The burden of proof in relation to the Prevention of Money Laundering Act

 1. Section 45 of the Prevention of Money Laundering Act (PMLA) deals with the provision for bail.

2. Section 45 stipulates twin conditions to be satisfied in order for the judge to grant bail to the accused.
a. Firstly, the public is being heard and given the opportunity to oppose the grant of bail.
b. Secondly, the court believes that there are reasonable grounds for the court to believe that the accused is not guilty of the offence that he has been charged with and is not likely to commit the offence while he or she is on bail.

3. Now, these conditions are problematic in various ways, as they put the burden on the reverse side, and in fact, the accused has to satisfy the court that he or she has not committed the offence.

4. Recently, the Hon’ble Supreme Court, while hearing a petition under Article 32, denounced the trend of petitioners circumventing alternative channels of appeal and submitting Article 32 petitions to the Supreme Court in an effort to directly contest summonses or request bail while pretending to be contesting the PMLA’s provision. This decision came after a review petition was filed against the Vijay Madanlal Choudhary judgement delivered on July 27, 2022.

5. Interestingly, Section 45 was held unconstitutional on the grounds of violating Articles 21 and 14 of the Indian Constitution. However, the Finance Act of 2018 revived the twin conditions, and since then, these have continued to exist.