‘Twin Test’ under PMLA

The Enforcement Directorate challenged a bail order for not applying the ‘twin test’ under the PMLA 2002 correctly.

About Twin Test:

• Section 45 of the PMLA is crucial as it outlines the conditions under which bail can be granted. It specifies that no accused shall be granted bail unless the Public Prosecutor has the opportunity to oppose the bail application.
• When the Public Prosecutor opposes the application, the court must ensure two key conditions are met (known as the twin test):
  • There are reasonable grounds for believing that the accused is not guilty of the offence charged.
  • The accused is not likely to commit any offence while on bail.
• This stringent twin condition poses high thresholds for the accused, essentially requiring them to prove their prima facie innocence and assure that they will not commit further offences while released.
• The Supreme Court upheld the application of the twin test in the Vijay Madanlal Choudhary case of 2022, reinforcing its validity.
• This provision contrasts sharply with general bail norms, as it establishes bail not as a rule but as an exception within the PMLA framework. The negative phrasing in the legislation emphasizes that bail is typically not granted under PMLA without satisfying these stringent conditions.
• It is mandatory for courts to hear the Public Prosecutor in all bail applications under this section, especially when the prosecutor opposes the bail, reinforcing the need for the twin test.
• Similar provisions requiring stringent bail conditions are found in other laws dealing with serious offences, such as Section 36AC of The Drugs and Cosmetics Act, 1940, Section 37 of The Narcotic Drugs and Psychotropic Substances Act, 1985, and Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967.
• These laws also necessitate a high burden of proof on the accused, often making it challenging to obtain bail against the powerful opposition of the state.