The first challenge to the Supreme Court judgment upholding the provisions of search, seizure and arrest under the Prevention of Money Laundering Act (PMLA) 2002 was filed on Monday in the Supreme Court by parliamentarian Karti Chidambaram, an accused in the INX Media case.

The review petition, filed by Chidambaram’s lawyer Shally Bhasin, was mentioned by advocate Arshdeep Singh on Monday before a bench headed by Chief Justice of India NV Ramana. The top court assured him of an urgent listing.

Although review petitions are not heard in open court, Chidambaram attached two separate applications seeking permission for the matter to be heard in open court and another seeking stay of the top court judgment of July 27.

Chief Justice of India Ramana, sitting along with justices Hima Kohli and CT Ravikumar, asked Singh: “Is this (petition) against justice Khanwilkar’s judgment?”, and agreed to list it, without specifying a date.

The July 27 verdict was given by a bench of justices AM Khanwilkar (who retired on August 19), Dinesh Maheshwari, and CT Ravikumar.

The review plea cited more than 40 grounds to legally challenge the July 27 judgment, arguing that the reasoning of the top court was flawed and erroneous, and was contrary to settled decisions by the Supreme Court. It also contended that the verdict violated the constitutional guarantees protected by apex court judgments in the past.

The plea questioned the court’s decision to test the validity of the PMLA provisions without deciding the moot constitutional issue whether such amendments could be introduced under the parent Act by way of a money Bill. This question is pending before a five-judge Constitution bench in the Roger Mathew v South Indian Bank case of 2020. The July 27 decision left this question unanswered while observing that if the Constitution bench’s decision is decided against the introduction of PMLA amendments, the entire set of provisions under challenge will have to go.

“Provisions of an Act of Parliament cannot be held as valid even while the constitutional validity of those provisions are pending consideration by this Court,” Chidambaram said in his plea. “On this ground alone, the impugned judgment deserves to be reviewed.”

The plea also questioned how the judgment validated each provision of the PMLA as constitutional without understanding its far-reaching consequences. For instance, it noted that in the definition of money laundering, projecting or claiming proceeds of crime as untainted property is an essential ingredient to make out a money laundering offence.

“The offence is not complete unless the proceeds of crime are ‘projected or claimed as untainted property’. The impugned judgment is in grave error in rejecting this submission and deserves to be reviewed,” the plea filed on Monday said. This amounted to rewriting law made by Parliament, it added.

It also challenged the judgment for allowing retrospective operation of the law by allowing PMLA proceedings to be initiated against a person who is charged of an offence which later in point of time gets included as predicate offence under the schedule attached to PMLA. “An act committed even 100 years ago (in respect of an offence under IPC) can be resurrected and the person concerned can be accused of ‘money-laundering’ after the PMLA was brought into force and the offence included in the Schedule… Such a result is expressly forbidden by Article 20 of the Constitution,” the petition said.

The plea also questioned the reasoning adopted by the top court in holding that Enforcement Directorate (ED) officers are not police officers and the exclusion of operation of Code of Criminal Procedure (CrPC) till the arrest of a person under PMLA.

“PMLA is admittedly a criminal law. It creates a new offence; it provides for investigation and trial of the said offence; and it provides for punishment for that offence…If the PMLA is essentially a criminal law, it follows logically that the persons investigating the commission of an offence under the law would, indubitably, be police officers,” it said.

Even on the “twin conditions” for getting bail under Section 45 PMLA being made applicable by the judgment even to anticipatory bail proceedings, the petition said that in the absence of an FIR, complaint (charge sheet), case diary (not maintained), and documents relied upon by the prosecution, it will be impossible for any accused to present facts and submissions to persuade the special court to believe that they are “not guilty of such offence”.

(With inputs from agencies)