dealt with by the court in the case of Vijay Madanlal Choudhary 11 and was kept to be interpreted
in the way it is now leading to an unreasonable degree of punishment devoid of any reasonable
7
Tech Mahindra Limited v. Joint Director, Directorate of Enforcement, Hyderabad & Ors., SLP No.34143 of 2017
8
Gadi Nagavekata Satyanarayana v. Deputy Director Directorate of Enforcement, Special Leave Petition No. 5477 of 2018
9
Arun Kumar Mishra v. Directorate of Enforcement CRL. M.C. 5508/2014
10
11
Supra.
14 | P a g e
classification.
1.2 Constitutionality of Special Court’s power and Jurisdiction -
1. It is humbly submitted before this Hon’ble court that the offence committed u/s 3 punishable u/s 4 has
intricate relevance to the power and jurisdiction of the special court which is considered to be the sole
authority to hear the matters related to the offence defined in the above-mentioned sections.
Sec. 44 12 of the Act states that –
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),— 1 [(a) an
offence punishable under section 4 and any scheduled offence connected to the offence under that
section shall be triable by the Special Court constituted for the area in which the offence has been
committed: Provided that the Special Court, trying a scheduled offence before the commencement of
this Act, shall continue to try such scheduled offence; or];
(b) a Special Court may, 2 *** upon a complaint made by an authority authorised in this behalf under
this Act take 3 [cognizance of offence under section 3, without the accused being committed to it for
trial]; 4 [Provided that after conclusion of investigation, if no offence of money-laundering is made
out requiring filing of such complaint, the said authority shall submit a closure report before the
Special Court; or
(c) if the court which has taken cognizance of the scheduled offence is other than the Special Court
which has taken cognizance of the complaint of the offence of money-laundering under sub-clause (b),
it shall, on an application by the authority authorised to file a complaint under this Act, commit the
case relating to the scheduled offence to the Special Court and the Special Court shall, on receipt of
such case proceed to deal with it from the stage at which it is committed.
(d) a Special Court while trying the scheduled offence or the offence of money laundering shall hold a
trial in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) as it
applies to a trial before a Court of Session.] [Explanation.—For the removal of doubts, it is clarified
that— (i) the jurisdiction of the Special Court while dealing with the offence under this Act, during
investigation, inquiry or trial under this Act, shall not be dependent upon any orders passed in respect
of the scheduled offence, and the trial of both sets of offences by the same court shall not be construed
as joint trial; (ii) the complaint shall be deemed to include any subsequent complaint in respect of
further investigation that may be conducted to bring any further evidence, oral or documentary, against
any accused person involved in respect of the offence, for which complaint has already been filed,
whether named in the original complaint or not.]
12
15 | P a g e
(2) Nothing contained in this section shall be deemed to affect the special powers of the High Court
regarding bail under section 439 of the Code of Criminal Procedure, 1973 (2 of 1974), and the High
Court may exercise such powers including the power under clause (b) of sub-section (1) of that section
as if the reference to “Magistrate” in that section includes also a reference to a “Special Court”
designated under section 43.
2. The applicability of sec 44 and sec 45 of the Act becomes relevant when dealing with the
constitutionality of the present section. When the constitutionality of the said amended section is
considered, it is noticed that before the amendment came into action it was a common practice that the
complaint related to the act or an offence committed defined under the said act would be reported either
by the police officer authorized under the provision of Criminal procedure code or through the
complaint being made by the authority under the PMLA. But the amended section gives power of
registering a complaint with the authority exclusively to the officer designated under the PMLA. The
prime issue under the section is the non-applicability of the CRPC provisions and the sole jurisdiction
of the officer under the said act. Originally enacted in Section 44(1)(b), both the conditions i.e., ‘filing
of a police report’, as well as, a complaint made by an authority were covered. Learned counsel also
reminisces of the speech of the then Finance Minister on the Prevention of Money-Laundering
(Amendment) Bill, 200534 in the Lok Sabha dated 06.05.2005.
3. Petitioners submit that the amendment of Section 44(1)(b) of the PMLA removed the words, “upon
perusal of police report of the facts which constitute an offence under this Act or”. And an amendment
was made to insert Section 45(1A) 13 and Section 73(2) (ua)14, by which the right of police officers to
investigate the offence under Section 3 was restricted unless authorized by the Central Government by
way of a general or special authorization. Moreover, an amendment was made for the deletion of
Section 45(1)(a) of the PMLA, making the offence of money laundering under the PMLA a non-
cognizable offence. Further, it is submitted that an amendment to Section 44(1)(b) has been made as a
consequence of making the offence under the PMLA non-cognizable.
4. If an investigation is done by a police officer or another, it is restricted to him filing a complaint and
not a police report. Therefore, the above-mentioned test is irrelevant and inapplicable. The absurdity
that arises is due to two investigations being conducted, one by a police officer and the other by the
authorities specified under Section 48. An additional point has been raised that the difference between
a complaint under the PMLA and a chargesheet under the C.r.P.C. is only a nomenclature norm and
they are essentially the same thing. Thus, basing the determination of whether one is a police officer or
not, on the nomenclature, is not proper.
13
Prevention of Money-Laundering Act, 2002, § 45, cl. 1, sub cl. A, No. 112, Acts of Parliament, 2002 (India)
14
Prevention of Money-Laundering Act, 2002, § 73, cl. 2, sub cl. ua, No. 112, Acts of Parliament, 2002 (India)
16 | P a g e
5. When the issue of the jurisdiction is to be dealt with, the exclusive jurisdiction of the special court
constituted to try scheduled offence i.e., predicate offence, as well as the offence of money laundering,
is not reasonable. The interpretation of the words ‘commit’ and ‘committed’ is said to be misconceived
under Section 44(1)(c). It is urged that the use of the word ‘committal’ is inappropriate and the real
intention of the present Section is a mere transfer of the case to the PMLA Special Court. As such, it is
submitted that the case is sent to the Special Court which has already taken cognizance of the complaint
under the PMLA and not any other Special Court. Reliance has been placed on the decision of the Delhi
High Court in Directorate of Enforcement vs. Surajpal & Ors15. and on the other hand, the decision of
the High Court of Kerala in Inspector of Police, CBI vs. Assistant Directorate, Directorate of
Enforcement (PMLA) & Anr. 16, wherein it is observed that it is not mandatory to make an application
for committal to Special Court in every case and, similarly, not mandatory for the Court to allow every
such application without application of mind and dehors the merits of the case. Hence, the conflict of
view between the two High Courts needs to be resolved.
6. The petitioners submit that when the above-mentioned section is r/w Section 3 and Sec 2 1 (u) of the
said act, it is interpermeated to mean that the special has jurisdiction to try both the offences leading to
the person being guilty in the PMLA offence because the said person was found to be guilty in predicate
offence. It is common practice to link the predicate offence with the PMLA offence and the
presumption of guilty adds to the person being involved in the proceeds of the crime. The exclusive
jurisdiction handed over to the special court is purely arbitrary and unreasonable.
7. Furthermore, basing the premise on the issue of the constitutionality of section 44, it is submitted that
basic Fundamental rights get infringed when sweeping interrogations take place leading to justify the
summons issued. The right to a fair trial is side-lined due to the predominance of the jurisdiction of the
special court in terms of predicate offence which has been rightly pointed out in the case of Nahar Singh
Yadav & Anr. vs. Union of India & Ors.17. When a judge receives evidence under Section 50 of the
PMLA in a case of money-laundering, he cannot remain an independent authority when deciding the
predicate offence based on the material placed before him, the presumption of guilt cannot be ignored.
The investigation of ED is directed to affirm the conviction of their presumption while trying the person
and the same is bound to influence the judge and the presumption of innocence on the part of the person
being tried for the said offences. With respect to the appeal before the appellate court, the right of appeal
from the predicate offences triable by the Magistrate's Court is hampered. 18
15
Directorate of Enforcement v. Surajpal & Ors 2018 SCC Online Del 10472
16
Inspector of Police, CBI v. Assistant Directorate, Directorate of Enforcement (PMLA) & Anr , Crl.MP.No.3709 of 2019
17
Nahar Singh Yadav & Anr. v. Union of India & Ors, Special leave petition (c) no. 12981 of 2008
18
Himanshu Singh Sabharwal v. State of Madhya Pradesh & Ors., (2008) 3 SCC 602
17 | P a g e
1.3 Applicability of Section 45 and its Constitutionality –
1. Petitioners state that the above-mentioned sections are in relation to the bail under the said offence. The
offences under the said act have been characterized as non-cognizable and non-bailable. As earlier
discussed, the offences under the said act were made non-cognizable to avoid the interference of the
police officers, and the jurisdiction of the ED officers to investigate the matter is held to be the only
authority to scrutinize the issue.
2. The twin conditions which are laid down under section 45 along with the normal provisions of bail to
be fulfilled while giving bail. The twin conditions are that there should be reasonable grounds for
believing that he is not guilty of such offence; and that he is not likely to commit any offence while on
bail. The said section was declared unconstitutional in the case of Nikesh Tarachand Shah 19 wherein
the twin conditions and the unreasonable restriction in terms of punishment were declared arbitrary.
Subsequent amendments in the finance act 2019 and in 2018 made amendments to Section 45.
3. It is submitted that the subsequent amendment cannot revive Section 45, which was struck down as
unconstitutional by the decision in Nikesh Tarachand Shah. The same could have not been revived by
the 2018 and 2019 amendments. A provision or a statute held to be unconstitutional must be considered
stillborn and void, and it cannot be brought back to life by a subsequent amendment that seeks to
remove the constitutional objection. It must be imperatively re-enacted20.The amendment has not led
to the provision of the twin test not being applied. The said provision is still considered to grant or
reject bail under the present act. Under the PMLA, there is no visible sign of these protections against
the police's power of search and arrest; it is in stark contrast with the constitutional protections given
also the Gudikanti Narasimhulu & Ors. vs. Public Prosecutor, High Court of Andhra Pradesh 21, reverse
presumption against innocence at the stage of bail under Section 45 of the PMLA. Further, the
destruction of the presumption of innocence under Sections 22, 23, and 45 cannot even meet the test at
the pre-complaint and pre-cognizance stage53 and the accused cannot escape the rigours of custody as
per Section 167 of the C.r.P.C.
4. Thus, Section 45(2) of the PMLA is contrary to the general principles of bail and the Constitution of
India. It is also pointed out that Section 437 of the C.r.P.C. imposing similar conditions as Section 45(2)
restricts it to offences punishable with either life imprisonment or death. of the judgment as appearing
on the Court website. Under no condition can it be said that the bail conditions under the PMLA,
imposing a maximum of seven years, are reasonable. Without prejudice to the aforementioned
argument, it was stated that Section 45(2) could only be applicable to bail applications before the
19
Supra
20
Deep Chand v. The State of Uttar Pradesh & Ors., 1959 AIR 648
21
Gudikanti Narasimhulu & Ors. v. Public Prosecutor, High Court of Andhra Pradesh, (1978) 1 SCC 240
18 | P a g e
Special Court and the special powers under Section 439 C.r.P.C. It was submitted that in light of the
same, special powers be given to the Special Court under the PMLA, as these provisions, draconian in
nature, were contemplated only in Acts, such as TADA Act, POTA, MCOCA & NDPS Act, since
securing the presence was difficult in all of the above. Further, unless Section 3 was to be restricted to
organized crime syndicates, which was the real intent, the bail provisions are liable to be struck down.
5. It is submitted that the said provision is arbitrary and unreasonable to the very objective of the act. The
sections stated hereinabove are inconsistent with the provisions stated in the Criminal procedure code.
The scheduled offences should have been dealt with according to the procedures laid down in the
Criminal procedure code. Thus, it is submitted that the said section which is inconsistent `with the
provisions of the code, be declared unconstitutional.
ISSUE 2: WHETHER THE PROCEDURE FOLLOWED BY ED UNDER THE PMLA

VIOLATES THE FUNDAMENTAL RIGHTS OF THE PETITIONER?
The Counsel for the Petitioners state that since the inception of the Act, there have been many issues
raised in concern to the very act. The sections in the act have inconsistencies that are not in resonance
with the Fundamental Rights of the constitution.
2.1 Investigation Procedure
1. Petitioners submit that the said process of investigation under the act is completely arbitrary and
opaque. Such provisions are violating the Fundamental rights of the accused under Articles 14, 19, and
21. It is humbly submitted before this Hon’ble court that the ED can based on an ECIR report i.e. The
Enforcement Case Information Report can arrest an individual without making him available the
contents of the report. There have been cases wherein the ED has cited the reason that the ECIR is an
internal document. It is the right stipulated under the Criminal procedure code that the procedure needs
to be abided by wherein the person is to be given a First Information report at the beginning of the case
to comprehend the charges levelled against him which is an important part of article 21. 22
2. Additionally, it is rightly observed that the list of documents seized and materials confiscated during the
investigation needs to be recorded and the same records need to be provided to the person who is levelled
of all the charges to initiate the process of openness and transparency.
3. It was also submitted that under the C.r.P.C., every FIR registered by an officer under Section 154
thereof is to be forwarded to the jurisdictional Magistrate. However, this procedure is not being followed
in ECIR cases. Further, violation of Section 157 of the CrPC has been observed. It was vehemently
argued that in some cases the ECIR is voluntarily provided, while in others it is not, which is completely
22
Youth Bar Association of India v. Union of India & Anr. Writ petition (Crl.) No.68 of 201
19 | P a g e
arbitrary and discriminatory. In re, vs. State of Andhra Pradesh & Ors.,23 & Nitya Dharmananda & Anr.
vs. Gopal Sheelum Reddy & Anr.,24 ,the said was reiterated.
4. A helpless situation is created for the accused where the allegation in the ECIR is based upon which the
ED can summon the accused person and seek details regarding the financial transaction. The accused is
summoned under Section 50 of the PMLA to make such statements which are treated as admissible in
evidence. There is a possibility of the accused being unaware of the charges and allegations against him.
CrPC has broadly elaborated upon the part of the summoning of the accused under Sec 41 A. Moreover,
the witnesses have been summoned under the provision of Section 160. The very differentiation is absent
under the PMLA. Further, Chapter XII of the C.r.P.C. is not being followed by the ED and, as such,
there are no governing principles of investigation, no legal criteria, and guiding principles that are
required to be followed. As such, the initiation of investigation by the ED, which can curtail the liberty
of the individual, would suffer from the vice of Article 14 of the Constitution of India 25.
5. The Petitioners submit that the aspect of the heinousness of the offence categorized under the PMLA as
a predicate offence is given a wide interpretation which is in strict contrast to what the Statements of
Objects and Reasons of the 1999 Bill state wherein it has been stated that the Act was brought in to curb
the laundering stemming from trade in narcotics and drug-related crimes. Reference is also made to 31
various conventions that are part of the jurisprudence behind the PMLA 26. The object of the convention
and the act brought into action to curb such offences is losing its very objective which was sought to be
achieved. It was to be seen in the light of organized crime, unlike its application today to less heinous
crimes such as theft. It is submitted that there was no intention or purpose to cover offences under the
PMLA so widely. It is also submitted that there are certain offences which are less severe and heinous
than money-laundering itself and that the inclusion of such offences in the Schedule does not have a
rational nexus with the objects and reasons of the PMLA and the same is unreasonable, arbitrary and
violative of Articles 14 and 21 of the Constitution of India.
2.2 Procedure in contradiction to Criminal Procedure Code -
1. The petitioners submit that the main issue in regard to the act is that the procedure laid down in the act
is not in consonance with the provision under the CrPC. Since it is a procedure established by law and
there cannot be an investigation outside the purview of Section 154 or 155 of the C.r.P.C. It is submitted
that the Act under Section 65, provides for the applicability of the Cr.P.C.22 Ashok Munilal Jain & Anr.
23
Re v. State of Andhra Pradesh & Ors.,23 (2021) 10 SCC 598
24
Nitya Dharmananda & Anr. v. Gopal Sheelum Reddy & Anr. (2018) 2 SCC 93
25
E.P. Royappa v. State of Tamil Nadu & Anr., (1974) 4 SCC 3
26
United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988.
20 | P a g e
vs. Assistant Director, Directorate of Enforcement 27.
2. The restricted access to the ECIR, violation of Section 161, Section 41A, and lack of magisterial
permission under Section 155 of the Cr. P.C have categorized the act as arbitrary and the provisions
stipulated under the said act neglect the aspect of safeguarding the Fundamental right of the accused
leading to the violation of Articles 14 and 21 of the Constitution.
3. In reference to the case of State of Bombay vs. Kathi Kalu Oghad28, it is submitted that the term can be
given a wide connotation and an inclusion in the FIR, ECIR, chargesheet or complaint is not necessary
and can be availed even by suspects at the time of interrogation. Petitioners submit that the mental state
of the accused while committing the crime is to be considered instead of taking into consideration the
physical state. Nevertheless, a broad interpretation must be given to the circumstances in which a person
can be so compelled for recording of statement. Additionally, the term ‘to be a witness’ would take
within its fold ‘to appear as a witness’ and it is said that it must encompass protection even outside Court
in investigations conducted by authorities such as the ED. It is also argued that this protection should
extend beyond statements that are confessions, such as incriminating statements which would furnish a
link in the chain of evidence against the person. The situation wherein the incriminating statements
leading to the witness being framed in the case would hamper the justice-providing system and the
investigation process.29
4. It is submitted that the test which this Court ought to consider for determination of the vires of Section
50 of the PMLA is: whether a police officer is in a position to compel a person to render a confession
giving an incriminating statement against himself under threat of legal sanction and arrest? It is further
submitted that the ED continuing the investigation when the person is in custody and restricting the
production of ECIR to the accused in custody restricts the opportunity to the Individual in custody. In
some circumstances, a person is not even informed of the capacity in which he/she is being summoned.
Things get worse when ED rejects the application of Chapter XII of the Cr.P.C. All the above-mentioned
circumstances are said to render the questioning by the ED, which might not be restricted to the offence
of money laundering alone, as a testimonial compulsion48. Hence, advocating the protection of Article
20(3) of the Constitution, it is submitted that all safeguards and protections are rendered illusionary.
5. Furthermore, the Petitioners state that the search and seizure under the act have no rational basis wherein
the search and seizure are to be reported to the Adjudicating Authority Further, the PMLA has two sets
of processes for attachment and confiscation which is subject to final determination. There is no
authority to examine and the absence of appeal provisions has given unfettered powers to the ED to
27
Ashok Munilal Jain & Anr. v. Assistant Director, Directorate of Enforcement, (2018) 16 SCC 158
28
State of Bombay v. Kathi Kalu Oghad, 1961 AIR 1808
29
M.P. Sharma & Ors. v. Satish Chandra, District Magistrate, Delhi & Ors., (1954) SCR 1077
21 | P a g e
investigate the matter. Absence of safeguards and supply of ECIR, a fair investigation is contrary to the
Constitution and the C.r.P.C. Further, it is submitted that personal liberty under Article 21 cannot be
curtailed as the ED manuals, circulars and guidelines are administrative directions and cannot be
regarded as law under Article 13 of the Constitution. Such restrictions on personal liberty based on
administrative directions are neither reasonable restrictions nor law under Articles 13 and 19(2) of the
Constitution.30
6. Section 24 of the PMLA talks about the burden of proof while proving a particular fact or part of the
investigation. The cardinal principle of the law state that the Burden of proof lies on the prosecution but
there is some exceptions in the form of statutes wherein this rule has been reversed. Furthermore Section
24(b) refers to persons not charged with the offence of money-laundering under Section 3 contending
that Section 24(a) and (b) have no application to proceedings for bail. Additionally, it is stated that
presumption of innocence is a golden thread running through all criminal proceedings. This can apply
only in cases of extremely serious offences on the ground of compelling State interest. It is submitted
that in such a case where the maximum sentence is of seven years, the above objective of the law is ultra
vires to the very core of the constitutional principles leading to the violation of Article 21 of the
Constitution.
7. While dealing with the constitutionality of Section 50 of the PMLA, our attention is drawn to Section
50(2) which pertains to the recording of the statement of a person summoned during an investigation.
In that, Section 50(3) posits that such a person needs to state the truth. Further, he has to sign such a
statement and suffer the consequences for an incorrect version under Section 63(2)(b); and the threat of
penalty under Section 63(2) or arrest under Section 19. It is urged that in comparison to the constitutional
law, the C.r.P.C., and the 1872 Act, the provisions under the PMLA are draconian and, thus, violative
of Articles 20(3) and 21 of the Constitution. Our attention is drawn to Section 160 of the C.r.P.C. when
the person is summoned as a witness or under Section 41A as an accused or a suspect. In either case,
the statement is recorded as per Section 161 of the C.r.P.C. Safeguards have been inserted by this Court
in Nandini Satpathy vs. P.L. Dani & Anr.3135, while also the protection under Section 161(2) is relied
on. Thus, based on Sections 161 and 162, it is submitted that such evidence is inadmissible in the trial
of an offence unless it is used only for the purpose of contradiction as stipulated in Section 145 of the
1872 Act. Additionally, it has also been stated that” Further, it is stated that proof of contradiction is
materially different from and does not amount to the proof of the matter asserted36 and can only be used
to cast doubt or discredit the testimony of the witness who is testifying before Court” 32
30
Sakiri Vasu v. State of Uttar Pradesh & Ors., (2008) 2 SCC 409
31
Nandini Satpathy v. P.L. Dani & Anr (1978) 2 SCC 424
32
Somasundaram alias Somu v. State represented by the Deputy Commissioner of Police, (2020) 7 SCC 722
22 | P a g e
8. After having dealt with the ECIR and the burden of proof, the section which is in stark contrast to the
constitutional principles is the provision of bail in the said act. The offence in the said act being non-
bailable and non-cognizable, has led to the offenders as well as the innocent individuals who were
involved in the proceeds of crime, being linked to the investigation. The procedure violating the 1973
procedure has caused anomalies that hamper the fair investigation. Moreover, the presumption of
innocence is absent in the said act. the reverse burden of proof lays down the ground for the court to
presume that the offender must have been involved in the said offence. It would be right to point out
that the scheduled offence as well as the PMLA offence, both being dealt with by the special court,
biasness towards the presumption of the accused being guilty cannot be avoided.
9. The current procedure envisaged under the PMLA is violative of Article 21 of the Constitution of India.
The procedure established by law has to be in the form of a statute or delegated legislation and pass the
muster of constitutional protections. The C.r.P.C. has several safeguards in respect of arrested
investigation; they are also rooted in the C.r.P.C. of 1898. They are reflective of constitutional
protections. The manual, circulars, and guidelines of the ED are executive and as such, cannot be used
for the curtailment of individual liberty. Under the PMLA, there is no visible sign of these protections
against the police's power of search and arrest; it is in stark contrast with the constitutional protections.
10. Thus, it is humbly submitted before this Hon’ble court that the above said provision dealt with is
unconstitutional and fails to resonate with the constitutional principles and the procedure established by
law.
ISSUE 3: WHETHER BAIL SHOULD BE GRANTED TO MR DADA DEV KUMAR

IN THE PRESENT CASE?
1. The counsel for the Petitioner humbly submits that Mr Dada Dev Kumar has been wrongfully arrested
by ED and falsely implicated with the attachment of properties, which indicates foul play done to
achieve political vendetta. Hence it is humbly pleaded that bail should be granted to Mr Dada Dev
Kumar in the present case.
2. The Petitioner in the present case is a philanthropist and has done a lot of social work, for the
betterment of the society in the city of Bombaim because of this people loved and respected him. His
affection towards the needy made him open an NPO (Non-Profit Organization) namely ‘Dada Jan
Seva mission’ to help the poor and needy people of the city. In order to be able to serve a bigger mass
of the population Dada decided to start his own political party based upon socialist principles.
Therefore, he appointed people to handle the working of his ‘NPO’ as his election campaigns had
begun. During his campaign there where upheaval among a few groups critiquing the petitioner which
caused disharmony although it was stated that it was due to the vendetta of the opposition parties. The
23 | P a g e
petitioner Appointed Mr Rakesh as the executive director of the NPO making himself a non-executive
director. Which clearly shows his action to release himself from the workings of the NPO. Further,
when Mr Rakesh appointed Mr Anupam to his working committee of 4 members there wasn’t any
involvement of the Petitioner in the appointment. All the transactions made by Rakesh and Anupam
were not known to the Petitioner. The transactions made by a foreign NGO to Anupam’s personal
account were Rs. 80 Lacs, out of which 50 lacs were deposited in the account of NPO and the
remaining Rs. 30 Lacs were distributed in 10 different bank accounts.
3. Section 45 of the PMLA Act states that all the offences under this act are cognizable and non-bailable.
In order for the accused to get bail under this act has to satisfy the Twin Condition test. This Court
declared in Nikesh Tarachand Shah vs. Union of India & Anr.33 , Section 45(1) of the 2002 Act, as it
stood then, insofar as it imposed two further conditions for release on bail, to be unconstitutional being
violative of Articles 14 and 21 of the Constitution. The two conditions which have been mentioned as
twin conditions are:
(i) that there are reasonable grounds for believing that he is not guilty of such offence; and
(ii) that he is not likely to commit any offence while on bail
4. “Innocent until proven guilty” is a cardinal principle of criminal jurisprudence. However, statutes like
PMLA conveniently reverse this presumption of innocence by the force of legislature and binds the
judiciary to assume the guilt of an accused. The Apex Court in Arnab Goswami’s case 34
Criminal
Appeal No. 742 of 2020 had categorically held that the principle of presumption of innocence applies
to bail proceedings as well. On the contrary, the accused under PMLA (at the stage of bail) has the
burden to prove that he is not guilty of the offence which in most cases would be impossible to
discharge because of the very fact that the accused is not even in possession of the material that the
ED is using to incriminate him. It is noteworthy that the accused is informed only about the grounds
of arrest and he is not provided with any other document based on which the ED seeks to arrest him.
Such application of section 45 would lead to a situation that would invariably cause the denial of bail
and would thereby bring about grave injustice to the accused.
5. In the case of Giri Raj v. State of Haryana 35 , it was stated that “Bail is not to be seen as a
punishment. The primary goal of bail is to ensure the person’s attendance at trial while also granting
him the liberty to be free. A presumably innocent person must have his freedom to enable him to
establish innocence”.
33
Supra
34
Arnab Goswami v. The State of Maharashtra, Criminal Appeal No. 742 of 2020
35
Giri Raj v. State of Haryana, CRM-M No.19535 of 2018
24 | P a g e
6. Section 45(1) 36 of the PMLA provides for a presumption of guilt and an inverted burden of proof at
the stage of bail. The error apparent herein is that it would be impossible for any accused to prove at
the stage of bail that he is innocent of the charges levelled against him. It is also noteworthy that the
accused is also not entitled to the Enforcement Case Information Report (hereinafter referred to as
ECIR; ECIR is equivalent to FIR) on the ground that it is an internal document of the ED. The Apex
Court while upholding the validity of the provision failed to appreciate the predicament that the
accused is faced with when he is called upon to prove his innocence at the stage of bail especially
when he is not provided with any material till the stage of framing of charges.
7. Hypothetically speaking even if the accused is handed over all the documents that the ED is relying
upon, even then the accused will not be able to prove his innocence at the stage of bail because the
accused is not entitled to produce any material or document in his defence. It goes without saying that
the material relied upon by the ED would only include incriminating material and not exculpatory
material. Furthermore, if the material relied upon by the ED includes any kind of witness statements
recorded under section 50 of the PMLA, it wouldn’t be possible for the accused to rebut the same at
the stage of bail because that is only possible at the stage of cross-examination. Therefore, it can rightly
be argued that the accused is prevented from preparing a credible defence for himself.
8. In the case of Sanjay Chandra v. Central Bureau of Investigation 37 , the court talks about “To
have a fair trial, the impact of the offence and the loss caused by the commission of the act cannot be
a primary or guiding factor in the grant of bail. A trial may take a long time and most offenders are
detained for an indefinite period before trial commences. This itself is an infringement of their personal
liberty. Therefore, the gravity of offence and seriousness of charge should not deter courts from
enlarging the offender on bail.”
9. In the present case, the Petitioner has no prior antecedents which would create a bar or give the benefit
of the doubt that the offence would be repeated again if he is out on bail. While giving bail it is a
common observation that the prior antecedents and the activities committed by the petitioner play a
vital role in deciding the reasonability of the detention. In the present case, the presumption of the
petitioner committing a crime cannot be deduced from the prior happenings. It would be of no
significance to keep the accused behind the bar without any reasonable explanation. Therefore, the
second condition of bail in the twin test of committing the crime again is negligible.
10. For economic offences, a triple/ tripod test has been introduced by the supreme court which has three
conditions on which it could be determined whether the accused can be granted or denied bail in the
36
Prevention of Money-Laundering Act, 2002, § 45, cl. 1, sub cl. A, No. 112, Acts of Parliament, 2002 (India)
37
Sanjay Chandra v. Central Bureau of Investigation, Sanjay Chandra v. CBI, Criminal Appeal
No.2178 OF 2011
25 | P a g e
present case the lower courts did not administer the triple test formula as laid down by this Hon’ble
Court and thus the accused is still imprisoned for a long period of time. The triple test was mentioned
38
in the case of P. Chidambaram v. Directorate of Enforcement where the court stated that the
apex court introduced the concept of the Triple test or the Tripod test. The triple test states that the
alleged offender seeking bail should not.
• Be likely to abscond or be a flight risk.
• Tamper with the witnesses.
• Destroy evidence.
The court also said further that even if the allegation is one of grave economic offence, it is not a rule
that the bail should be denied in every case, since there is no bar created in the relevant enactment
passed by the Legislature, nor does the bail jurisprudence provide for so.
11. The petitioner in the form of a guarantee before this Hon’ble Court and for a smooth investigation
process would deposit his passport to nullify the chances of the petitioner involved in the case against
him to move out or abscond beyond the jurisdiction of Mindian courts. He would also indemnify
before the court to provide a surety if the petitioner is directed to grant bail. The petitioner, being a
sleeping member of the NPO has no intention to commit the crime nor has anything to hide. Therefore,
he would not attempt to tamper with the witness or destroy the evidence or perform any act which
would hamper the course of the investigation and cause hindrance in the trial.
39
12. In Ranjitsing Brahmajeetsing Sharma v State of Maharashtra it was held that presumption of
innocence is a human right. Article 21, in view of its expansive meaning, not only protects life and
liberty but also envisages a fair procedure. Liberty of a person should not ordinarily be interfered
with unless there exist cogent grounds therefore.” The petitioner is suffering from an autoimmune
disease called lupus which affects a person's vital organs, blood and skin. This is an incurable disease
which can only be managed with help of medication and treatment. Hence, it is humbly submitted
that bail should be provided to the petitioner taking into account the deteriorating condition due to
his illness.
The Counsel for the Petitioner humbly submit before this Hon’ble court that bail should be provided
to Mr. Dada Dev Kumar in the light of the arguments stated above. Taking into account his least
involvement with the functioning of the NPO, it cannot be prima facie presumed that he is guilty of
the said charges levelled against him. The petitioner not having any prior antecedents makes him
credible and eligible for bail. Also taking into account the incurable illness he is suffering from
requires constant medical attention and treatment which would be difficult if the bail is to be denied.
38
P. Chidambaram v. Directorate of Enforcement, Criminal Appeal no.1831 of 2019
39
Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, Criminal Appeal No. 523 of 2005
26 | P a g e
PRAYER
WHEREOF, in light of the facts stated, issues raised, arguments advanced and authorities cited the
Petitioners humbly pray before this hon’ble court that it may be pleased to adjudge and declare that:
i. The substantive provisions i.e. Section 3, Section 4, Section 44 and Section 45 of the PMLA,
2002 is ultra vires to the Constitution principles and should be declared unconstitutional.
ii. The procedure followed by the ED under the PMLA, 2002 violates the Fundamental rights of
petitioners and gives unfettered powers to the officials under the Act.
iii. The bail should be granted to Mr. Dada Dev Kumar in the present case.
And may pass any other Order, or Judgement as this Hon’ble court may deem fit in the interests of
Justice, Equity, Fairness and Good Conscience.
For this act of kindness, the Appellants shall be duty bound forever pray.
SD/-
Counsels on behalf of the

Petitioners
27 | P a g e

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IIT Bombay’s Mood Indigo National Moot Court Competition 2022

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IIT BOMBAY’S MOOD INGIDO NATIONAL MOOT COURT COMPETITION, 2022

THE HON’BLE SUPREME COURT OF MINDIA

BOMBAIM’S CIVIL LIBERTY UNION

UNION OF MINDIA …. RESPONDENT

MEMORANDUM ON BEHALF OF THE PETITIONERS

COUNSEL APPEARING ON THE BEHALF OF THE PETITIONERS

MEMORIAL ON BEHALF OF PETITIONERS 2|Page

MEMORIAL ON BEHALF OF PETITIONERS 3|Page

• Nikesh Tarachand Shah v. Union of India & Anr., (2018) 11 SCC 1

• The Code of Criminal Procedure, Ratanlal & Dhirajlal, 22nd Edition

❖ TREATIES & CONVENTIONS

• United Nations Convention Against Transnational Organized Crime

MEMORIAL ON BEHALF OF PETITIONERS 5|Page

MEMORIAL ON BEHALF OF PETITIONERS 6|Page

MEMORIAL ON BEHALF OF PETITIONERS 7|Page

1. WHETHER THE SUBSTANTIVE PROVISIONS I.E. SECTION 3, SECTION 4,

2. WHETHER THE PROCEDURE FOLLOWED BY ED UNDER THE PMLA

3. WHETHER BAIL SHOULD BE GRANTED TO MR DADA DEV KUMAR IN THE

1. WHETHER THE SUBSTANTIVE PROVISIONS I.E. SECTION 3, SECTION 4,

2. WHETHER THE PROCEDURE FOLLOWED BY ED UNDER THE PMLA VIOLATES

3. WHETHER BAIL SHOULD BE GRANTED TO MR DADA DEV KUMAR IN THE

ISSUE 1: WHETHER THE SUBSTANTIVE PROVISIONS I.E. SECTION 3, SECTION 4,

Section 31 of the PMLA, 2002 defines money laundering –

2. Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or

(e) projecting as untainted property; or

(f) claiming as untainted property, in any manner whatsoever;

PMLA defines proceeds of crime under sec 2 (u) 2

1.1 Application of Punishment of Money Laundering -

1.2 Constitutionality of Special Court’s power and Jurisdiction -

Sec. 44 12 of the Act states that –

1.3 Applicability of Section 45 and its Constitutionality –

ISSUE 2: WHETHER THE PROCEDURE FOLLOWED BY ED UNDER THE PMLA

2.2 Procedure in contradiction to Criminal Procedure Code -

vs. Assistant Director, Directorate of Enforcement 27.

ISSUE 3: WHETHER BAIL SHOULD BE GRANTED TO MR DADA DEV KUMAR

(ii) that he is not likely to commit any offence while on bail

Counsels on behalf of the

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