PMLA - The Act which was enacted to curb money laundering in India is being used as a political Vedanta. Many opposition political leaders including former Home Minister P. Chidambaram, former Delhi CM Arvind Kejriwal & Jharkhand CM Hemant Soren were slapped with PMLA and incarcerated for months without trial. The reverse mechanism of bail under PMLA and the twin test mentioned under section 45 made it nearly impossible to get bail. Still, the Supreme Court clarified that conditions provided under section 45 do not impose absolute restraint on bail.

“Money laundering poses a serious threat not only to the financial systems of countries but also to their integrity and sovereignty.”

 Act (PMLA) was enacted in 2002 and became operative in 2005 to prevent money laundering and to confiscate property derived from criminal activities. Preventing money laundering is important as laundered money collected from illicit or illegitimate businesses re-enters the economy in the form of luxury items, real estate, or companies. PMLA seeks to combat money laundering with three objectives: firstly control and prevention of money laundering, secondly seize the property obtained from laundered money and thirdly deal with other issues. Enforcement Directorate (ED) which was established under the Foreign Exchange Regulation Act, 1947 (FERA) has been given the responsibility for enforcing the provision of PMLA.

Section 4 of the Act talks about punishment and says the offence of money laundering shall be punishable with rigorous imprisonment for a term not less than three years extending to seven years and shall also be liable to a fine. It was amended subsequently in 2009, 2013, and 2019. The amendments were carried out by due consideration of standing committees to unplug the loopholes and changes. Money laundering in India involves 3 stages i.e. Placement, Layering, and Integration. This act imposes obligations on financial institutions to maintain records and provide information in the prescribed form to the Financial Intelligence Unit - India ( FIU-IND ). Money Laundering is a cognizable and non-bailable offence under section 45 of the Act.

Section 45 of the Act declares the offence committed under the act as a cognizable and non-bailable offence. That means a person against whom a charge under the Act has been alleged can be arrested without a court order and bail can be granted by the court. Sec 45 also laid down 2 conditions which should be satisfied to get the bail. First, the Public Prosecutor has been given a chance to resist the application for such release and second, there are

 for believing that he is not guilty of such an offence that he is not likely to commit any offence while on 

. PMLA has a reverse burden of proof mechanism. That means the prosecution need not prove guilt beyond a reasonable doubt as it happens in criminal cases mentioned under 

Because of this, it was assumed and believed that it is nearly impossible to get bail in a PMLA case. It is considered that Bail is the rule and jail is the exception. The 

 in many cases said the bail rule is nothing but a paraphrase of Article 21. The Apex Court in Vijay Madanlal Choudhary & Ors. vs. Union of India & Ors. , held that Sec 45 of the PMLA restricts the rights of the accused to 

bail, it could not be said that the conditions provided under Section 45 impose absolute restraint.

Before the Vijay Madanlal Case, the Supreme Court laid down the Triple Test Rule which is also a guideline for granting or refusing grant or regular bail under PMLA in the case P. Chidambaram v. ED.

In dealing with bail applications under PMLA, the Triple Test Rule is also required to be followed as under:

:- • In doing so the courts are guided by the conduct of the accused. If the accused has made himself present at all times whenever required in the past and is collaborating with the investigation, the courts take this factor in support of the accused while granting bail.

:- • If the case is mainly based on documents and all the documents were already in the custody of the investigating agency, the scope of altering becomes impossible and the accused be released on bail, also keeping in mind that since the accused had not tampered the documents at any point of time in past, the courts take this factor in favour of the accused while granting bail.

:- • The court takes judicial notice of the fact that the accused has deep roots in society, has been staying at his permanent address for a long, has all properties and family within the local limits, and is not earlier involved in any criminal matter.

In most of the PMLA cases, the accused are incarcerated for months and months without any hope of completion of trial in the near future. Lakhs of pages of documents are filed in PMLA matters. Therefore, it is not possible to conclude the trial soon after the arrest was done. On one hand, Sec 45 of the PMLA Act says bail may be granted but only when the twin mentioned in the act is satisfied. On the other hand, Article 21 of the Constitution of India states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The procedure to curtail rights mentioned under Article 21 should be reasonable. 

Keeping the accused behind bars should not be permitted to become the punishment without trial. Supreme Court in Arnab Manoranjan Goswami v. State of Maharashtra and Others held that deprivation of liberty even for a single day is one day too many. Later, the apex court in Prem Prakash vs Enforcement Directorate, held Section 45 of PMLA by imposing 

 does not re-write the principle to mean that deprivation is the norm and liberty is the exception.

In the case of Manish Sisodia (I) vs. CBI(2023), The Supreme Court held that detention or jail before being pronounced guilty of an offence under the PMLA Act should not become punishment without trial. In the case of Arvind Kejriwal vs. Directorate of Enforcement, 2024, The Supreme Court held that the PMLA Act does not stipulate any stage for bail application. Under section 45 of PMLA, it can be held at any stage of the proceeding either before the complaint or after that.

In the case of Prem Prakash vs Enforcement Directorate), the Apex court held that the Authorities under the Act cannot prosecute any person on a notional basis or on the assumption that a planned offence has been committed unless it is so registered with the jurisdictional police and/or pending enquiry/trial including by way of criminal complaint before the competent forum.

In Prabir Purkayastha v. State (NCT of Delhi) 2024, The Supreme Court held that Section 19 of PMLA provides that the ED must inform the accused of the grounds of his arrest when the ED has a reason to believe that person has been guilty of an offence punishable under this Act. In the case of 

, The Supreme Court held that ED does not have the power to arrest the accused without giving reason in writing. It put an end to the practice of orally providing grounds for arrest to the accused.

In a nutshell, we can analyse that section 45 of PMLA and 

 of the Indian Constitution are contradicting each other. Under Article 21 it is our right to have personal liberty which has been curtailed by section 45. Earlier, it was believed that it is really impossible to get bail under PMLA but gradually the jurisprudence of the concept of bail evolved under PMLA as well. The apex court has recognised that the freedom guaranteed under Article 21 cannot be taken away just by enacting a statute.

Disclaimer: The opinions expressed in this publication are those of the author. They do not purport to reflect the opinions or views of The Jamia Review or its members.

Decoding Bail under PMLA: A Tug-of-War between Rights and Regulation

Maktaba Jamia Limited - the university press of Jamia Millia Islamia, founded in 1922 is taking its last breath. Once it used to have more than 5 outlets in different parts of the country and published more than 6,000 books, but is now fighting for its survival. During the tenure of the Vice Chancellor Najeeb Jung and Prof. Talat Ahmad, all the departments were ordered to purchase stationery and printing materials only from the Maktaba. The university spends lakhs of rupees every year to print the books of Jamia distance courses. At the same time, the university's own printing press is dying.

 is taking its last breaths. The Maktaba was founded by

, one of the founders and former Vice-Chancellor of 

 New Delhi in 1922. The idea to establish the Maktaba came when the then Chancellor of Jamia, 

spoke about the importance of mother tongue during his speech on the first convocation of Jamia. Later, Jamia adopted 

as its medium of study as its founders strongly advocated for education, in the university, to be free from British influence and only to be in an Indian language. It was decided that Urdu would be the medium of study in Jamia, but implementing it was a challenging task. There were very few textbooks, literature or other books available in Urdu. To meet this demand, Jamiaestablished its own university press, like the 

published more than 6,000 books which includes both– original and translated works. It has published several works by notable figures such as 

 Dr. Zakir Hussain, Jawahar Lal Nehru, Maulana Abul Kalam Azad, Abid Hussain, Mujeeb Ahmed 

as well. Jamia Maktaba has translated and published 13 books of Rabindranath Tagore between 2013 and 2015 which were not limited to 

 and were sold to students and scholars. The famous novel of Munshi Premchand, 

was also published in Urdu for the first time by Jamia Maktaba and it holds the copyright of 

 At its zenith, Jamia Maktaba had its branches in Delhi, Mumbai, Aligarh, Hyderabad and Lahore (before partition).

During the bloodshed of partition, the Maktaba was set on fire when it was in Karol Bagh. Then it shifted to its present location in Okhla, New Delhi. 

. is registered as a limited company and Jamia Millia Islamia holds 92% of the total share. During the tenure of the Vice Chancellor Najeeb Jung, all the departments were ordered to purchase stationery and printing materials only from Maktaba. The same was continued during VC Prof. Talat Ahmed’s tenure. Because of this, Maktaba was able to create revenue and was able to pay the salary of its staff. The university spends lakhs of rupees every year to print the books of Jamia distance courses. But now, the books for Jamia's distance courses are being printed from a private publishing house. The university's own printing press is dying. During the Covid -19 pandemic, Maktaba Jamia 

 the publication of their famous magazine 

. A few years ago, the Maktaba’s branch located in Bhendi Bazar, Mumbai was asked by the Jamia authorities to 

take the accounts and revenue files to Delhi

. Everyone feared that it may close soon. The news sparked among the Urdu lovers in the city. Many Urdu lovers, writers and journalists held a press conference at the doorstep of Maktaba’s outlet. It was saved due to their relentless efforts. Recently, the Mumbai branch organised an Iftar Party at the outlet for all the booklovers and writers.

In Delhi, it had two branches– in the Jamia campus (near Gate No. 4) and in 

 (Old Delhi). In 2023, news surfaced that Jamia Maktaba had 

 without prior notice. The sole staff member running the shop retired that year, leading to its closure. A kebab counter was opened outside the closed shop. Many literature lovers including senior Urdu journalist 

 raised their protest against the sudden and unannounced closure of the Maktaba. It was alleged that Jamia administration has neglected such an important institution which was not only publishing books but also generating revenue for the university. The news of the closure was circulated widely.

, a retired teacher and former Chancellor of 

, who is also the grandnephew of freedom fighter and first education minister 

 the Vice Chancellor of Jamia. He requested the VC office to appoint him to serve the Maktaba on a salary of Rs.1 per month only. Later, news came that the Maktaba has been reopened. Recently, I enquired about the Maktaba through one of my friends who lives in Purani Dilli (Old Delhi). He said: “

ab to band hi rehta hai ye” (It just stays closed now).

 The second outlet in Delhi i.e. in the university campus is surviving just as a centre of books for the entrance exams. New students hardly know it as an outlet of Maktaba Jamia. The head office of 

situated at Gate No. 18 of the university has been closed for several months now. The signboard at the front of the building describes it as the "largest centre for scientific, literary, cultural and religious books". However, the worn out walls, aged windows and faded paint of the building reveal the present condition of the Maktaba. A small CNG-powered pickup vehicle parked in the premises of the office is still waiting for its operator.

 filed an RTI seeking for the funds allotted to Maktaba Jamia in the last five years. In its reply, JMI said "no fund has been allotted to the Maktaba Jamia in the last five years". This shows the effort incurred by the university to save its heritage. 

 spends lakhs of rupees for publication of different magazines, prospectus, books for distance and open courses, answer sheets, banners and posters for different events. These rupees are enough to save the Maktaba from dying if any order may be passed like Vice Chancellor Najeeb Jung did, by asking all the departments to purchase stationery and printing materials only from Maktaba. Maktaba Jamia Limited is not just an ordinary press, it is our heritage, our past and one of the pillars of Jamia.

: The opinions expressed in this publication are those of the author. They do not purport to reflect the opinions or views of The Jamia Review or its members.

Articles by Md Afan Abdullah

Decoding Bail under PMLA: A Tug-of-War between Rights and Regulation

Maktaba Jamia: The Publishing Giant of JMI is Dying

Decoding Bail under PMLA: A Tug-of-War between Rights and Regulation

Maktaba Jamia: The Publishing Giant of JMI is Dying