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2011 (8) TMI 1245 - ANDHRA PRADESH HIGH COURT

2011 (8) TMI 1245 - ANDHRA PRADESH HIGH COURT - TMI - W.P. No. 27898 of 2010 - Dated:- 25-8-2011 - Nooty Ramamohan Rao, J ORDER: The two petitioners herein are the wife and husband, who seek a writ of mandamus for declaring the Provisional attachment Orders dated 21-10-2010 as illegal and violative of Article 20 of Constitution of India and further, the action of the 4th respondent in initiating Adjudication under Section 8 of the Prevention of Money- Laundering Act, 2002 (henceforth referred to .....

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Company, its Directors, Auditors and others. It is further stated that the said complaint has been forwarded to the VI Additional Chief Metropolitan Magistrate, Hyderabad, on 12-01-2009. It is further submitted that pursuant to a notification dated 16-02- 2009, the investigation has been entrusted to C.B.I. and the case was registered as C.C.No.187 of 2009 on the file of the XIV Additional Chief Metropolitan Magistrate, Hyderabad, and upon transfer to Special Court-cum-XXI Additional Chief Metr .....

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is further stated that challenging the correctness and validity of the said order, the 1st petitioner herein filed Crl.R.C.No.907 of 2010 in this Court and while directing not to record further statements, the said Revision is posted for further consideration and it is still pending in this Court. It was further submitted that when Industrial Development Bank of India (IDBI) has issued a letter on 30-04-2010, freezing the shares held by the petitioners in the Company, pursuant to a communicatio .....

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tion. Heard Sri Venkateswara Rao Gudapati, learned counsel for the writ petitioners and Sri Rajeev Avasthi, learned special counsel for the respondents appearing on behalf of Sri Ponnam Ashok Goud, learned Assistant Solicitor General. The learned counsel for the petitioners, Sri Venkateswara Rao would contend that under the Schedule to the PML Act, offences under Sections 120-B and 420 IPC are not included at the time when the said offences are alleged to have been committed by the 1st petitione .....

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t arise. The learned counsel would further submit that the CBI has filed its charge sheet against the 1st petitioner (arraying him as A-10) on 22-11-2009 and the charge sheet clearly mentioned that the 1st petitioner herein has been charged for the offence said to have been committed by him under Section 120-B r/w Section 420 IPC only and that an amendment of the Schedule appended to the PML Act has been brought into force on 01-06-2009 incorporating offences of Sections 120-B and 420 IPC therei .....

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RAO SHIV BAHADUR SINGH AND ANOTHER v. THE STATE OF VINDHYA PRADESH AIR 1953 SC 394 a n d G.P.NAYYAR v. STATE (DELHI ADMINISTRATION) (1979) 2 SCC 593 as well as the judgment of a learned Single Judge of Allahabad High Court rendered in ABDUL HALEEM v. STATE, OPPOSITE PARTY 1962(2) CRI. L.J. 414 and another judgment of a learned Single Judge of the Kerala High Court rendered in PAREED LUBBA MUHAMMED LUBBA v. K.K. NEELAMBARAN, EXECUTIVE OFFICER, THODUPUZHA PANCHAYAT AIR 1967 KERALA155. Per contra, .....

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of money laundering and punishment thereof has been provided for. Further, the Statute has also contemplated for attachment and confiscation of the properties, which have a connection with the proceeds of crimes. It is further contended by the learned special counsel that a comprahensive procedure for attachment, adjudication and confiscation has been provided for in the Statute. Further, against the adjudicatory process undertaken by the Primary Tribunal, an Appellate Tribunal has been constitu .....

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d any further, it would be apt to remind oneself that at this stage of the matter, it would be wholly inappropriate to examine the tenability or otherwise of the proceedings initiated under Section 5 of the PML Act. The only question that can be examined is whether the 1st petitioner can be proceeded under Section 5 of the PML Act, for an offence alleged to have been committed by him prior to 01-06-2009, the date on which the Schedule appended to the PML Act has been amended. The objects and rea .....

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g legislation and programme. As a part of this commitment, this enactment has been made by the Parliament, providing for a completely self-contained code of procedure for recognizing and penalizing the offence of money-laundering and also to tackle the proceeds of crime if they eventually percolate into various financial streams of the country, thus, impacting fiscal and economic agendas set forth by the State for its governance. It would be further appropriate to notice that the Financial Actio .....

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te the proceeds of money laundering Implement customer due diligence (e.g. identity verification), record keeping and suspicious transaction reporting requirements for financial institutions and designated non-financial businesses and professions establish a financial intelligence unit to receive and disseminate suspicious transaction reports, and cooperate internationally in investigating and prosecuting money laundering. These recommendations have been updated regularly and periodically. Of la .....

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ssists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime and projecting it as untainted property, shall be guilty of offence of money-laundering. Section 4 declares that whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term, which shall not be less than three years, but which may extend to seven years and shall also be liable to fine, which may extend to five lakh rupees. From the de .....

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pressions have been defined under Section 2(u) and 2(v) of the PML Act, as under: (u) proceeds of crime means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property; (v) property means any property or assets of every description, whether corporeal or incorporeal, movable or immovable, tangible or intangible and includes deeds and instruments evidencing title to, or interest in, suc .....

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oceeds of crime and scheduled offence as defined, the offence must be one that should find a mention either under Part A or Part B of the Schedule appended to the PML Act. Para 1 of Part A of the Schedule listed out the offences under the Indian Penal Code. It is not in dispute that by the Prevention of Money-Laundering (Amendment) Act, 2009 (Act No.21 of 2009), amongst other things, para 1 of Part A of the Schedule has been amended introducing the offence under Section 120-B : criminal conspira .....

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this stage to notice that Chapter-III of the PML Act dealt with the process of attachment, adjudication and confiscation of the proceeds of the crime. As was noticed supra, the PML Act is not only intended to create and provide for prohibitive measures, but also intended to put in place regulatory mechanism, so as to arrest the impact of proceeds of crime denting, in any manner, the fiscal and economic agenda of the State. If I may say so, the Act has provided for two distinct and separate bran .....

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h the aspects to deny certain persons from deriving benefits either knowingly or unknowingly, arising from the proceeds of crime . But, for the provisions contained in Chapter-III, the proceeds of crime could not have been dealt with at the initial stages itself. These two aspects are completely distinct and separate. Chapter-III, therefore, had to deal first with the immediate action that is required to be taken in the matter by ordering for provisional attachment, and then, seeking the process .....

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by an order issued under Chapter-III; Sub-Section (1) of Section 5 authorises the Director, appointed in terms of Sub-Section (1) of Section 49 of the said Act by the Central Government, if he has reason to believe, on the basis of material in his possession that; (a) any person is in possession of any proceeds of crime; (b) such person has been charged of having committed a scheduled offence; and (c) such proceeds of crime are likely to be concealed, transferred or dealt with in any manner whic .....

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l before such Officer, which makes him believe that if the attachment of the proceeds of crime are not ordered, it might result in frustration of the confiscation. (2) A person must be in possession of the proceeds of crime; (3) Such person must have been charged of having committed one or the other of the scheduled offences under this Act; (4) Such proceeds of crime are likely to be concealed or transferred or dealt within any manner, which may result in frustrating any proceedings of their ult .....

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petitioner by the C.B.C.I.D., in C.C.No.187 of 2009 on the file of the XIV Additional Chief Metropolitan Magistrate, Hyderabad, alleging him to have committed offences punishable under Section 120-B r/w Section 420 IPC, on 22-11-2009. Therefore, after 22-11-2009, the proceeds of crime punishable under Sections 120-B and 420 IPC, in the hands of the 1st petitioner herein, are capable of being subjected to action under Section 5 of the PML Act. As was already noticed, the provisional attachment or .....

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……… In our considered view, the provisions of the Act which clearly and unambiguously enable initiation of proceedings for attachment and eventual confiscation of property in possession of a person not accused of having committed an offence under Section 3 as well, do not violate the provisions of the Constitution including Articles 14, 21 and 300-A and are operative proprio vigore. While the offence of moneylaundering comprises various degrees of association and activity wi .....

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elating to a scheduled offence or the value of any such property. Property is defined in Section 2 (v) to include property of every description corporeal, incorporeal, movable, immovable, tangible, and intangible and includes deeds and instruments evidencing title to or interest in such property or assets wherever located. The matrix of the relevant provisions of the Act compel the inference that the legislation subsumes that property which satisfies the definition of proceeds of crime , prima f .....

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rly intended and specifically enacted strategy to combat the evil of money-laundering. A person though not accused/charged of an offence under Section 3, when in possession of any proceeds of crime, from the provisions of the Act it is clear, has but a defeasible and not a clear title thereto. Dealing with the same question, which was raised by the learned counsel for the petitioners herein, this is what has been said by the Division Bench in the aforementioned Judgment: ……… .....

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t time by the provisions of the Second Amendment Act, 2009. The contention on behalf of the petitioners that the second proviso to Section 5(1) of the Act, applies only to property acquired/possessed prior to enforcement of this provision or if interpreted as being retrospective, the provision itself must be invalidated for arbitrary retrospective operation is therefore without substance or force. The above contention does not merit acceptance even otherwise. Article 20 of the Constitution enact .....

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ion for the offence of money-laundering cannot be recorded if the said offence is committed prior to the enforcement of Section 3 of the Act, such a contention cannot be advanced to target proceedings for attachment and confiscation, as these fall outside the pale of the prohibitions of the Constitution, in particular Article 20(1). xxxx……xxxx……xxxx……xxxx…. xxxx……xxxx……xxxx……xxxx…. The observations .....

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ding down the said definition to confine it to the violation of the acts referred to in Section 2(2)(a) of SAFEMA. We can take note of the fact that persons engaged in smuggling and foreign exchange manipulations do not keep regular and proper accounts with respect to such activity or its income or of the assets acquired therefrom. If such person indulges in other illegal activity, the position would be no different. The violation of foreign exchange laws and laws relating to export and import n .....

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ons and which properties or which portions thereof are attributable to violation of other laws (which the Parliament has the power to make). It is probably for this reason that the burden of proving that the properties specified in the show cause notice are not illegally acquired properties is placed upon the person concerned. May be this is a case where a dangerous disease required a radical treatment. Bitter medicine is not bad medicine. In law it is not possible to say that the definition is .....

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clear and unambiguous words in the clause. So far as justification of such a provision is concerned, there is enough and more. After all, all these illegally acquired properties are earned and acquired in ways illegal and corrupt - at the cost of the people and the State. The State is deprived of its legitimate revenue to that extent. These properties must justly go back where they belong - to the State. What we are saying is nothing new or heretical. Witness the facts and ratio of a recent deci .....

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ong claimed that the said properties in New Zealand were held by the owners thereof as constructive trustees for the Crown and must be made over to the Crown. The Privy Council upheld this claim over-ruling the New Zealand Court of Appeals. Lord Templeman, delivering the opinion of the Judicial Committee, based his conclusion on the simple ground that any benefit obtained by a fiduciary through a breach of duty belongs in equity to the beneficiary. It is held that a gift accepted by a person in .....

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t value and the initial amount of the bribe, and if the property increased in value the fiduciary was not entitled to retain the excess since equity would not allow him to make any profit from his breach of duty. Accordingly, it is held that to the extent that they represented bribes received by the first respondent, the New Zealand properties were held in trust for the Crown, and the Crown had an equitable interest therein. The learned Law Lord observed further that if the theory of constructiv .....

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plies equally where a person acquires properties by violating the law and at the expense of and to the detriment of the State and its revenues where an enactment provides for such a course, even if the fiduciary relationship referred to in Reid is not present. It may be seen that the concept employed in Reid was a common law concept, whereas here is a case of an express statutory provision providing for such forfeiture. May we say in conclusion that the interests of society are paramount to indi .....

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s in the ownership, control or possession of property believed to be proceeds of crime, depending on whether the person is accused of a scheduled offense or not, necessitating such person to dislodge the presumption by probative evidence or material. In view of the erudite enunciation of the principles by the learned Division Bench, to my mind, the action initiated under Section 5 of the PML Act against the 1st petitioner herein cannot be faulted on any score. That takes us to the next question .....

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force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence." This Article, in its broad import has been enacted to prohibit conviction and sentences under 'ex post facto' laws. The principle underlying such prohibition has been very elaborately discussed and pointed out in the very learned judgment of Justice Willes in the wel .....

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m are bad as being highly inequitable and unjust. In the English system of jurisprudence repugnance of such laws to universal notions of fairness and justice is treated as a ground 'not' for invalidating the law itself but as compelling a beneficent construction thereof where the language of the statute by any means permits it. In the American system, however, such 'ex post facto' laws are themselves rendered invalid by virtue of Art. 1 Ss. 9 and 10 of its Constitution. It is con .....

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ospective operation, and that the invalidity of laws brought about by Art. 13 (1) of the Constitution relates only to the future operation of the pre-Constitution laws which are in violation of the fundamental rights. On this footing it was argued that even on the assumption of the convictions in this case being in respect of new offences created by Ordinance No. 48 of 1949 after the commission of the offences charged, the fundamental right guaranteed under Art. 20 is not attracted thereto so as .....

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the Indian Constitution the language used is in much wider terms, and what is prohibited is the conviction of a person or his subjection to a penalty under 'ex post facto' laws. The prohibition under the Article is not confined to the passing or the validity of the law, but extends to the conviction or the sentence and is based on its character as an 'ex post facto' law. The fullest effect must therefore be given to the actual words used in the Article. Nor does such a construct .....

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perly be called a retrospective statute because 'a part' of the requisite for its action is drawn from a time antecedent to its passing. The general principle, therefore, that the fundamental rights have no retrospective operation is not in any way affected by giving the fullest effect to the wording of Art. 20. This Article must accordingly be taken to prohibit all convictions or subjections to penalty after the Constitution in respect of 'ex post facto' laws whether the same wa .....

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ss against himself, if after the Constitution the case is pending. 9. In this context it is necessary to notice that what is prohibited under Art. 20 is only conviction or sentence under an 'ex post facto' law and not the trial thereof. Such trial under a procedure different from what obtained at the time of the commission of the offence or by a Court different from that which had competence at the time cannot 'ipso facto' be held to be unconstitutional. A person accused of the c .....

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ich says that the Act "shall be deemed to have been in force in Vindhya Pradesh from the 9th day of August 1948", a date long prior to the date of the commission of the offences. It was accordingly suggested that since such a law at the time when it was passed was a valid law and since this law had the effect of bringing this Ordinance into force from 9-8-1949 it cannot be said that the convictions are not in respect of 'a law in force" at the time when the offences were commi .....

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9;, laws passed after the Constitution. Every such 'ex post facto' law can be made retrospective, as it must be, if it is to regulate acts committed before the actual passing of the Act, and it can well be urged that by such retrospective operation it becomes the law in force at the time of the commencement of the Act. It is obvious that such a construction which nullifies Art. 20 cannot possibly be adopted. It cannot, therefore, be doubted that the phrase "law in force" as use .....

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ed subsequent to the commission thereof, then they would be entitled to the benefit of Art. 20 of the Constitution and to have their convictions set aside. ……….. (Emphasis is generated now) The principle enunciated in this Judgment has subsequently been reiterated in G.P. NAYYAR s case cited (2 supra) and followed by Allahabad and Kerala High Courts cited (3 and 4 supra), the Judgments of which have been relied upon by the learned counsel for the petitioners. From the abovem .....

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as to whether the impugned orders of provisional attachment passed by the Enforcement Director ceases to have any effect after expiry of the 150 days time-period provided under Subsection( 1) of Section 5 of the PML Act. Sub-Section (3) of Section 5 makes it clear that every order of attachment made under Sub-Section (1) shall cease to have effect after the expiry of the period specified in that sub-section or on the date of order, made under Sub-Section (2) of Section 8 by the adjudicating auth .....

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