TaxTMI 
TaxTMI 
2017 (8) TMI 135
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....s an Appraiser in the Customs House, Chennai, 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/....
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....ss Vishakha Gupta 33,000.00 3 87 STDR No.356493 Dated 26.12.2003 maturing on 26.12.2006 at SBI, Kodambakkam Branch Smt. Veenita 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.....
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....loni Gupta 10,000.00 9 111 8 Years 7 Months Kisan Vikas Patra No.90 BB 770974 dated 18.04.2005 issued by Sub-Post Master, Sowcarpet NDSO, Chennai - 79 Miss Saloni Gupta 5,000.00 10 112 8 Years 7 Months Kisan Vikas Patra No.90 BB 770975 dated 18.04.2005 issued by Sub-Post Master, Sowcarpet NDSO, Chennai - 79 Miss Saloni Gupta 5,000.00 11 130 Amount in PPF A/c.No.01P00900382 at SBI, Anna Nagar West Branch as on 30.06.2005 Miss Saloni Gupta 80,000.00 Total 2,62,000.00 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 Launder....
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....achment is passed, the petitioner has to appear before the Adjudicating Authority and not before this Court for quashing the entire proceedings and though in the Schedule of offences the Prevention of Corruption Act was included later, Money Laundering offence is continuous one and retrospective effect can be given to the Act. Hence, the learned Special Public Prosecutor submitted that the petitions for quashing Original Complaint and also for quashing the Provisional Attachment Order of the second respondent are not maintainable and both the petitions are liable to be dismissed. The Learned Special 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 ....
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....ation of such proceeds of crime under this Chapter, he may, by order in writing, provisionally attach such property for a period not exceeding one hundred and eighty days from the date of the order, in such manner as may be prescribed: Provided that no such order of attachment shall be made unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate 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 [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-lau....
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....terial 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 in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime under this Chapter, he may, by order in writing, provisionally attach such property for a period not exceeding one hundred and eighty days from the date of the order, in such manner as may be prescribed. Provided that no such order of attachment shall be made unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate 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 office....
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.... can be seen from the records that all the offences allegedly committed by the writ petitioner were earlier to the insertion of the provision in the schedule of the Prevention of Money Laundering (Amendment) Act, 2009 and as such, they have no application. 11. Therefore, the Enforcement Case Information Report and the order of attachment are without jurisdiction and are liable to be quashed. As we have, already, held that the writ petitioner cannot be prosecuted for the offences alleged, as they are not the scheduled offences under the PML Act. Those offences under the Mines and Geology (Development and Regulation) Act, 1957, the Forest (Conservation) 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 (....
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....s in relation to a schedule offence a report has been forwarded to a Magistrate under Section 173 of the Code of Criminal Procedure, 1973 or a complaint has been filed by a person authorised to investigate the scheduled offence before a Magistrate or Court for taking cognizance of the scheduled offence. Thus, in cases where the scheduled offence is itself negated, the fundamental premise of continuing any proceedings under the Act also vanishes. Such cases where it is conclusively held that a commission of a scheduled offence is not established and such decision has attained finality pose no difficulty; in such cases, the proceedings under the Act would fail. 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....
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....he charge sheet of the CBI, who have not conducted any enquiry on their own. In fact, all the documents are original documents of the alleged proceeds of crime, which are in the custody of the CBI Court. When the entire documents are in the custody of the Court, there cannot be any reason to believe that the properties will be dealt with in any other manner. The impugned order was as if 1st petitioner not able to offer any satisfactory explanation during examination. Therefore, the attachment officer has passed an order without a reason to believe that the proceeds of crime are likely to be transferred or disposal. In the absence of any sufficient reason, arriving to such conclusion by mere reproducing the words reason to believe it cannot be stated that the order has been passed after considering the entire gamut of materials. Admittedly, in this case, entire documents are available and the properties are in the custody of the court. Therefore, the order of attachment is not maintainable. 13. Similarly, the charge sheet was filed on 13.1.2009 under Section 13 of Prevention of Corruption Act, but this section was included in the list of Scheduled Offences under Prevention of Mon....