Short answer: Generally, yes: a statement recorded by the ED under Section 50 PMLA can be used as evidence, because the Supreme Court has held that ED officers are not police officers. The main exception is a statement recorded while you are already in custody under the PMLA, which the Supreme Court held inadmissible against you in 2024. There is no general right to have a lawyer sit beside you during questioning, although courts have sometimes allowed a lawyer to remain within sight but out of hearing.
Why Section 50 statements are treated as evidence
In Vijay Madanlal Choudhary v. Union of India (27 July 2022), a three-judge bench of the Supreme Court upheld the ED’s powers under the PMLA. It held that ED officers are not police officers, so the bar on using confessions made to the police does not apply to Section 50 statements. Section 50(4) also treats the recording as a judicial proceeding, and Section 50(3) obliges the person to state the truth. In Abhishek Banerjee v. Directorate of Enforcement (2024), the Court repeated that the protection against self-incrimination under Article 20(3) applies once a person is formally arrested by the ED.
Admissible does not mean conclusive; its weight depends on how it was recorded and whether documents support it.
The custody exception
In Prem Prakash v. Union of India (28 August 2024), Justice B.R. Gavai and Justice K.V. Viswanathan held that when an accused is in custody under the PMLA, whatever case that custody arises from, a Section 50 statement given to the same investigating agency is inadmissible against the maker. Such a person, the Court said, cannot be treated as one operating with a free mind, and the statement would be hit by Section 25 of the Indian Evidence Act, now Section 23 of the Bharatiya Sakshya Adhiniyam, 2023. The Court also noted that a person in judicial custody cannot simply be summoned; the ED needs the permission of the court that remanded him.
Can a lawyer be present?
In Poolpandi v. Superintendent, Central Excise (14 May 1992), a three-judge bench held that a person questioned under the Customs Act or the old foreign exchange law is not an accused for Article 20(3) purposes and that questioning without a lawyer present does not violate Article 21. The lawyer-presence point was decided in an appeal brought by the Enforcement Directorate itself.
Courts have, however, made exceptions where there is a real apprehension of coercion. In June 2022, a Special Court allowed an advocate to remain at a distance where he could see, but not hear, a minister being questioned by the ED. The Delhi High Court (Justice Yogesh Khanna) stayed that condition on the facts, noting that the questioning was being video and audio recorded, but accepted that a court may permit visible-but-not-audible presence where a genuine apprehension is shown. Similar arrangements have been allowed by the Supreme Court in particular Customs Act cases.
You can always take advice before and after each appearance and raise concerns about the recording in writing.
Related questions
Can I refuse to answer ED’s questions?
Section 50(3) obliges a summoned person to state the truth, so a blanket refusal carries risk. At the same time, the Supreme Court said in Pankaj Bansal (2023) that the ED cannot expect an admission of guilt and that a refusal to confess is not non-cooperation. Answering factually, and saying so where you do not know or do not remember, is the usual course.
What if my statement was recorded wrongly or under pressure?
Read the statement in full before signing and correct mistakes in your own hand. If you later believe it does not reflect what you said, or was not voluntary, a prompt written retraction to the officer, and where relevant to the court, puts that on record. Whether a retraction affects the weight of the statement is for the court to decide.
Is a statement recorded late at night valid?
There is no automatic rule that it becomes invalid, but the Bombay High Court in Ram Kotumal Issrani (2024) criticised questioning until about 3:30 am and directed the ED to frame directions on timings. The ED later told officers to record statements within office hours. The timing and length of questioning can be raised when the statement is relied on.
Do I get a copy of my statement?
The PMLA does not give an automatic right to a copy at the time of recording. You can request one. Statements the ED relies on are ordinarily part of the material filed with the prosecution complaint before the Special Court.
Practical points
- Treat every Section 50 appearance as evidence-making; prepare as you would for court.
- If you are in custody, remember the Prem Prakash protection and inform your lawyer of any questioning.
- If you fear coercion, a request for counsel at a visible distance must be made to the court with specific reasons.
Sources: Vijay Madanlal Choudhary v. Union of India, 27 Jul 2022; Prem Prakash v. Union of India, 28 Aug 2024; Poolpandi v. Superintendent, Central Excise, 14 May 1992; LiveLaw, 4 Jun 2022.
For a confidential discussion on ED/PMLA matters, see ED and PMLA Defence.
General legal information only; not legal advice or solicitation.
