SC questions ED on non-sharing of ‘un-relied’ documents; reserves verdict

Does withholding "clinching" documents in the favour of a person accused of money laundering violate his right to fair trial under Article 21 of the Constitution?

A three-judge Bench led by Justice Abhay S Oka on Wednesday reserved its verdict on entitlement of an accused under the Prevention of Money Laundering Act (PMLA) to get seized documents that the prosecution does not rely on before the commencement of trial.

“What troubles us is that when there can be a clinching document, which is very much there, very much exists, and only because of the procedural angles, the accused does not get that document. Does it not affect Article 21? Now the law has progressed, the interpretation of the Constitution has progressed. Can now in today's world we say that there is a document in existence, but relying upon some technicalities, you will not get it?” the Bench wondered.

The Bench said it was considering whether it should lay down the law on this issue or refer it to a larger bench for a definitive pronouncement.

While hearing an appeal against a Delhi High Court judgment holding that the prosecution is not obligated to provide such documents at the pre-trial stage -- the Bench posed several probing questions to the Enforcement Directorate.

If an accused needed documents to apply for bail or to demonstrate a plausible defence, there should be no restriction on their access, noted the Bench -- which also included Justice A Amanullah and Justice AG Masih.

“During bail proceedings there is no prohibition on the court considering plausible defence of the accused...If he wants to rely on documents which are not in his custody, he has the right to get those documents. You can't say that he can only produce documents in his pocket. Otherwise it is arbitrary. Whether the document is of sterling quality is for the court to decide,” it said.

On behalf of the appellants, senior counsel R Basant and Gopal Sankaranarayanan argued that the PMLA accused was entitled to get both relied-upon and un-relied upon documents at the earliest stage.

Contesting their arguments, Additional Solicitor General SV Raju, representing the Enforcement Directorate, submitted that the accused had the right to get the un-relied on documents only after framing of charges, and that he was only entitled to a list of the documents till the trial began.

Raju said sharing the documents with the accused can impede the investigation. Even if the investigation against a particular accused may be complete, it may still be ongoing with regard to other accused, and the document in question may be relevant for the investigation against the other accused.

The Bench, however, noted that in modern times, soft copies are available, and it is easy to scan and provide even bulky documents.