2014 (10) TMI 436

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....eged crime on account of which his properties were attached has not been proved and the person accused of the said crime has been acquitted, the attachment on his properties under the Prevention of Money Laundering Act, 2002 (hereinafter referred to as the 'PMLA') has not been lifted. 2. It is averred that pursuant to a complaint filed with PS Palam Vihar, Gurgaon an FIR (i.e. FIR No.27/2008) was registered against one Dr. Upender Kumar and others for offences punishable under Section 420 of the IPC and Section 18/19 of the Transplantation of Human Organs Act, 1994. The investigation with respect to the alleged offences was conducted by CBI and based on its final report dated 29.04.2008, a case (case no. 7/2008) for offences under variou....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....008) alleging offences under Section 3 of the PMLA is pending trial before the Special Judge, PMLA. The petitioner's petition (Crl. MC No.1622/2013) under Section 482 of the CrPC seeking quashing of the said criminal complaint is also pending disposal before this Court. 6. The petitioner states that on 22.03.2013, Dr. Jeevan Kumar, was acquitted of all charges framed in CBI Case No. 7 of 2008. Thus the alleged scheduled crime of Dr. Jeevan Kumar, which is stated to be the basis of the attachment of petitioner's properties under the PMLA has not been established. The petitioner states that the concerned agency (in this case CBI) has not filed an appeal against such acquittal. 7. The learned counsel for the petitioner has referred to Se....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....counsel for the parties. 11. Chapter III of the PMLA contain provisions for attachment, adjudication and confiscation of "proceeds of crime". Section 5(1) of the PMLA is relevant and is quoted below for ready reference: "5. Attachment of property involved in money-laundering (1) Where the Director or any other officer not below the rank of Deputy Director authorized by the Director for the purposes of this section, has reason to believe (the reason for such belief to be recorded in writing), on the basis of material in his possession, that - (a) any person is in possession of any proceeds of crime; and (b) such proceeds of crime are likely to be concealed, transferred or dealt with confiscation of such proceeds of crime under....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... under:- "(u) "proceeds of crime" means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property;" 13. It is apparent from the above definition of the expression "proceeds of crime" that existence of criminal activity relating to a scheduled offence is the substratal condition for existence of proceeds of crime and the applicability of the provisions of Section 5 of the PMLA. Essentially, the edifice of PMLA rests on the foundation of existence of a scheduled offence. 14. The "offence of money-laundering" is defined under Section 3 of the PMLA which reads as under:- "3. Offence of money-laundering- Whosoever direc....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....mended provisions, Sub-section 5 and Sub-section 6 of Section 8 of the PMLA, read as under: "(5) Where on conclusion of a trial of an offence under this Act, the Special Court finds that the offence of money-laundering has been committed, it shall order that such property involved in the money-laundering or which has been used for commission of the offence of money-laundering shall stand confiscated to the Central Government. (6) Where on conclusion of a trial under this Act, the Special Court finds that the offence of money-laundering has not taken place or the property is not involved in money-laundering, it shall order release of such property to the person entitled to receive it." 18. The suggestion of the learned ASG that an a....