TaxTMI 
TaxTMI 
2025 (8) TMI 502
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....eduled offence by NIA and Customs Department based on the seizure of 30.245 Kg gold by Customs (Preventive) at Trivandrum International Airport from Diplomatic Baggage of UAE, Consulate at Trivandrum. After the investigation, NIA Kochi filed a charge sheet under section 173(2) CrPC against Sh. Sarith P.S. and others on 05.01.2021 before NIA Special Court, Ernakulam, Kerala. The Custom Commissioner (Preventive) Kochi registered OR No. 07/2020 against Sh. Sarith P.S. and others relating to seizure of 30.245 kg gold worth of Rs. 14.82 crores. 3. The Enforcement Directorate caused an investigation after recording the ECIR. It was found that 167.073 kg gold of Rs. 61,31,96,285/- was smuggled which include 30.245 kg gold seized on 05.07.2020. 4. The appellants were found involved in commission of the offence of smuggling of gold and accordingly provisional attachment order was passed and has been confirmed by the Adjudicating Authority and retention order was also passed. 5. Aggrieved by the orders, the appellants have filed these appeals. Arguments of the learned counsel for the appellants 6. The learned counsel submitted that appellant Aboobacker Pazhedath is one of the ....
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....of Sh. Saidalvi for purchase of gold. It is alleged that a person of Sh. Saidalvi gave 3 kg of gold on the payment of the aforesaid amount. It was sold by the appellant and the sale proceed was used for purchasing 3 kg of gold again. The gold was sold again and the sale proceed was again used for purchasing 3 kg of gold. The investment was only of Rs. 1.25 crore but rotated for purchase of gold time and again and accordingly 30.245 kg of gold said to have smuggled. It could not have been beyond 3 kg and for a sum of Rs. 1.25 crore and otherwise even the amount aforesaid could not have been subjected to any proceeding having being involved for purchase of gold genuinely. The transactions have been multiplied by the respondent without any reason and on the aforesaid ground also, the impugned order deserves to be set aside. 13. The counsel further submitted that appellant has been implicated without any reason. He neither collected gold nor sold it to anyone rather, it was allegedly carried by Hamzath Abdul Salam and Sh. Saidalvi. 14. In view of the above, impugned order qua the appellant deserves to be set aside. 15. The learned counsel for the appellant further submitted th....
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....Unlawful Activities (Prevention) Act, 1967. On January 5, 2021, based on their investigations, the NIA Kochi filed a charge sheet (No. 01/2021) under section 173(2) of the Cr.PC, 1973, against Shri Sarith P.S. and others before the NIA Special Court for trial of NIA. 20. The Customs (Preventive), Cochin also issued Show Cause Notice and filed a complaint under sections 190 and 200 of the Cr.PC read with sections 132 and 135 of the Customs Act, 1962, and section 120-B of the IPC against Shri Sarith P.S. and others before the Additional Chief Judicial Magistrate Court (Economic Offences), Ernakulam. The complaint reveals that the accused persons, including Smt. Swapna Prabha, Shri Sarith P.S. Sandeep HN, and Ramees KT played a central role in masterminding and carrying out the Smuggling operations. They enticed the other co-accused individuals, such as Mohammed Shafi P, Jalal A.M. Rabins Hameed, Saidalavi, Samju T.M. Shamshudeen, Abdu PT Hamjad Ali K, Abdul Hameed P.M., Aboobacker Pazhedath, Hamzath AM, Jifsal C.V. Mohammed Abdu Shameem, Mohammed Aslam and Ulas Kurup, to join their smuggling network alongwith Mohammed Anwar, TM Mohammed Ali, Sharafudheen. K.T. Mohammed Shafeeque A....
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....2020. 23. The appellant Aboobacker under the instructions of Shri Saidalavi based in Dubai, handed over 1.25 crore to Shri Hamzath Abdul Salam @ Pullara Kunjumon of Manjeri for the purpose of purchasing gold. On 24.06.2020, 3 kg of gold was smuggled to Trivandrum via diplomatic baggage of the UAE Consulate. The consignment was received at Trivandrum by an associate of Shri Saidalavi. The smuggled gold was subsequently sold and the proceeds were utilized to purchase another 3 kg of gold in Dubai. 24. This cycle of smuggling and resale was repeated on 28.06.2020 using the diplomatic baggage channel. Aboobacker admitted that 03 kg of gold smuggled through this method was part of the 30 kg consignment seized on 05.07.2020. In the statement under section 5(2) of the Act of 2002, he admitted the smuggling of 9 Kg of gold on three separate occasions. The entire operation was facilitated and directed by Shri Saidalavi who assured Aboobacker that smuggling through diplomatic baggage is safe and that all responsibilities rested with Saidalavi. Proceeds Of Crime 25. The investigation under the provisions of PMLA, 2002 revealed that K T Ramees, Saidalavi E, Mohammed Shafi P. Jalal ....
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....te offence. In the instant case, the calculation of remaining PAO is as follows: Total proceeds of crime for 167.73 kgs of gold (as per the valuation done by the Customs) Rs. 61,31,96,285.00 Properties attached in PAO No. 01/K.CZO/2020 dated 23.12.2020 Rs.1,85,31,937.99 Properties attached in PAO No. 05/2021/K.CZO dated 15.09.2021 Rs. 14,82,00,010.00 Remaining POC to be attached Rs.44,64,64,337.01 Value of properties identified and attached in this. Rs. 4,64,57,195.00 29. The movable and immovable properties of Rs. 4,64,57,195/- (Rs. Four crore sixty-four lakhs fifty-seven thousand and one hundred ninety-five only) which has been identified as on date are attached on the strength of "value of any such property or equivalent value thereof". Role Of Aboobacker Pazhedath: 30. Aboobacker Pazhedath joined the smuggling racket through Shri Saidalavi. He arranged to collect the smuggled gold, sell it and re-invest the sale proceeds. Shri Aboobacker Pazhedath financed gold smuggling to India. He had invested for the gold smuggling and knowingly colluded with the smuggling syndicate resulting in the smuggling of 6 Kgs. of gold valued at Rs.2,03,90,400/....
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....formed to him that gold smuggling through this way is safe and complete responsibilities are pertaining with Saidalavi. 33. Further statement of Shri Aboobacker Pazhedath was recorded w/s 50 (2) & (3) of PMLA, 2002 on 27.08.2021 wherein he inter-alia stated that he gave his statement u/s 50 (2) & (3) on 16.08.2021 and he confirmed it as true and correct. Reasons To Believe: 34. During the course of investigation, the digital evidence gathered were confronted to Shri K. T Ramees. In his statements recorded under Section 50 of PMLA, 2002, he had explained the entire modus operandi of smuggling gold through the diplomatic channel of UAE Consulate Trivandrum. 35. Further, Shri Ramees revealed about the persons involved in the process of collecting money for the smuggling activity, sending the money back to UAE via parallel channels for procuring gold, concealing the gold in various goods and receiving it via diplomatic channels in India. Subsequent to the receipt of smuggled gold via diplomatic channels, Ramees mentioned about the persons involved in transporting the same to extract the gold from the goods, moving the extracted gold to the investors and further to the next ....
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....- Total Rs. 2,03,90,394/- 39. Accordingly, the appellant committed the offence of money laundering under Section 3 of the PMLA, 2002, which is punishable under Section 4 of the said Act. The prayer was made to dismiss the appeal. Finding of the Tribunal 40. It is a case where the smuggled gold weighing 30.245 kg was recovered by customs on 05.07.2020 at International Airport, Kochi from the diplomatic baggage of the Consulate of UAE. During the investigation under the Act of 2002, the appellants were found involved in criminal activity of gold smuggling and had generated proceeds of crime. It has been corroborated by the statement under section 50(2) of PMLA Act of 2002. Sh. Aboobacker Pazhedath in his statement admitted that out of 30 kg gold smuggled through diplomatic baggage of UAE Consulate, 3 kg smuggled gold was belonging to him. The appellant further admitted that he had earlier smuggled 09 kg gold in the similar manner using diplomatic baggage of UAE Consulate. The earlier smuggled gold was consumed in his regular business. The appellant further stated that the amount for buying the smuggled gold was raised from his business fir....
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....tted before the same had been notified as scheduled offence for the purpose of the 2002 Act, but if a person has indulged in or continues to indulge directly or indirectly in dealing with proceeds of crime, derived or obtained from such criminal activity even after it has been notified as scheduled offence, may be liable to be prosecuted for offence of money-laundering under the 2002 Act - for continuing to possess or conceal the proceeds of crime (fully or in part) or retaining possession thereof or uses it in trenches until fully exhausted. The offence of money-laundering is not dependent on or linked to the date on which the scheduled offence or if we may say so the predicate offence has been committed. The relevant date is the date on which the person indulges in the process or activity connected with such proceeds of crime. These ingredients are intrinsic in the original provision (Section 3, as amended until 2013 and were in force till 31.7.2019); and the same has been merely explained and clarified by way of Explanation vide Finance (No.2) Act, 2019. Thus understood, inclusion of Clause (ii) in Explanation inserted in 2019 is of no consequence as it does not alter or enlarge....