TMI Blog2013 (12) TMI 1588X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the person who has committed crime under Section-3 of PMLA and that the proceeds of crime are untainted property shall be on the accused. Thus Court opined that even if the petitioner no. 2 has been acquitted of the charges framed against him in the sessions trial, a proceeding under the PMLA 2002 cannot amount to double jeopardy, where the procedure and nature of proof are totally different from a criminal proceeding under the Indian Penal Code. Decision on this case Union of India v. Hassan Ali Khan and another,, while dealing with an order, by which the accused persons were granted bail by the High Court [ 2011 (9) TMI 847 - SUPREME COURT] was observed. It may be made clear that the question as to whether the inherent power available under section 482 Cr.P.C. can be exercised for quashing a proceeding initiated under the IMLA or not, is left open. In the result, the CRLMC, being devoid of merit, stands dismissed. - CRLMC No. 114 OF 2011 - - - Dated:- 16-12-2013 - SHRI JUSTICE M.M. DAS J. For Petitioners: M/s. Milan Kanungo, S.Das, S.K.Mishra, A.N. Das Y.S.P. Babu. For opp. parties: Mr. S.D. Das, Asst. Solicitor General. M. M. DAS, J. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were requested by the Assistant Director not to allow any debit from those accounts for smooth conduct of the investigation under the PMLA. Summons in terms of section 50 of the PMLA were issued pursuant to which witnesses were examined regarding criminal activities of the petitioner no.2. 3. The retention of the said amount in different bank accounts of the petitioners has been confirmed by the adjudicating authority under the PMLA, New Delhi on 23.9.2010 in O.C. No. 54 of 2010 after hearing both the parties. The Income Tax authorities have also seized the amount lying in the accounts of petitioner no.2 on 4.6.2010 for initiation of proceedings under the provisions of the Income Tax Act for which the amounts could not be seized under the PMLA at that point of time. Huge amounts have been deposited also in the name of the sons of the petitioners which have been found out during investigation and have been confirmed by the adjudicating authority under the Act in O.C. No. 96 of 2011 after hearing both the parties. 4. The present application, as stated earlier, has been filed to quash ECIR No. 14 of 2010. In Misc. Case No. 84 of 2011 by order dated 9.2.2011, this Court, as an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. In view of such assertions, he submitted that it could not be said that the properties recovered from the house of the petitioners are proceeds of crime which have been projected as untainted within the meaning of section 3 of the PMLA and hence, the proceeding is illegal and arbitrary being contrary to law. He further submitted that both the petitioners have filed their Income tax returns disclosing the sources of income and profits for which tax has been paid. 7. Section 3 of the PMLA defines the offence of money laundering, which reads thus: 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 with the (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 . Section 5 of the PMLA provides attachment of property involved in money-laundering, which reads thus: 5. Attachment of property involved in money- laundering- (1) When the Director or any other officer not below the rank of Deputy Director aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 8, whichever is earlier. (4) Nothing in this section shall prevent the person interested in the enjoyment of the immovable property attached under sub-section (1) from such enjoyment. Explanation - For the purpose of this sub-section, person interested , in relation to any immovable property, includes all persons claiming or entitled to claim any interest in the property. 5. The Director or any other officer who provisionally attaches any property under sub- section (1) shall, within a period of thirty days from such attachment, file a complaint stating the facts of such attachment before the Adjudicating Authority . Section 17 (3) of the PMLA provides as follows:- 17. Search and Seizure:- (1) and (2) xx xx (3) Where an authority, upon information obtained during survey under section 16, is satisfied that any evidence shall be or is likely to be concealed or tampered with, he may, for reasons to be recorded in writing enter and search the building or place where such evidence is located and seize that evidence. Provided that no authorization referred to in sub-section (1) shall be required for search under this sub-section . 8. Mr. Kanungo fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused to prove that the properties seized are untainted and not the proceedings of any crime. The offences, for which the petitioner no. 2 was tried, come under the schedule of the Act. 12. Considering the facts of the present case and the provisions of the PMLA (as amended), this Court is of the view that the PMLA, being a Special Statute, it has overriding effect on the Income Tax Act and further considering the huge amounts of money, which are lying in the bank in the accounts of the petitioners as well as the nature of proceeding under the PMLA, more specifically, section 24 thereof, which provides with regard to burden of proof that when a person is accused of having committed offence under section 3, the burden of proving that the proceeds of crime are untainted property shall be on the accused, this Court is of the view that even if the petitioner no. 2 has been acquitted of the charges framed against him in the sessions trial, a proceeding under the PMLA 2002 cannot amount to double jeopardy, where the procedure and nature of proof are totally different from a criminal proceeding under the Indian Penal Code. 13. The Hon'ble Supreme Court in the case of Union ..... X X X X Extracts X X X X X X X X Extracts X X X X
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