TaxTMI 
TaxTMI 
TaxTMI 
2018 (1) TMI 502
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....ment against them, along with enquiry/investigation therein. They also pray for awarding them the compensation for wrongfully resorting to the 2002 Act. 2. Though in each matter an order of attachment under Section 8[5] of the 2002 Act has been passed and that is the cause of action for approaching this Court, challenge thereto is pending before the Appellate Authority. 3. Union of India along with Directorate of Enforcement and its Assistant Director have raised a preliminary objection. They invite attention to judgment dated 13.07.2017, delivered by the Hon'ble Supreme Court in Criminal Appeal No. 1137/2017 (Girish Kumar Suneja .vrs. C.B.I.), and submit that this Court cannot take cognizance, as such controversies are to be looked into by a Special Court constituted for that purpose at Delhi by the Hon'ble Supreme Court. They submit that the Hon'ble Supreme Court has restrained any other Court in India, including any High Court from taking cognizance. They point out that hence, the interim protection given to petitioners by this Court is unwarranted and the same needs to be withdrawn immediately. They also pray for dismissal of Writ Petitions for want of jurisdictio....
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....ther details of the complaint or charge sheet, however, petitioner has submitted that he terminated this agreement and in consideration thereof got Rs. 1.55 Crores. There is reference to statements made by other petitioners in this matter. All petitioners, except Shri Nandkishore Sarda are accused in the matter. 6. In this background learned A.S.G.I. has relied upon judgment dated 13.07.2013, (Girish Kumar Suneja .vrs. C.B.I.), to submit that the Hon'ble Supreme Court is monitoring the investigation in coal block allotment errors and it has directed investigation to be carried out by CBI. He points out how & why the Hon'ble Supreme Court has found it essential, looking to the magnitude of illegalities and prima facie involvement of Director of CBI. The criminality associated with allocation of coal blocks extends also to money laundering matters, and hence, the present Writ Petitions as filed before this Court needs to be dismissed. He has taken us through opening paragraph of the said judgment to explain the background, and then through other paragraphs to demonstrate the concern felt by the Hon'ble Supreme Court and remedial measures mandated by it. 7. He submits th....
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....titioner under Section 44[2] till date. Section 8[5] is also relied upon to show that it envisage orders to be passed at the conclusion of the trial and purpose of attachment to secure recovery. However, in present matter, no offence as yet has been registered under 2002 Act, against petitioners. Action of provisional attachment therefore is erroneous and without jurisdiction. In an attempt to distinguish judgment of Hon'ble Supreme Court in case of Girish Suneja (supra), he submits that petitioners do not seek stay of the trial going on at Delhi or then stay of investigation. The Hon'ble Supreme Court has only found it proper not to create obstacles in pending prosecution or investigation. However, final prayers in relation to either investigation or such prosecution are not prohibited by the Hon'ble Supreme Court and petitioners can very well approach this Court. He therefore, submits that in the face of Article 20[1], as 2002 Act is sought to be artificially enforced retrospectively, petitions need to be allowed. 10. Shri D.V. Chavan, learned counsel for petitioner in Writ Petition No. 343/2017 submits that in view of notification dated 06.03.2009 and Schedule appen....
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.... which may result in frustrating the proceedings relating to its confiscation, such offence by order in writing can provisionally attach such property. Section 5[1] also contemplates that reasons are to be recorded in writing and satisfaction has to be reached on the basis of material in his possession. The provisional attachment can last maximum for 180 days and within 30 days of such attachment, the officer attaching the proceeds provisionally has to file complaint before the adjudicating authority. Section 8[1] (supra) then springs into action. 16. Adequacy or sufficiency or relevance of material or then process of formation of subjective satisfaction by the authority attaching provisionally are not the issues presented to this Court. Section 5[1] does not contemplate provisional attachment only if offence is established i.e. only if person is convicted. It empowers Director to take action against any person who is in possession of any proceeds of crime. Section 8[1] again draws this distinction between person committing offence under section 3 and a person in possession of proceeds of crime. Contention of petitioners that offence is not registered against them under 2002 Act, ....
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.... as offence since the inceptiont (i.e. 17.01.2003) of 2002 Act. Moreover, whether the offence in so far as petitioner in Writ Petition no. 697/2017 is concerned, was completed in 2005 or then before 2009 or then in 2011, are all questions of fact. In this jurisdiction and at this stage we cannot record any finding about it. The investigating agency may unearth some material which may show continued indulgence of petitioners in offence under Section 3 punishable under Section 4, even now. Prima facie Section 3 takes note of various modes and manner in which proceeds of crime can be dealt with. This mode and manner (clandestine operations) therefore, may be continuous one because of undertaking different processes at different times. The person involved in it may not be an offender under IPC. Section 3 speaks of a person who in its absence, could not have been perhaps roped in for said offence or any other offence. Section 5[1][a] speaks of "any person" in possession of any proceeds of crime. Thus, person in possession may not be aware of the character of proceeds in his hand or may not be party to various operations, made offence under Section 3. Attachment of proceeds of crime wher....
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....vention of Corruption Act,1988, Prevention of MoneyLaundering Act, 2002 and other allied offences. 5. We, accordingly, direct the competent authorities to issue requisite notifications appointing Mr. Bharat Prashar, an officer of Delhi Higher Judicial Service as Special Judge for the above purpose. The notifications shall be issued within two weeks from the date of communication of copy of this order. 6. We also order that Mr. R.S. Cheema, senior advocate shall be appointed as Special Public Prosecutor by the Government of India to conduct the prosecution of the offences pertaining to coal block allocation matters on behalf of CBI and Enforcement Directorate. On such appointment, Mr. R.S. Cheema may choose two other advocates, who, in his opinion, will be of assistance in the matter. While doing so, Mr. R.S. Cheema may keep in view the magnitude and complexities of the case. 7. The Special Public Prosecutor shall have access to the entire evidence/material including case diaries collected in the course of investigation. 8. We direct the CBI to render all necessary assistance to the Special Public Prosecutor. 9. All cases pending before different courts in Delhi pertaining to c....
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....o conclude the coal block allocation scam at the earliest. Any application intended to stay or impede that trial, therefore, is to be considered by the Hon'ble Supreme Court only. 24. These observations of Hon'ble Supreme Court therefore, clearly show that all matters which question any such investigation or offence pertaining to coal block allocation and related matters under Indian Penal Code, 1860, Prevention of Corruption Act, 1988, Prevention of Money Laundering Act, 2002 and other allied offences must be looked into by the Hon'ble Supreme Court. 25. Facts of case at hand reveal that provisional attachment order and complaint filed by the Assistant Director, Directorate of Enforcement beyond doubt show the nexus of proceeds of crime with coal block allotment. The contention of enforcement department that it got knowledge of proceeds of crime only through investigation into coal block allotment, cannot be disputed at this stage. The reply on preliminary objection to the maintainability of the petition filed by respondents, shows that on the basis of FIR dated 07.08.2014, CBI, New Delhi registered a case under Section 120B and 420 of Indian Penal Code and a charge ....