TaxTMI 
TaxTMI 
TaxTMI 
2017 (8) TMI 135
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.... the 3rd respondent, Deputy Superintendent of Police, CBI had filed an FIR No.RCMA1/2005A/0031 on 29.06.2005 for alleged possession of assets and pecuniary resources in the name of First Petitioner and in the name of his family members for alleged commission of offences under Section 13(2) r/w 13(1)(e) of the Prevention of Corruption Act 1988. A final report under Section 173(2) of Cr.P.C.was also filed on 13.01.2009 by 3rd respondent before the Principal Special Judge for CBI Cases, Chennai, in C.C.No.18 of 2009 for the offences punishable under Section 13(2) r/w 13(1)(e) of the Prevention of Corruption Act, 1988 against 1st petitioner and Section 109 of I.P.C. r/w 13(2) r/w 13(1)(e) of Prevention of Corruption Act, 1988 against 2nd petitioner. Check period was shown as 01.05.1997 to 30.06.2005. 3rd and 4th petitioners were not arrayed as accused in the above C.C.No.18 of 2009. 2.(b) Trial is under progress in the Court of XIV Additional Special Judge for CBI Cases. Presently the Investigating Officer, P.W.74 of the case is being cross-examined by the defence side. In the meanwhile, after six years of the aforesaid alleged offence u/s 13(2) r/w Sec.13(1)(e) of the Prevention of C....
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....eenita Gupta & Miss Vishakha Gupta 33,000.00 4 89 STDR No.3564835 Dated 26.12.2003 maturing on 26.12.2006 at SBI, Kodambakkam Branch Shri Ajay Kumar Gupta, Smt. Veenita Gupta & Miss Vishakha Gupta 33,000.00 5 97 8 Years 7 Months Kisan Vikas Patra N.51 CD 924858 dated 01.02.2005 issued by Sub-Post Master, Sowcarpet NDSO, Chennai - 79 Miss Vishakha Gupta 10,000.00 6 101 8 Years 7 Months Kisan Vikas Patra N.51 CD 924842 dated 25.01.2005 issued by Sub-Post Master, Sowcarpet NDSO, Chennai - 79 Miss Vishakha Gupta 10,000.00 7 105 8 Years 7 Months Kisan Vikas Patra N.51 CD 925215 dated Miss Vishakha Gupta 10,000.00 08.02.2005 issued by Sub-Post Master, Sowcarpet NDSO, Chennai - 79 8 108 8 Years 7 Months Kisan Vikas Patra N.51 CD 929096 dated 12.04.2005 issued by Sub-Post Master, Sowcarpet NDSO, Chennai - 79 Miss Vishakha Gupta 10,000.00 9 109 8 Years 7 Months Kisan Vikas Patra No.90 BB 770972 dated 18.04.2005 issued by Sub-Post Master, Sowcarpet NDSO, Chennai - 79 Miss Vishakha Gupta 5,000.00 10 110 8 Years 7 Months Kisan Vikas Patra No.90 BB 770973 dated 18.04.2005 issued by Sub-Post Master, Sowcarpet ....
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....000.00 2.(f) The Provisional Attachment Order suffers from serious infirmity. The 3rd and 4th petitioners were never arrayed as accused in any case and they were school going children and now they are studying in college and without considering the same, they have now been summoned to appear before the 1st respondent. The Provisional Attachment Order No.9/2017 relates to the properties possessed or acquired by the petitioners 1 and 2 during the period 1.5.1997 to 30.06.2005 and during such material period the Prevention of Money Laundering Act was not in force. The Prevention of Money Laundering Act, 2002 was came into force only on 1.7.2005. Whereas final report was submitted by CBI on 13.01.2009. Similarly, Prevention of Corruption Act was included in the Scheduled List of Offences only with effect from 01.06.2009 and it can have no retrospective or retroactive operation and any penal action for alleged offences committed prior to the enactment and operation of law is violative of the Article 20 (1) of the Constitution of India. 2.(g) Hence, Challenging the Provisional Attachment Order passed by the 2nd respondent dated 7.4.2017 Criminal Original Petition No.10497 of 20....
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....pecial Public Prosecutor for Enforcement Directorate also relied upon the Judgments reported in 1.Solidaire India Ltd., Vs. Fair Growth [AIR 2001 FC 958 : JT 2001(2) SC 642; MANU/ST/0009/2001], 2.Bank of India vs. Ketan Parekh [2008 (8) SCC 148 : AIR 2008 SC 2361; MANU/SC/2700/2008], 3.Union of India Vs. Hassan Ali Khan and another [C.A.No.1883 of 2011 of Honourable Supreme Court ] and 4.Gokak Patel Volkart Ltd., Vs. Dundayya Gurushiddaiah Hiremath [1991 SCR (1) 396, 1991 SCC (2) 141]. 6. In the light of the above submissions, now the point that arise for consideration in these Criminal Original Petitions is: "whether the order of Provisional Attachment made and the Original Complaint filed before the Adjudicating Authority, under the Prevention of Money Laundering Act, 2002, by the second respondent are in accordance with law or liable to be quashed" 7. It is not disputed that the 1st petitioner was charge sheeted by the CBI, Anti Corruption Branch for the alleged possession of assets and pecuniary resources and the 2nd petitioner was prosecuted for abetment in the above offence. It is also not in dispute that the alleged offences against the petitioners 1 and 2, related ....
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....scheduled offence, as the case may be or a similar report or complaint has been made or filed under the corresponding law of any other country: Provided further that, notwithstanding anything contained in [first proviso], any property of any person may be attached under this section if the Director or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section has reason to believe (the reasons for such belief to be recorded in writing), on the basis of material in his possession, that if such property involved in money-laundering is not attached immediately under this Chapter, the non-attachment of the property is likely to frustrate any proceeding under this Act.] (2) The Director, or any other officer not below the rank of Deputy Director, shall, immediately after attachment 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) very order of attachment made under....
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....ate under section 173 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint has been filed by a person authorised to investigate the offence mentioned in the Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be or a similar report or complaint has been made or filed under the corresponding law of any other country: Provided further that, notwithstanding anything contained in clause (b), any property of any person may be attached under this section if the Director or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section has reason to believe (the reasons for such belief to be recorded in writing), on the basis of material in his possession, that if such property involved in money-laundering is not attached immediately under this Chapter, the non-attachment of the property is likely to frustrate any proceeding under this Act. 9. On a careful perusal of the above section after amendment, makes it clear that even any person having convicted for an offence and any person is in possession of any proceeds of crime, the Director or any other officer not below the rank ....
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....servation) Act, 1980, the Indian Penal Code and the Prevention of Corruption Act, 1988, were included in the PML Act declaring them as scheduled offences only with effect from June 1, 2009. Hence, the Enforcement Directorate Could not have invoked the provisions of the PML Act with retrospective effect. 12. The petitioner cannot be tried and punished for the offences under the PML Act when the offences were not inserted in the schedule of offences under the PML Act. This would deny the writ petitioner the protection provided under Clause (1) of Article 20 of the Constitution of India. Article 20(1) of the Constitution of India prohibits the conviction of a person or his being subjected to penalty for ex-post facto laws. Consequently, the order of attachement is, also, liable to be set aside." 11. In the case of Mahanivesh Oils & Foods Pvt. Ltd., V. Directorate of Enforcement in W.P.(C)1925/ 2014 and C.M.No.4017/2014 the Delhi High Court has held thus: "19. Section 2(u) of the Act defines proceeds of crime and reads as under:- "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....
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..... 29. The Act is a penal statute and, therefore, can have no retrospective or retroactive operation. Article 20(1) of the Constitution of India expressly forbids that no person can be convicted of any offence except for the violation of a law in force at the time of the commission of the act charged as an offence. Further, no person can be inflicted a penalty greater than what could have been inflicted under the law at the time when the offence was committed. Clearly, no proceedings under the Act can be initiated or sustained in respect of an offence, which has been committed prior to the Act coming into force. However, the subject matter of the Act is not a scheduled offence but the offence of money-laundering. Strictly speaking, it cannot be contended that the Act has a retrospective operation because it now enacts that laundering of proceeds of crime committed earlier as an offence. In The Queen v. The Inhabitants of St. Mary, Whitechapel (1848) 12 QB 120, the Court pointed out that "The Statute which in its direct operation of prospective cannot be properly be called a retrospective statute because a part of the requisites for that action is drawn from the time antecedent to i....