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2016 (1) TMI 833 - PUNJAB AND HARYANA HIGH COURT

2016 (1) TMI 833 - PUNJAB AND HARYANA HIGH COURT - TMI - Money Laundering - offenses are bailable or not - whether the offence is cognizable or non-cognizable in view of the amendment made and whether the authorities under the Act have any jurisdiction to investigate into the cognizable offence. - offences under Sections 406, 419, 420, 467, 471, 120B of IPC and under Sectins 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 - Held that:- The first schedule of the Cr.P.C. specifically .....

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cognizable as provided in the Cr.P.C. itself and thus, the first submission raised by counsel for the petitioner is without any basis. - Whether the petitioners have been prejudiced - Held that:- It is not disputed that the summons issued to the petitioners which are subject matter of challenge are as per Form V. The petitioner has not challenged any of the rules or the sections of the Act and neither any challenge has been raised to the vires of the Act that it is violative of any procedur .....

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he advocate while recording statements thus is the only issue left for consideration in view of the above discussion. It is to be noticed that counsel for the respondent, vide order dated 19.03.2015, had undertaken that on the petitioners joining the investigation, they would have no objection to the interrogation/examination being videographed and necessary arrangements would be made for the same. - Petition dismissed - Decided against the petitioner. - CWP No. 3317 of 2015(O&M), CWP No.3314 of .....

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ictate orders, facts have been taken from CWP No.3317 of 2015 titled Karam Singh & others Vs. Union of India & others. 2. Challenge in the present writ petition, as per the amended primary prayer, is to the ECIR No.CDZO/05 dated 25/03/2013 (Annexure P37), vide which, the Assistant Director of the Directorate of Enforcement (for short the ED ) has registered a case under Sections 3 & 4 of the Prevention of the Money Laundering Act, 2002 (for short, the PMLA ). The ancillary challenge .....

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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) Chandigar .....

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orney of Harnek Singh was forged. The said power of attorney had been used for execution of sale deed in collusion with Mr.G.S.Sawhney, who was representing Mr.Tara Singh in a suit for specific performance and the trial of the said case was pending in the Court of the Sessions Judge, Chandigarh. The ECIR (Annexure P37) in question was registered and the petitioners were nowhere connected or involved and associated with the said FIR. Petitioner No.1 was doing his business at Gobindgarh and on 13. .....

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and was involved in the business of construction and he was also a client of Mr.Mukesh Mittal and knows him for the last several years and had also filed an application for anticipatory bail, which is pending before the Court of Sessions Judge, Chandigarh and he had also been summoned vide various summons (Annexures P8 to P15). Petitioner No.4 is alleged to be working in the office of Mr.Mukesh Mittal and he has also filed an application for anticipatory bail whereas petitioner No.5, Mr. Vineet .....

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s two sons but he had also been summoned. Petitioner No.8 is a practising Advocate since 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 regi .....

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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, the procedure being followed by the respondents was without jurisdiction and they had no power to investigate without following the procedure prescribed under the Code of Criminal Procedure. The rights of th .....

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iled on behalf of the respondents, it is pleaded that after the lodging of FIR No.4 dated 22.07.2009 against the main accused therein, against whom charges have been framed, the present ECIR No.5 had been lodged to investigate in the offences of money laundering as the offences under Sections 406, 419, 420, 467, 471, 120B of IPC and under Sectins 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 were covered under the Schedule to PMLA. On the basis of the material and reasons to belie .....

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others were jointly and severally along with other shell companies, found to be indulging in all the activities relating to money laundering. The bank account of the petitioner No.3, Lal Chand, who happens to be a driver, showed that 22 crores had been deposited/transferred to some other account/shell companies and he was not a beneficiary of any amount and was not doing any activities of trade, manufacturing, financing etc., as per the scrutiny of his Income Tax Returns for the past 5 years. T .....

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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 .....

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including bank accounts, documents received from the ROC, Estate Office and Income Tax Department and materials seized during the course of the search. The investigation had been conducted under the provisions of the PMLA in view of the crime mentioned in the FIR No.4. Another FIR No.5 dated 13.06.2012 under Section 406, 424, 467, 468, 120B had been registered at Police Station (Vigilance) Chandigarh against Ajay Singh, petitioner in CWP No.1418 of 2015, for cheating the share-holders of the com .....

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accordingly, been summoned to show the source of the cash payment. Petitioner No.3 was a co-sharer in one bigha of land in Himachal Pradesh and was working as a Driver. He had filed an application for anticipatory bail which was withdrawn from the Court of Special Judge, Chandigarh. Despite the summons issued to him, he had not appeared before the ED and was delaying the investigation on one pretext or the other and he had been holding benami properties. Petitioner No.4 was stated to have been u .....

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s issued and neither petitioner No.7 was appearing to explain regarding the recovery of the huge incriminating documents and the source of property in the names of his sons. Petitioner No.8 was stated to be a practising Lawyer and had signed most of the documents prepared in the office 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 t .....

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e, 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 properties w .....

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atute and therefore, the jurisdiction of the authorities was, accordingly, justified. 11. The ECIR was registered which was only for internal purposes to start investigation and the petitioners were not cooperating in the investigation inspite of summons having been issued. The freezing of the bank accounts of respondents No.3 to 6 was legal and intimation had been sent to the competent authorities as required under Section 17, who had issued show cause notice to the petitioners. Petitioner No.1 .....

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on filed, plea taken was that the offences had been reduced to a non-cognizable offence and in the absence of any complaint filed, the authorization of the officers was without jurisdiction. The Special Court had not taken cognizance and as per Section 65, the investigation procedure must comply with the mandate of the Cr.P.C. The bail applications had been withdrawn only due to the pendency of the writ petitions. It was pleaded that neither the petitioners nor Mr.Mukesh Mittal were accused in t .....

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garh. 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 .....

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he Code of Criminal Procedure, 1973 (in short Cr.P.C.) to submit that without the order of the Magistrate, investigation cannot be done and, therefore, the lodging of the ECIR dated 25/26.03.2013 (Annexure P-37) has been challenged. It is submitted that since the Cr.P.C. is the parent Act for the purpose of arrest, search, seizure and investigation and without having taken any such permissions from the Competent Court, the officials are acting without jurisdiction. Thus, the said ECIR is liable .....

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Act could not treat the noncognizable offence as a cognizable offence and the procedure would be void and proceedings are liable to be quashed. Reliance is accordingly placed upon the judgment of the Apex Court in State of Haryana vs. Bhajan Lal, AIR 1992 SC 604 (1) and reference was accordingly made to the principle no. 4 to submit that no investigation is permitted by the officials of the E.D. since the offence was not cognizable. Reliance was also placed upon the judgment of the Apex Court in .....

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that the Cr.P.C. applies and the safeguards have been provided under the same which are being openly violated since neither any case diaries have been maintained which the Court can summon and, therefore, no judicial check is in place against the officials of the respondent-E.D. In view of such procedure not being followed, the right of the anticipatory bail has also been denied as copies of documents etc. are not readily available. Accordingly, reliance is placed upon the judgment of the Apex .....

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ence 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 pre .....

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ctions 46 and 65 to submit that the provisions of the Cr.P.C. would apply in so far as they were not inconsistent with the provisions of PMLA. Reference was made to Section 44 to submit that only a Special Court, upon a complaint, could take cognizance upon Sections 44 and 45 and that also upon a complaint in writing by the Director or any officer of the Central Government or State Government authorized in writing in that behalf by the State Government by general or special order. Section 48 was .....

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ffences for which trial was going on. It was submitted that the investigation was at a nascent stage and this Court would not nip the same in the bud by permitting it to come to a grinding halt at the instance of the petitioners. It was argued that the petitioners were defending the cause of the main accused who had floated the shell companies, details of which were given and who were prima facie involved in the offence of money laundering. The petitioners were closely associated with the main a .....

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nless specifically authorized by the Central Government by general or special order 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 l .....

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ons, 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 to the forms and the manner of the arrest which could be made under Section 19 and the liability to produce before the Magistrate within 24 hours under Sub-clause 3 while forwarding the copy of the order of the arrest .....

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Psychotropic Substances Act, 1995, income tax authorities, officers of the police etc. were required to assist the authorities and the Act was notified for the purpose of obviating threats to the financial system of the countries and also to the integrity and sovereignty of the country. 18. The case was reserved on 17.07.2015 for judgment and thereafter, an application was made on behalf of the petitioners for further hearing, which was allowed. During the course of this hearing, Mr. Chaudhary i .....

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t would be necessary to refer to the relevant provisions of the Act. The offence of money laundering as defined under Section 3 is directed against the proceeds of crime and is admittedly punishable with not less than 3 years which may extend to 7 years under Section 4. Money laundering has been defined under Section 2(p) and 2(u) and Section 3. The proceeds of crime as per Section 2(u) pertain to any property derived, obtained directly or indirectly, as a result of criminal activity by any pers .....

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o 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-l .....

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. Under Section 2(na), investigation for all the proceedings under the Act are to be conducted by the Director or any authority authorized by the Central Government for collection of evidence. The said Section reads thus:- 2(na) investigation includes all the proceedings under this Act conducted by the Director or by an authority authorised by the Central Government under this Act for the collection of evidence; 21. Under Section 49, the power of the Central Government is there to appoint such p .....

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ains to summons, searches and seizures, gives the power of survey to an authority on the basis of the material in its possession on reasons to believe (reasons for such belief to be recorded in writing) that an offence under Section 3 has been committed. The search and seizure can be conducted by the said authorities on the basis of information in possession and on the reason to believe and such belief is to be recorded in writing that the act of money laundering has been committed or a person i .....

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the search of persons and Section 19 provides power of arrest again on the reason to believe which have to be recorded in writing on the basis of the material in possession. The said reasons thereafter have to be forwarded to the adjudicating 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, Ass .....

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tely 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-four hours, be taken to a Judicial Magistrate or a Metropolitan Magistrate, .....

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n or continuation of freezing of such property beyond the said period. Section 24 further provides that in the proceedings relating to the proceeds of crime, burden of proof would be upon the person charged with the offence of money laundering under Section 3 and the Court is to presume that the proceeds of crime are involved in money laundering. 24. Chapter III, on the other hand, deals with the attachment, adjudication and confiscation of the attachment of properties to which an ancillary chal .....

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e Sessions Court, Chandigarh in FIR No. 4 against the accused in that case. Section 6 further provides that an adjudicating authority shall be appointed by the Central Government, who shall consist of a Chairperson and two other Members. The case of the respondents is that notice has already been issued by the Adjudicating Authority to the petitioners on account of the freezing of the accounts and seizing of the records. Procedure is provided under Section 8 pertaining to the adjudication to be .....

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thers 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 .....

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iew of the amendment made and whether the authorities under the Act have any jurisdiction to investigate into the cognizable offence. 27. Section 45 of the Act, as it originally was and thereafter amended reads thus:- 28. The amended provisions specifically provide that no person accused of an offence punishable for a term of imprisonment for more than 3 years under Part A of the Schedule shall be released on bail on his own bond unless the public prosecutor is given an opportunity to oppose the .....

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y of accused and the Court has to comply with certain conditions while deciding their bail application. In the present case, the petitioners are not accused of the said offence but are being investigated for the offence of money laundering under Section 3. Section 4, as noticed above, provides that the punishment for the offence of money laundering shall not be less than 3 years but which may extend to 7 years. The first schedule of the Cr.P.C. specifically provides the classification of offence .....

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th death, imprisonment for life, or imprisonment for more than 7 years Cognizable Non-bailable Court of Session If punishable with imprisonment for 3 years, and upwards but not more than 7 years Cognizable Non-bailable Magistrate of the first class If punishable with imprisonment for less than 3 years or with fine only Non-cognizable Bailable Any Magistrate 30. Thus, the argument which is being sought to be raised by learned counsel for the petitioner that the offences are now only bailable in v .....

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d 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 inve .....

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holders of the said accounts which have been detailed in paragraph no. 15. It has already been noticed that there are serious allegations of money laundering and incriminating documents including 214 blank signed cheques relating to several shell companies without any business activity but having heavy financial dealings which have been unearthed by the investigating agencies in pursuance of the investigation carried out under the provisions of the Act. 33. As noticed, the punishment is not les .....

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mplaint can be filed by the authority made by the authorized officer and the police officer is not to investigate. The Act was a special Statute in which there was no police report which has to be filed and only a complaint could be filed after completion of investigation by the authorized authority on the basis of which cognizance could be taken. The relevant observations read thus:- 12. From reading the Act as a whole it is manifestly clear that the Prevention of Money Laundering Act being a s .....

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nizance 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-ridin .....

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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 investigation includes all the proceedings under the Act conducted by the Director or by an authority authorized by the Central Government under the Act for the collection of evidence. 14. The provision contained in Sections 44 and 45 of the Act prohibits taking of cognizance except on a complaint made by the appropriate authority who .....

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arrest. We are in consonance with the view taken above by the Jharkhand High Court that the right to investigate under the Act is very much part of the scheme of the Act. The argument that the offence is a noncognizable offence and bailable as defined under Section 2(l) of Cr.P.C. thus, cannot be accepted. 36. As noticed, Section 65 of the Act specifically provides that the provisions of the Cr.P.C. are only to apply in so far as they are not inconsistent with the provisions of the PMLA, 2002. .....

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anything inconsistent herewith contained in any other law for the time being in force. Section 71 of PMLA reads thus:- 71. Act to have overriding effect.-The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. 38. Sections 44 and 46 read together would go on to show that a complaint has to be made by the authorities before the Special Court by the authority authorized and the Special Court can take cogn .....

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all 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 cognizan .....

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the offence of moneylaundering shall hold trial in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), as it applies to a trial before a Court of Session.] (2) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 (2 of 1974) and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the .....

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to be a Court of Session and the persons conducting the prosecution before the Special Court, shall be deemed to be a Public Prosecutor: Provided that the Central Government may also appoint for any case or class or group of cases a Special Public Prosecutor. (2) A person shall not be qualified to be appointed as a Public Prosecutor or a Special Public Prosecutor under this section unless he has been in practice as an Advocate for not less than seven years, under the Union or a State, requiring .....

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he Central Government after consultation with the Chief Justice of this Court. Thus, it is apparent that the offence under 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. woul .....

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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 into the matters under Section 45(1A) except with special authorization of the Central Government. Similarly, reference to Section 157 which provides the procedure for investigation .....

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ng the offences so that the procedure under Cr.P.C. has to be followed. 40. The provisions of the Act have already been discussed in detail above which provide that the offences are punishable with not less than 3 years and can go upto 7 years alongwith attachment and confiscation of the properties. The Special Court constituted by the Central Government which is duly notified is to take cognizance of the offences on the complaint filed by the authorities and which is to be tried by the Sessions .....

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caused once the investigation was being done into the offences of money laundering and, therefore, keeping in view the purpose of the Act, it would be not possible to hold that the jurisdiction being exercised by the authorities was without any basis. 42. The argument of Mr. Vikram Chaudhary thus that there is an implied repeal in view of the amendment and the offence under Sections 3 and 4 is non-cognizable and also bailable as per the amended Section 45 is untenable. The said section only pro .....

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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 t .....

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is tendered. The submission is that a reading of the provisions of the Act clearly shows that the power as contained in Section 308 of the Code to punish the accomplice for violation of the terms and conditions of the pardon has not been conferred on the Special Court and, therefore, it is evident that the power to tender pardon has also not been conferred on that court. Counsel submits that for deciding these matters the paramount question one is required to ask himself is why provisions simila .....

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nvoke the doctrine of implied repeal. Pointing out that the Code is a general law and the Act - a special later enactment, Section 13 whereof shows its predominance and superiority, this Court should not have any reluctance to accept the applicability of doctrine of implied repeal in these matters, was the submission of learned counsel though he, very fairly and rightly, conceded that there is a presumption against a repeal by implication. The reason for the presumption as aforesaid is that the .....

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are contrary to those of the earlier (the Code), the later by implication repeals the earlier in accordance with the maxim leges posteriores priores contrerios abrogant (later laws abrogate earlier contrary laws). This is, however, subject to the exception embodied in the maxim generatia specialitous non 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 irreconcila .....

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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 .....

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rue the Act in a manner which will make Sections 306 and 307 or at least part of the said sections otiose and thereby defeat the legislative intendment whatever be the consequences of such an interpretation. 44. That if the argument of Mr. Chaudhary is to be accepted then Section 19 which pertains to the power of arrest would be rendered a dead letter on the Statute book if the offence under Section 3 is to be treated as non-cognizable and bailable, as argued by him. 45. Reference to the judgmen .....

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d apply relating to searches and arrests. It was in such circumstances, the Apex Court held that the offences are bailable in nature. In the present case, as noticed, Section 4 provides for punishment for more than 3 years and thus offences would be cognizable as provided in the Cr.P.C. itself and thus, the first submission raised by counsel for the petitioner is without any basis. 46. Similarly, reliance upon the judgment in Bhajan Lal s case (supra) would not be applicable in view of the findi .....

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. 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 .....

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inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences 5. Saving Nothing contained in this Code shall, in the absence of a specific provision to the .....

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could be further detained under Section 167(2) of Cr.P.C. Accordingly, it was held that the provisions of Section 167(1) and (2) were applicable with regard to the production or detention of person arrested and the Magistrate could commit to custody a person taken from him or the customs officer. The power of investigation rather was held not only with the police officers but by the prosecuting agency who was invested with the power of investigation. The relevant observations read thus:- 104. I .....

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ditions contained therein and that consequent upon such replacement of sub-section (1) of Section 167, the arrested person under those special Acts would be an accused person to be detained by the Magistrate under subsection (2) of Section 167. In passing, it may be stated that there is no expression police officer deployed in Section 167(1) nor does it appear in any part of Section 167 (2). The authority for detaining a person as contemplated under Section 167(2) is in aid of investigation to b .....

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e 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. A .....

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be a police officer or empowered or authorised officer or a person not being a police officer under the direction of a Magistrate to make an investigation vested with the power of investigation. 49. Similarly, it was held that provisions of Section 167(2) would be applicable as the operation of Section 4(2) Cr.P.C. was applicable if there was no specific provision contrary to that excluding operation of Section 167(2). The above observations, thus, would be squarely applicable in the case of the .....

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The Railways Property (Unlawful Possession) Act, 1966 which provided that the power of investigation was with other officers but there was no power to file a final report and the offences were to be taken cognizance by Special Courts on a complaint being filed. There are similar provisions under the Fertilizer Control Order and the Drugs and Cosmetics Act, 1940 whereby, investigation is done initially by the authorized officers and thereafter complaints are filed in the Special Courts and, ther .....

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eport could have been filed due to the investigation conducted was rejected. 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 c .....

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rily 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 a well-settled principle of law that if a special statute lays down procedures, the ones laid down under the general statutes shall not be followed. In a situation of this nature, the respondent could carry out investigations in exercis .....

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the Code. Ordinarily, thus, although in terms of the Code, the respondent upon completion of investigation and upon obtaining remand of the accused from time to time, was required to file a police report, it was precluded from doing so by reason of the provisions contained in Section 22 of TOHO. To put it differently, upon completion of the investigation, an authorized officer could only file a complaint and not a police report, as a specific bar has been created by the Parliament. In that view .....

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ed in Section 22 of TOHO. 52. A Division Bench of this Court in Naveed Masih vs. State of Punjab, 2014 (1) RCR (Criminal) 56 also rejected a similar contention raised while placing reliance upon the judgment of the Apex Court in Deepak Mahajan s case (supra) itself. The submission that the Narcotics Control Bureau (for short NCB ) could not file a complaint in the Court of the Special Judge and the procedure under Chapter XII of the Cr.P.C. had to be followed was rejected by holding that the emp .....

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he 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 .....

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inating with the filing of a police report and also proceedings to be initiated on the basis of a complaint by an empowered Officer in terms of Chapter XV of the Code. Therefore, when a police in terms of Code investigates into an offence including an offence under the Act, it files a report under Section 173 of the Code, whereas the investigation by an empowered officer under the Act leads to filing of a complaint in terms of Section 190 of the Code. 40. Thus, the argument that the statements o .....

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ict a witness while stepping into witness-box. But it is not necessary for the empowered Officer to record statements of the witnesses contemplated under Section 161 of the Code, as such statements can be recorded only by a Police Officer during the course of investigation. In the present case, the empowered Officer produced a list of 40 documents sought to be relied upon to prove the charges against the appellants including the statements recorded under Section 67 of the Act as well furnished l .....

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erefore, we do not find any merit in the argument that the empowered officers of the NCB under the Act are the police officers and are bound to carry investigations under the Act in accordance with Chapter XII of the Code after lodging of an FIR. 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 t .....

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izing 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;] (m) the rules relating to search and seizure under sub-section (1) .....

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Prevention of Money-Laundering (The Manner of Forwarding a Copy of the Order of Provisional Attachment of Property alongwith the Material, and Copy of the Reasons alongwith the Material in Respect of Survey, to the Adjudicating Authority and its Period of Retention) Rules, 2005. B. The Prevention of Money-Laundering (Receipt and Management of Consfiscated Properties) Rules, 2005. C. The Prevention of Money-Laundering (Maintenance of Records, 2005. D The Prevention of Money-Laundering (Forms, Se .....

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f Seized Property Along With the Material to the Adjudicating Authority and the Period of its Retention), Rules, 2005 G The Prevention of Money-Laundering (Manner of Receiving the Records Authenticated Outside India) Rules, 2005 H The Prevention of Money-Laundering (Appeal) Rules, 2005 I The Adjudicating Authority (Procedure) Regulations, 2013 J The Prevention of Money-Laundering (Issuance of Provisional Attachment Order) Rules, 2013 K The Prevention of Money-Laundering (Taking Possession of Att .....

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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 .....

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............... WHEREAS I....................................................................Director or Additional Director or Joint Director or Deputy Director or Assistant Director, am making investigation under the provisions of the Prevention of Money-laundering Act, 2002 (15 of 2003). AND WHEREAS, I consider the attendance of........................................................ [name of the person summoned and his address] necessary in connection with the said investigations. NOW, THERE .....

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............... two thousand................. Summoning Officer ................................... Name and complete address Seal To ..................................... .................................... .................................... (Name of the person summoned and his address] Note.-1. Every proceeding under sub-section (2) and sub-section (3) of section 50 of the Prevention of Money-laundering Act, 2002 shall be deemed to be a judicial proceeding within the meaning of section 193 .....

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her any challenge has been raised to the vires of the Act that it is violative of any procedure and that his fundamental rights under the Constitution are infringed. Thus, it is apparent that it is in pursuance of the statutory powers, the authorities have issued summons. 57. Similarly, under rule mentioned at Sr. No. E pertaining to the Prevention of Money-Laundering (The Forms and the Manner of Forwarding a Copy of Order of Arrest of a Person Along With the Material to the Adjudicating Authori .....

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wers 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 Of .....

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nvelope inside an outer envelope, along with an acknowledgement slip in Form II appended to these rules. (6) The outer envelope shall be sealed and complete address of the Adjudicating Authority shall be mentioned on the sealed outer envelope. (7) The Arresting Officer shall maintain registers and other records such as acknowledgement slip register, dak register for the purposes of this rule and shall ensure that necessary entries are made in the register immediately as soon the copy of the orde .....

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ence punishable under the provisions of the Prevention of Moneylaundering Act, 2002 (15 of 2003); NOW, THEREFORE, in exercise of the powers conferred on me under subsection (1) ofNOW, THEREFORE, in exercise of the powers conferred on me under subsection (1) of section 19 of the Prevention of Money-laundering Act, 2002 (15 of 2003), I hereby arrest the said .............................................. [name of the person arrested] at................ hours on .................. and he has been i .....

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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 .....

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n Lalitha Kumari s case (supra) would not be applicable to the facts and circumstances of the case as the issue therein was pertaining to the non-lodging of the FIRs by the police authorities, in spite of the fact that in Cr.P.C., it is clearly provided that it was mandatory to register an FIR before an investigation was conducted. 60. The Apex Court in State of U.P. vs. Singhara Singh, AIR 1964 SC 358 held that it would be an unnatural construction to hold that any other procedure was permitted .....

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ed to judicial officers making a record under Section 164 and, therefore, held that the Magistrate could not give oral evidence of the confession made to him which he had purported to record under Section 164 of the Code. It was said that otherwise all the precautions and safeguards laid down in Sections 164 and 364, both of which had to be read together, would become of such trifling value as to be almost idle and that it would be an unnatural construction to hold that any other procedure was p .....

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tiation of proceedings before a Special Judge and therefore cognizance of an offence cannot be taken except upon a police report, does not commend to us and has no foundation in law, it is unnecessary to refer to the long line of decisions commencing from Taylor v. Taylor (1876) 1 Ch.D 426; Nazir Ahmad v. King-Emperor AIR 1936 PC 253 and ending with Chettiam Veettil Ammad v. Taluk Land Board Air 1979 SC 1573, laying down hitherto uncontroverted legal principle that where a statute requires to do .....

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ade 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 .....

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ndi. An interim order which does not finally and conclusively decide an issue cannot be a precedent. Any reasons assigned in support of such non-final interim order containing prima facie findings, are only tentative. Any interim directions issued on the basis of such prima facie findings are temporary arrangements to preserve the status quo till the matter is finally decided, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing. 22. The observ .....

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