TMI Blog2017 (8) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... are in the custody of the CBI Court. When the entire documents are in the custody of the Court, there cannot be any reason to believe that the properties will be dealt with in any other manner. The impugned order was as if 1st petitioner not able to offer any satisfactory explanation during examination. Therefore, the attachment officer has passed an order without a reason to believe that the proceeds of crime are likely to be transferred or disposal. In the absence of any sufficient reason, arriving to such conclusion by mere reproducing the words reason to believe it cannot be stated that the order has been passed after considering the entire gamut of materials. Admittedly, in this case, entire documents are available and the properties are in the custody of the court. Therefore, the order of attachment is not maintainable. - Crl. O. P. Nos. 10497 and 10500 of 2017 - - - Dated:- 13-7-2017 - N. Sathish Kumar, J. For the Petitioners : Mr. V. S. Venkatesh For the Respondents : Mr. M. Dhandapani, Mr.K. Srinivasan ORDER Crl.O.P.No.10497 of 2017 is filed to quash the Provisional Attachment Order No.09/2017 dated 07.04.2017 in ECIR/CEZO/08/ 2015 Chennai Zone passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Act do not find place in the scheduled offences list under Prevention of Money Laundering Act. It was also pointed out to the office of the 3rd respondent by the petitioners' reply that Section 13 of the Prevention of Corruption Act 1998 was added in the list of scheduled offences only on 1.6.2009. The first petitioner appeared before the Assistant Director on 20.06.2016 and his statement was recorded and the 2nd petitioner appeared on 21.6.2016 and her statement was also recorded. She has stated that all the original documents of properties were seized by the CBI, ACB, Chennai and the same are in the custody of the 14th Additional Special Judge for CBI Cases. However, 1st and 2nd respondents did not consider any of the submissions made by the petitioners and the above impugned Provisional attachment order has been passed. 3rd and 4th petitioners were minors, born on 14.08.1993 and 5.4.1996 respectively. 2.(d) The second respondent provisionally attached movable properties in the name of 3rd and 4th petitioners. 3rd and 4th petitioners were minor at the time of the alleged offence. The list of properties provisionally attached in the name of 3rd petitioner is as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 110 8 Years 7 Months Kisan Vikas Patra No.90 BB 770973 dated 18.04.2005 issued by Sub-Post Master, Sowcarpet NDSO, Chennai - 79 Miss Vishakha Gupta 5,000.00 11 119 Balance in SB Account No.4754 in A/c of Central Bank of India, Anna Nagar Branch as on 30.06.2005 Shri Ajay Kumar Gupt Miss Vishakha Gupta 37,039.56 12 131 Amount in PPF A/c.No.01P00900383 at SBI, Anna Nagar West Branch as on 30.06.2005 Miss Vishakha Gupta 80,000.00 Total 2,99,039.56 2.(e) Similarly the list of properties provisionally attached in the name of 4th petitioner is as follows: Sl. No Referred in CBI Charge Sheet in CC 18/2009 Held in Name/Names Amount 1 81 STDR No.356496 Dated 26.12.2003 maturing on 26.12.2006 at SBI, Kodambakkam Branch Smt. Veen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Total 2,62,000.00 2.(f) The Provisional Attachment Order suffers from serious infirmity. The 3rd and 4th petitioners were never arrayed as accused in any case and they were school going children and now they are studying in college and without considering the same, they have now been summoned to appear before the 1st respondent. The Provisional Attachment Order No.9/2017 relates to the properties possessed or acquired by the petitioners 1 and 2 during the period 1.5.1997 to 30.06.2005 and during such material period the Prevention of Money Laundering Act was not in force. The Prevention of Money Laundering Act, 2002 was came into force only on 1.7.2005. Whereas final report was submitted by CBI on 13.01.2009. Similarly, Prevention of Corruption Act was included in the Scheduled List of Offences only with effect from 01.06.2009 and it can have no retrospective or retroactive operation and any penal action for alleged offences committed prior to the enactment and operation of law is violative of the Article 20 (1) of the Constitution of India. 2.(g) Hence, Challenging the Provisional Attachment Order p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent are not maintainable and both the petitions are liable to be dismissed. The Learned Special Public Prosecutor for Enforcement Directorate also relied upon the Judgments reported in 1.Solidaire India Ltd., Vs. Fair Growth [AIR 2001 FC 958 : JT 2001(2) SC 642; MANU/ST/0009/2001], 2.Bank of India vs. Ketan Parekh [2008 (8) SCC 148 : AIR 2008 SC 2361; MANU/SC/2700/2008], 3.Union of India Vs. Hassan Ali Khan and another [C.A.No.1883 of 2011 of Honourable Supreme Court ] and 4.Gokak Patel Volkart Ltd., Vs. Dundayya Gurushiddaiah Hiremath [1991 SCR (1) 396, 1991 SCC (2) 141]. 6. In the light of the above submissions, now the point that arise for consideration in these Criminal Original Petitions is: whether the order of Provisional Attachment made and the Original Complaint filed before the Adjudicating Authority, under the Prevention of Money Laundering Act, 2002, by the second respondent are in accordance with law or liable to be quashed 7. It is not disputed that the 1st petitioner was charge sheeted by the CBI, Anti Corruption Branch for the alleged possession of assets and pecuniary resources and the 2nd petitioner was prosecuted for abetment i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by a person authorised to investigate the offence mentioned in the Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be or a similar report or complaint has been made or filed under the corresponding law of any other country: Provided further that, notwithstanding anything contained in [first proviso], any property of any person may be attached under this section if the Director or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section has reason to believe (the reasons for such belief to be recorded in writing), on the basis of material in his possession, that if such property involved in money-laundering is not attached immediately under this Chapter, the non-attachment of the property is likely to frustrate any proceeding under this Act.] (2) The Director, or any other officer not below the rank of Deputy Director, shall, immediately after attachment 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n such manner as may be prescribed. Provided that no such order of attachment shall be made unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under section 173 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint has been filed by a person authorised to investigate the offence mentioned in the Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be or a similar report or complaint has been made or filed under the corresponding law of any other country: Provided further that, notwithstanding anything contained in clause (b), any property of any person may be attached under this section if the Director or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section has reason to believe (the reasons for such belief to be recorded in writing), on the basis of material in his possession, that if such property involved in money-laundering is not attached immediately under this Chapter, the non-attachment of the property is likely to frustrate any proceeding under this Act. 9. On a careful perusal of the above section after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be prosecuted for the offences alleged, as they are not the scheduled offences under the PML Act. Those offences under the Mines and Geology (Development and Regulation) Act, 1957, the Forest (Conservation) Act, 1980, the Indian Penal Code and the Prevention of Corruption Act, 1988, were included in the PML Act declaring them as scheduled offences only with effect from June 1, 2009. Hence, the Enforcement Directorate Could not have invoked the provisions of the PML Act with retrospective effect. 12. The petitioner cannot be tried and punished for the offences under the PML Act when the offences were not inserted in the schedule of offences under the PML Act. This would deny the writ petitioner the protection provided under Clause (1) of Article 20 of the Constitution of India. Article 20(1) of the Constitution of India prohibits the conviction of a person or his being subjected to penalty for ex-post facto laws. Consequently, the order of attachement is, also, liable to be set aside. 11. In the case of Mahanivesh Oils Foods Pvt. Ltd., V. Directorate of Enforcement in W.P.(C)1925/ 2014 and C.M.No.4017/2014 the Delhi High Court has held thus: 19. Section 2(u) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anishes. Such cases where it is conclusively held that a commission of a scheduled offence is not established and such decision has attained finality pose no difficulty; in such cases, the proceedings under the Act would fail. 29. The Act is a penal statute and, therefore, can have no retrospective or retroactive operation. Article 20(1) of the Constitution of India expressly forbids that no person can be convicted of any offence except for the violation of a law in force at the time of the commission of the act charged as an offence. Further, no person can be inflicted a penalty greater than what could have been inflicted under the law at the time when the offence was committed. Clearly, no proceedings under the Act can be initiated or sustained in respect of an offence, which has been committed prior to the Act coming into force. However, the subject matter of the Act is not a scheduled offence but the offence of money-laundering. Strictly speaking, it cannot be contended that the Act has a retrospective operation because it now enacts that laundering of proceeds of crime committed earlier as an offence. In The Queen v. The Inhabitants of St. Mary, Whitechapel (1848) 12 QB 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory explanation during examination. Therefore, the attachment officer has passed an order without a reason to believe that the proceeds of crime are likely to be transferred or disposal. In the absence of any sufficient reason, arriving to such conclusion by mere reproducing the words reason to believe it cannot be stated that the order has been passed after considering the entire gamut of materials. Admittedly, in this case, entire documents are available and the properties are in the custody of the court. Therefore, the order of attachment is not maintainable. 13. Similarly, the charge sheet was filed on 13.1.2009 under Section 13 of Prevention of Corruption Act, but this section was included in the list of Scheduled Offences under Prevention of Money Laundering Act is only on 1.6.2009. Therefore subsequent amendment cannot be given any retrospective effect. It is also categorically held by the Karnataka High Court in M/s Obulapuram Mining Company Pvt. Ltd.case, referred above. The Delhi High Court in Arunkumar Mishra v. Directorate of Enforcement case in Crl.M.C.No.5508 of 2014 has held as follows: 21. It is settled principle of law that the provisions of law cannot be r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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