AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2016 (1) TMI 833
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....illary challenge is further to the summons issued to the petitioners by the officers of the ED under Section 50 (2) & (3) of the PMLA on the ground that the offences are non-cognizable in nature and in the absence of any prior sanction/order of a Magistrate, the investigation being conducted by the said authorities, is not justified. Prayer has also been made that if the offences are cognizable, then investigation be done by some other authorities/officers, appointed/authorized than respondents No.2 to 4 and direct examination and recording of statement of the petitioners in the presence of their Advocate. Videography be conducted during the examination and recording of the statements of the petitioners and for quashing the action of the respondents, seizing the bank accounts of the petitioners. 3. The case of the petitioners is that the respondents are investigating the matter in ECIR No.CDZO/05 dated 25/03/2013, relating to FIR No.4 dated 22.07.2009, lodged at Police Station (Vigilance) Chandigarh under Sections 419, 420, 467, 468, 471, 201, 120B IPC and 13(1)(d) and 13 (2) of the Prevention of Corruption Act, 1988, registered against one Mr.G.S.Sawhney, Advocate, his Clerk, Har....
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....the year 2006 and summons had been sent to him and he had also filed application for grant of anticipatory bail along with petitioner Nos.3 & 4. Petitioner No.9 is stated to be the real brother of petitioner No.4 and running his business at Village Suhin, Tehsil Rakkar, District Kangra. It was, accordingly, alleged that the said petitioners were nowhere connected or involved in any manner in the FIR registered by the U.T. Police and with the impugned ECIR and the officers of the respondent-ED had transgressed the circumscribed limits as well as illegally exercised investigating powers by assuming jurisdiction in a completely unlawful manner. 5. The investigation was, thus, challenged on various grounds, to which, we will advert to later and thus, the authority of the ED was challenged, including the seizure of accounts. It was pleaded that initially it was provided that the offences were to be cognizable and non-bailable but vide the amendment in the year 2005 the offence under the Act was made non-cognizable and only a complaint could be lodged. The investigation could not be carried out of a non-cognizable offence without the order of the jurisdictional Magistrate and therefore,....
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....wed that petitioners no. 4 to 6 and petitioner No.9 along with one Ajay Singh, petitioner in CWP No.1418 of 2015, had floated shell companies which were seven in number and the details of which are given as under: "1. Shivalik Services & Promoters Pvt. Ltd. 2. Mount Hills Services & Promoters Pvt. Ltd. 3. Sharvila Builder and Developers Pvt. Ltd. 4. Awasthi Real Estates Pvt. Ltd. 5. Lake View Services & Promoters Pvt. Ltd. 6. Radhey Sham Saree Centre Pvt. Ltd. 7. Solan SR Services Pvt. Ltd." 7. Ajay Singh had signed most of the documents whereas petitioner No.8 was junior of Mr.Mukesh Mittal, who was the mastermind of illegal sale of SCF No.8, Sector 20, Chandigarh relating to Mr.Tara Singh. All the documents relating to the said SCF were prepared in the office of Mr.Mukesh Mittal and most of the documents were signed by Mr.Ajay Singh. Number of documents pertaining to one bigha of land situated in Kandaghat area of Himachal Pradesh and transactions of crores of rupees were found during the search from the premises of Mr.Mukesh Mittal and Vineet Goyal-petitioner no. 5 and money had been routed through his accounts. The respondent-ED was finding out the source, acquis....
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.... of Mr.Mukesh Mittal, including the document giving the attorney to Mr.Harnek Singh. He had also not appeared with the required documents and had also withdrawn his application for anticipatory bail. 10. In reply to the legal issues raised, it was pleaded that the Act was a complete statute and giving power to the Director, Deputy Director or Assistant Director to investigate the offence of money laundering and the same is cognizable and non-bailable, as per Section 45. The Police Officers were barred from investigating into the offence under the Act unless specifically authorized by the Central Government by its general and special order. The provisions of Section 155 (2) of the Code of Criminal Procedure, 1973 (for short, the 'Cr.P.C.') were inapplicable, in view of Section 71 of the PMLA Act which had an overriding effect on any other law and Special Courts had been set up to deal with the offences under Sections 3 & 4, which is the Court of Sessions. The Court of Judicial Magistrate had no jurisdiction to issue permission to investigate. As per the provisions of the Act, intimation about the search operation and regarding seizure of documents and freezing of bank accounts and ....
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....not disclosing his correct address and the address was given of Kharar and that he was also residing in Chandigarh. The FIR No.5 registered against Mr.Ajay Singh was baseless and this Court had stayed proceedings in the said case and the officials were inflicting torture and third degree methods on the petitioners. 13. Mr. Vikram Chaudhary, Sr. counsel has accordingly raised two legal submissions on the basis of the above facts and pleadings. It is his contention that the PMLA initially provided that the offences under the Act were to be cognizable and non-bailable, however, in view of the amendment w.e.f. 01.07.2005, the offences have been made non-cognizable and the Special Court can only take cognizance of the offence punishable under Section 4 upon a complaint in writing made by the authorized officers. It is accordingly submitted that the investigation which is thus in progress and the summoning of the petitioners by the officers of the E.D. is without jurisdiction in the absence of any complaint having been filed before the Special Court. Reliance has been placed upon Section 155(2) of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.) to submit that without the order ....
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.... of the Apex Court in Directorate of Enforcement vs. Deepak Mahajan and another, AIR 1994 SC 1775 (1) to submit that the enforcement officers were not empowered to file a final report whereas the police officers could do so. Reliance was also placed upon the directions issued by the Apex Court in D.K. Basu vs. State of Bengal, AIR 1997 SC 610 (1) to contend that principles of arrest and detention had been laid down and the same were openly being violated in the present case by the officials of the E.D. Reference was also made to the Constitution Bench judgment of the Apex Court in Lalitha Kumari vs. Government of U.P. and others, 2014 (2) SCC 1 to submit that principles were laid down that for a cognizable offence to be made out, the FIR was to be registered before investigation and to ensure that there is a judicial check provided on the authorities and the word "shall" in Section 154 of the Cr.P.C. provided that it was mandatory to register an FIR if a cognizable offence is made out. But in the present case, neither any such FIR has been registered and the lodging of the ECIR and the investigation was without jurisdiction. 15. Mr. D.D. Sharma, Special Public Prosecutor under the....
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.... and subject to certain conditions as per Section 45(1)(a). It was accordingly submitted that under Sections 3 and 4, where any person was involved in the process of the proceeds of crime including its concealment, possession and acquisition, he would be guilty of the offence of money laundering if he was claiming it as untainted property. Section 4 provided that the punishment for money laundering was not to be less than 3 years which may extend to 7 years and accordingly, the Cr.P.C. was relied upon to submit that once the sentence was more than 3 years, the offence would be cognizable as such. 17. In order to rebut the second contention raised by senior counsel for the petitioner, reliance was placed upon Section 73 of the PMLA which provided for making of the Rules. Reliance was made to the various Rules framed under the Act which pertain to the provisional attachment of properties and supply of reasons, receipts to be issued and the management of confiscated properties, the maintenance of the records and the forwarding of reasons to the adjudicating authorities alongwith the impounding and custody of the records and the period of retention. Similarly, reference was also made ....
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.... part of the scheduled offences as described under part A of the schedule. Section 2(p), 2(u), 3 and 4 reads thus:- 2(p) "money-laundering" has the meaning assigned to it in section 3; 2(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." 3. Offence of money-laundering.-Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected [proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming] it as untainted property shall be guilty of offence of money-laundering. 4. Punishment for money-laundering.-Whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine [***] Provided that where the proceeds of crime involved in money-laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this se....
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....udicating authority under sub-clause (2) and the person arrested is to be taken to the Judicial Magistrate within 24 hours or a Metropolitan Magistrate having jurisdiction. The said Section reads thus:- "19. Power to arrest.- (1) If the Director, Deputy Director, Assistant Director, or any other officer authorised in this behalf by the Central Government by general or special order, has on the basis of material in his possession reason to believe (the reason for such belief to be recorded in writing) that any person has been guilty of an offence punishable under this Act, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest. (2) The Director, Deputy Director, Assistant Director or any other officer shall, immediately after arrest of such person under sub-section (1), forward a copy of the order, along with the material in his possession, referred to in that sub-section, to the Adjudicating Authority, in a sealed envelope, in the manner, as may be prescribed and such Adjudicating Authority shall keep such order and material for such period, as may be prescribed. (3) Every person arrested under sub-section (1) shall within twenty-fou....
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....sed and admittedly, notices had been issued for putting in appearance. 25. This Court in a connected matter in CWP No. 21705 of 2014, Sudeep Kaur Sawhney vs. Union of India and others decided on 19.05.2015 has already relegated the petitioner therein to an alternative and efficacious remedy before the authorities. The claim of the petitioner therein on the issue as to whether the attachment order was liable to be set aside on account of the fact that period of more than 30 days had expired under Section 17(4) from the date of the freezing of the accounts was rejected. Thus, the petitioners have an alternative and efficacious remedy as such before the said authorities as disputed questions arise as to the source of funds, which is to be decided by the authorities and whether the money is part of the proceeds of crime. It is settled principle that this Court is not to go into the disputed questions of facts which arise as the petitioners would have a right of appeal after adjudicating authorities have passed an order. 26. The first legal issue which, thus, arises for consideration before this Court is that whether the offence is cognizable or non-cognizable in view of the amendment....
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.... is being sought to be raised by learned counsel for the petitioner that the offences are now only bailable in view of the amendment and non-cognizable cannot be accepted as the petitioners are covered under Section 4 of the Act. Chapter V, as noticed above, provides the power of summons, searches and seizures as per the investigation which has been carried out and the same is to be done by the authorities appointed under the Act to the exclusion of the police officers under Section 45(1A) until duly authorized. Section 19 further provides the powers of arrest upon the reasons to believe and to be recorded in writing. The investigation, for the purposes of money laundering for the collection of evidence gives the power to the authorities to arrest. The definition of the cognizable offence provided under Section 2(c) of the Cr.P.C. reads thus:- (c) "cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant; 31. The definition of investigation under Section 2(h) of the Cr.P.C. pertains to the proceedings under the....
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.... Court shall not take cognizance of any offence under section 4 except on a complaint made by the Director or any Officer authorized by the Central Government or the State Government. Sub- Section (1-A) of Section 45 specifically provides that notwithstanding the provisions contained in the Code of Criminal Procedure, no police officer shall investigate into an offence under the Act unless specifically authorized by the Central Government by a general or special order. The provisions of the Act has been given over-riding effect upon any other law and further categorically mentioned that any provision of Code of Criminal Procedure which are inconsistent with the provision of the this Act which deals with attachment, confiscation, investigation and prosecution etc. shall not apply. There is no provision in the Act which is a special statute for filing of police report. It could file a complaint only after completion of investigation by the authorized authority, which shall be the basis of taking cognizance. 13. As noticed above, the word "investigation" as defined in Section 2(na) has been inserted by virtue of Amendment Act 20 of 2005. According to the definition the word "investi....
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....sed being committed to it for trial. Section 46 further provides that the provisions of the Cr.P.C. shall apply to the proceedings before a Special Court. Sections 44 and 46 of the PMLA read thus:- "44. Offences triable by Special Courts.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- [(a) an offence punishable under section 4 and any scheduled offence connected to the offence under that section shall be triable by the Special Court constituted for the area in which the offence has been committed: Provided that the Special Court, trying a scheduled offence before the commencement of this Act, shall continue to try such scheduled offence; or] (b) a Special Court may, [***] upon a complaint made by an authority authorised in this behalf under this Act take [cognizance of offence under Section 3, without the accused being committed to it for trial]. [(c) if the court which has taken cognizance of the scheduled offence is other than the Special Court which has taken cognizance of the complaint of the offence of moneylaundering under sub-clause (b), it shall, on an application by the authority authorised to file a complaint under ....
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....r Section 3 as per the first schedule of Cr.P.C. would be a cognizable offence and a non-bailable offence and Special Court would only take cognizance of the offence upon the complaint made by the authorities under the Act in writing in view of the provisions of the Act. A reading of Section 46 would rather go on to show that it has been specifically provided that Cr.P.C. would apply to the proceedings before the Special Court for the purposes of bails or bonds. Thus, it would be apparent that it is at this stage the procedure prescribed under the Code would come into play for the limited purpose where a person has been taken into custody by the authorized officers under the Act and produced before the competent Court, who will, then proceed to decide the right of bail in accordance with the provisions of the Cr.P.C. The reference to the provisions of Section 155(2) Cr.P.C. whereby, there is a bar for the police officer to investigate the noncognizable offence without the order of the Magistrate having power to try such case or commit the case for trial thus would be without any basis in view of the fact that the police officers have been specifically excluded from investigating in....
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....m by the Special Court. The petitioners are admittedly not those accused who are accused of the offences under Part A, proceedings against whom are already pending separately. 43. The said argument cannot be accepted as if the offence is to be bailable, it would have specifically been provided so by the Legislature. The doctrine of implied repeal was subject matter of consideration of the Apex Court in Harshad S. Mehta and others vs. State of Maharashtra, 2001 (8) SCC 257. The Apex Court dealt with the issue as to whether the Special Court had the inherent power to grant pardon. The argument raised was that it was excluded by necessary implication as there was no such provision in the Special Court (Trial of Offences relating to Transactions Insecurities) Act, 1992. It was the argument that there was no legislative intendment of conferring the power of pardon on the Special Court which was repealed by noticing that Courts lean against implied repeal. The relevant observations read thus:- "Mr.Jethmalani further contends that simply to confer on the Special Court the power to tender pardon by itself is not enough without conferring on it the power to punish the person who accepts ....
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.... derogant (a general provision does not derogate from a special one). One of the important test to determine the issue of implied repeal would be whether the provisions of the Act are irreconcilably inconsistent with those of the Code that the two cannot stand together or the intention of the legislature was only to supplement the provisions of the Code. This intention is to be ascertained from the provisions of the Act. Courts lean against implied repeal. If by any fair interpretation both the statutes can stand together, there will be no implied repeal. If possible implied repeal shall be avoided. It is, however, correct that the presumption against the intent to repeal by implication is overthrown if the new law is inconsistent with or repugnant to the old law, for the inconsistency or repugnancy reveals an intent to repeal the existing laws. Repugnancy must be such that the two statutes cannot be reconciled on reasonable construction or hypothesis. They ought to be clearly and manifestly irreconcilable. It is possible, as contended by Mr. Jethmalani, that the inconsistency may operate on a part of a statute. Learned counsel submits that in the present case the presumption again....
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....r Section 31 of the Representation of the Peoples Act, 1950, which was a non-cognizable offence. 47. The second issue raised that the petitioners have been prejudiced and that the authorities are acting as a law unto themselves and that the procedure provided under Chapter 12 of the Cr.P.C. has to be followed has partly been answered against the petitioners in view of the provisions of Sections 65 and 71 while answering the first issue. Sections 4 and 5 of Cr.P.C. specifically provide that offences under any other law shall be investigated and dealt with in accordance with the same provisions but subject to any enactment for the time being in force regulating the manner or place of investigation. Similarly, Section 5 provides that nothing contained in the Code shall in the absence of specific provision to the contrary shall affect the special or local law for the time being. Sections 4 and 5 of Cr.P.C. reads thus:- Sections 4 and 5 Cr.P.C. "4. Trial of offences under the Indian Penal Code and other laws (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contai....
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....of investigation to be carried on by any prosecuting agency who is invested with the power of investigation. xx xx xx xx 115. It should not be lost sight of the fact that a police officer making an investigation of an offence representing the State files a report under Section 173 of the Code and becomes the complainant whereas the prosecuting agency under the special Acts files a complaint as a complainant i.e. under Section 61(ii) in the case of FERA and under Section 137 of the Customs Act. To say differently, the police officer after consummation of the investigation files a report under Section 173 of the Code upon which the Magistrate may take cognizance of any offence disclosed in the report under Section 190(1) (b) of the Code whereas the empowered or authorised officer of the special Acts has to file only a complaint of facts constituting any offence under the provisions of the Act on the receipt of which the Magistrate may take cognizance of the said offence under Section 190(1)(a) of the Code. After taking cognizance of the offence either upon a police report or upon receiving a complaint of facts, the Magistrate has to proceed with the case as per the procedure pres....
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....ejected. Section 22 of the said Act was taken into consideration to notice that only a complaint could be filed by the appropriate authority. It was thus held that under special Statutes, investigation could be conducted and there was no provision to file a police report and a specific bar had been created by the Parliament. The relevant observations read thus:- "19. Section 22 of TOHO prohibits taking of cognizance except on a complaint made by an appropriate authority or the person who had made a complaint earlier to it as laid down therein. Respondent, although, has all the powers of an investigating agency, it expressly has been statutorily prohibited from filing a police report. It could file a complaint petition only as an appropriate authority so as to comply with the requirements contained in Section 22 of TOHO. If by reason of the provisions of TOHO, filing of a police report by necessary implication is necessarily forbidden, the question of its submitting a report in terms of Sub-section (2) ofSection 173 of the Code did not and could not arise. In other words, if no police report could be filed, Sub- section (2) of Section 167 of the Code was not attracted. 20. It is....
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....part from the police constituted under the Police Act, 1861, certain Officers of specified organizations have been invested powers of an Officerin-charge of a Police Station. With such conferment of powers, the investigation of the offences can be conducted by the officers, but such power of investigation is under a special Act and not under the Code. After such investigation, which is not any way analogous to the investigation carried out by police under Section 2 (h) of the Code, the empowered Officer can file a complaint in terms of Section 190 of the Code. 39. Though Section 193 of the Code prohibits that no Court of Sessions shall take cognizance of any offence as a Court of Original Jurisdiction unless the case has been committed to it by a Magistrate, but such provision being in conflict with Section 36A of the Act, the police report or a complaint can be filed before the Court of Sessions directly. When a complaint is filed, the Court of Sessions commences proceedings regulated by Chapter XV of the Code. Such provision inter alia contemplates that if a complaint is made in writing, the Magistrate is not required to examine the complainant and the witnesses, if a public se....
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...." 53. A perusal of the rules which have been framed under Section 73 (2)(ee), (f), (jj), (m), (n), (p) and (w) would go on to show that under subclause 2(ee) (f) and (m), the manner of seizing and taking possession of the property attached or frozen and the rules relating to search and seizure and the reasons and material referred to in sub-section (2) of Section 17 can be framed. Section 73(2)(ee), (f), (jj), (m), (n), (p) and (w) read thus:- "73. Power to make rules.-(1) The Central Government may, by notification, make rules for carrying out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:- (ee) the manner of seizing or taking possession of property attached under section 5 or frozen under sub-section (1A) of section 17 or under sub-section (4) of section 8; (f) the manner in which and the conditions subject to which the properties confiscated may be received and managed under subsection [(jj) the manner of identifying beneficial owner, if any, from the clients by the reporting entities under clause (d) of subsection (1) of section 12;]....
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....or Freezing and the Manner of Forwarding the Reasons and Material to the Adjudicating Authority, Impounding and Custody of Records and the Period of Retention), the provisions of the Cr.P.C. are to apply in so far as they are not inconsistent with the provisions of the Act relating to Search and Seizure. Similarly, as per Rule 11, the Summoning Officer has to issue summons in Form V while exercising powers under sub-sections 2 and 3 of Section 50 of the Act. Rules 5 and 11 alongwith Form V are reproduced as under:- "5. Applicability of the provisions of the Code of Criminal Procedure, 1973.-The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply,in so far as they are not inconsistent with the provisions of the Act relating to search and seizure. 11. Forms of records.-The Summoning Officer shall, while exercising powers under sub-sections (2) and (3) of section 50 of the Act, issue summons in Form V appended to these rules." FORM V (See rule 11) FORM FOR SUMMONS .................................................... .................................................... .................................................... [ADDRESS OF THE SUMMONING OFFICE....
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....ney-Laundering (The Forms and the Manner of Forwarding a Copy of Order of Arrest of a Person Along With the Material to the Adjudicating Authority and its Period of Retention), it has been specifically provided that the Arresting Officer shall prepare an index of the copy of the order and the material in possession and forward the index and order to the adjudicating authority in a sealed envelope. The authorities are to receive the said copy of the order of arrest and preserve the same under Rule 5 for a period of 10 years or as prescribed. As per Rule 6, the arresting Officer has to sign the arrest order in Form III while exercising powers under Section 19(1) of the Act. The said rule reads thus:- 3. Manner of forwarding a copy of the order of arrest and the material to the Adjudicating Authority.-(1) The Arresting Officer shall prepare an index of the copy of the order and the material in possession and sign each page of such index of the copy of the order and the material and shall also write a letter while forwarding such index, order and the material to the Adjudicating Authority in a sealed envelope. (2) The Arresting Officer shall place an acknowledgement slip in Form I....
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....been prescribed under the Act and the said Rules are not subject matter of challenge. In the absence of any challenge raised and in view of the detailed procedure prescribed and in view of the provisions of the Act, the argument which is sought to be raised that the officers of the E.D. are acting without any jurisdiction in an arbitrary manner and without any authority is without any basis. The statute has given ample power to the authorities and methodology has been prescribed which prima facie goes on to show that sufficient safeguards are in place and the adjudicating authority is to monitor the investigation and the arrest can only be on the basis of reasons to be recorded in writing. Neither any reference had been made to the rules by the petitioner and neither it had been complained that the said rules have been violated in any manner. Due to the lack of any challenge being raised to the same, we are of the opinion that the argument raised that the principles laid down in D.K. Basu's case (supra) have been violated is without any basis. Similarly, the observations in Lalitha Kumari's case (supra) would not be applicable to the facts and circumstances of the case as the issue....
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.... certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden." 62 The Division Bench judgment in Rakesh Manekchand's case (supra) can be of no assistance to the counsel for the petitioners as admittedly, the order dated 03.08.2015 is interim in nature. Rather, a perusal of the order would also go on to show that there were observations that the issue required deeper consideration though various observations have been made in favour of the petitioners which are sought to be highlighted. Interim orders of this nature cannot be held to be a precedent or of any persuasive value since there has to be a final decision. Interim directions always go with the final decision and cannot be taken into consideration. For precedent to be binding, there has to be final decision and interim directions, issued in a pending case, would go with the final decision and cannot be taken into consideration. The said principle as to what is the "ratio decidendi" and the authoritative and binding element of the final judgment, laying down the precedent is to be taken into consideration and not the interim orders. Reference can be ....