TMI Blog2016 (5) TMI 1544X X X X Extracts X X X X X X X X Extracts X X X X ..... any other officer authorised, may arrest an offender. Clearly, there was a conflict between these two provisions. Under Section 45(1)(b) of the Act, the Special Court shall not take cognizance of any offence punishable under Section 4 except upon a complaint made in writing by the Director or any other officer authorised by the Central Government. So, what would happen to an arrest made by any police officer in the case of a cognizable offence? Which is the court that will try the offence? Clearly, there were inconsistencies in these provisions. We have now enabled only the Director or an officer authorised by him to investigate offences. Of course, we would, by rule, set up a threshold; and, below that threshold, we would allow State police officers also to take action - The second anomaly that we found was that the expression investigation officer and the word investigation occur in a number of sections but they were not defined in the Act. Consequently, one has to go to the definition in the Criminal Procedure Code and that Code provides only investigation by a police officer or by an officer authorised by a Magistrate . So, clearly, there was a lacuna in not enabling t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act unless specifically authorized by the Central Government by a general or special order The provisions of the Act has been given overriding effect upon any other law and further categorically mentioned that any provision of Code of Criminal Procedure which are inconsistent with the provision of this Act which deals with attachment, confiscation investigation and prosecution etc. shall not apply. There is no provision in the Act which is a special statute for filing of police report. It could file a complaint only after completion of investigation by the authorized authority, which shall be the basis of taking cognizance - 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. It is concluded that none of the fundamental rights, or any legal rights of any of the applicants could be said to have been infringed in any manner. So far as the issue as regards the admissibility and evidentiar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrate, Patiala House, New Delhi. 5. The petitioner was, thereafter, produced before the Designated Special Court at Ahmedabad on 25.05.2015. The Designated Court granted remand upto 28.05.2015. 6. In the PMLA Complaint No. 8 of 2015, which was filed on 15.06.2015 before the Designated Special Court, Ahmedabad, the petitioner has been shown as an accused along with the other co-accused. In such circumstances referred to above, he has prayed for the following reliefs; (A) To issue a writ of mandamus and/or certiorari and/or any other writ, order or direction quashing and setting aside the PMLA Case No. 8 of 2015 filed in ECIR No: ECIR/03/AMZO/2015 dated 15/06/2015 and order dated 15/06/2015 at Annexure-A passed by Hon'ble Special Judge, Ahmedabad (Rural), the Designated Special Court under the Prevention of Money Laundering Act, 2002 at Ahmedabad qua the petitioner. (B) To issue a writ of mandamus and/or certiorari and/or any other writ, order or direction quashing and setting aside the PMLA Case No. 8 of 2015 filed in ECIR No: ECIR/03/AMZO/2015 dated 15/06/2015 under the Prevention of Money Laundering Act, 2002 at Ahmedabad qua the petitioner. (C) Pending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the mandatory procedural safeguards contained in the Criminal Procedure Code on an erroneous claim that since they are not police officers , and the PMLA, being a Special Act containing the provisions for arrest, search, seizure, examination etc., they are not bound by any provisions of the Cr.P.C. 10. The learned counsel submitted that under the PMLA, it was necessary to follow the procedural safeguards contained in the Cr.P.C. for the purpose of investigation, recording of information of an offence, informing the concerned Magistrate regarding the receipt of information of the offence, maintaining case diary and for producing the same when the accused was produced in the court. 11. According to the learned counsel, section 65 of the PMLA clearly mandates application of the provisions of the Cr.P.C. insofar as they are not inconsistent with the provisions of the PMLA. 12. The learned counsel has placed strong reliance on the decision of the Supreme Court in the case of Om Prakash v. Union of India, 2011 (14) SCC 1 : (AIR 2012 SC 545). 13. The learned counsel has also placed reliance on the decision of the Supreme Court in the case of Directorate of Enforcement v. D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision from which such a conclusion emerged by necessary implication. As shown by us, there is no such provision in the NDPS Act and the scheme of the Act indicates that the total period of custody of the accused permissible during investigation is to be found in Section 167, Cr.P.C. which is expressly applied. The absence of any provision inconsistent therewith in this Act is significant. 18. He submitted that in the absence of any provision in a Special Act indicating the contrary intention, the provisions of the Code would apply. There is no specific contrary provision in the PMLA, so as to exclude the operation of Sections 154 157/155(2) 155(3), 167 and 172 and other consequent provisions of the Code. Only on the aspects for which specific procedure so as to exclude that specified in the Code is provided under the PMLA, the provisions of the PMLA would override the provisions of the Code. So far as the procedure for commencement of the investigation, recording of information of offence, informing the jurisdictional Magistrate regarding the receipt of information of the offence, maintaining case diary or for dealing with the person after production in the Court is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de/Article 226 for seeking quashing of the FIR/the complaint of non-cognizable offence at the inception; e) seek effective protection from the threatened violation of the fundamental rights under Article 32 of the Constitution by annexing therewith the concerned FIR of the cognizable case or the complaint with order to investigate the non-cognizable case; f) place on record of the investigating agency such material which would, demolish the allegations in the FIR/the complaint, and/or satisfy the officer concerned that the role alleged against him is not true and correct; and g) take appropriate steps in accordance with law, if the information recorded is wrong, malicious, distorted and to wreck vengeance only to spitefully set criminal law into motion, h) seek redress against fishing and roving inquiry, i) Any person would be entitled to seek an order from a Magistrate for seeking directions to the Authorities for investigating the offence under the PMLA. 21. According to the learned counsel, a valid investigation in any offence punishable under section 4 of the PMLA made after complying with the provisions of the Code, would culminate with the filing of a compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which inter alia contained the following objects and reasons- 2. Steps are being taken by the Central Government to implement the provisions of the Prevention of Money Laundering Act, 2002 which, inter alia, includes.... However certain difficulties were envisaged while planning the implementation of the Act. In order to ensure effective implementation and to remove certain difficulties in the implementation of the aforesaid Act, it is proposed to amend the aforesaid Act inter alia so as to- (c) omit clause (a) of sub-section (1) of Section 45 of the Prevention of Money Laundering Act, 2002, which provides that every offence punishable under that Act shall be cognizable; [Emphasis supplied] The corresponding Loksabha Debates of 6.5.2005 for consideration of Prevention of Money Laundering (Amendment) Bill, 2002', clearly shows that the said amendment was proposed to make the offence non-cognizable , inter alia because if the offence is cognizable, any police officer can arrest without warrant. Although these debates do not have any binding force, but have some persuasive value. Under section 54(f) and (g) of the PMLA, the police officers as well as the offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Guntaiah v. Hambamma, (2005) 6 SCC 228 : (AIR 2005 SC 4013) (at page 103 of the compilation), relied on the following observations of a Privy Council Judgment in Chandler v. D.P.P. (All ER pp. 1451-146 A-B)- In my view, sidenotes cannot be used as an aid to construction. They are mere catchwords and I have never heard... that an amendment to alter a sidenote could be proposed in either House.....so sidenotes cannot be said to be enacted in the same sense as the long title or any part of the body of the Act. Even in Union of India v. National Federation of the Blind Ors., (2013) 10 SCC 772 : (2013 AIR SCW 5655) (at page 131 of the compilation), the Hon'ble Supreme Court found that the heading or marginal note would not play any crucial role in the interpretation, while observing that- 45. It is clear that when the provision is plainly worded and unambiguous, it has to be interpreted in such a way that the court must avoid the danger of a prior determination of the meaning of a provision based on their own preconceived notions of ideological structure or scheme into which the provision to be interpreted is somehow fitted. While interpreting the provisions, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at any time during the relevant previous year shall be jointly and severally liable for the payment of such tax unless he proves that the non-recovery cannot be attributed to any gross neglect, misfeasance or breach of duty on his part in relation to the affairs of the company. In such identical situation, the Hon'ble Allahabad High Court in the matter of Roop Chandra Sharma v. Deputy Commissioner of Income Tax (Assessment), 1998 (229) ITR 570 (All) was pleased to hold that notwithstanding the misleading heading of Sec. 179, it must be held that the directors of a private company, though not under liquidation, may be liable for the dues outstanding against the company. This view was taken by following the decision of Hon'ble Bombay High Court in Union of India v. Manik Dattatreya Lotlikar, 1998 (172) ITR 1 (Bom), wherein the Hon'ble Bombay High Court observed that the object of the amendment was to extend the liability for taxes due from a private company to the directors thereof, even though such company may not be in liquidation. On the same analogy, notwithstanding the misleading heading showing the offence as 'cognizable', after the 2005 amendmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charges as also to lend creditability to the search and seizure conducted by the empowered officer. The argument that keeping in view the growing drug menace, an insistence on compliance with all the safeguards contained in Section 50 may result in more acquittals does not appeal to us. If the empowered officer fails to comply with the requirements of Section 50 and an order or acquittal is recorded on that ground, the prosecution must thank itself or its lapses. Indeed in every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. 55. We, therefore, hold that an illicit article seized from the person of an accused, during search conducted in violation of the safeguards provided in Section 50 of the Act, cannot by itself be used as admissible evidence of proof of un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agree with Mr. Biswas. Firstly, because the provisions of Section 155, Criminal Procedure Code are quite mandatory and it has been held in a series of decisions, facts wherein have been sought to be distinguished from by the learned Sessions Judge, that such a non-conformance is a material one vitiating the ultimate proceeding. Secondly, the interpretation of the principles laid down in H.N. Rishbuds case is not a correct one. It is pertinent, therefore, to refer to the relevant findings arrived at by Mr. Justice Jagannadhadas, delivering the judgment of the Court in the said case. It is, inter alia, as follows:- We are, therefore, clearly, also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby. It is abundantly clear, therefore, that the ultimate principles laid down by the Supreme Court are based on two different steps, firstly, that the case had proceeded to a termination and secondly, that there has been a (sic)(no?) miscarriage of justice. The test of such miscarriage has been m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 83-89 of the Compilation), while quashing and setting aside the criminal prosecution initiated against the Petitioner therein, agreed with the said judgment in the matter of Subodh Singh Modak (supra) and also held that non-conformance of mandatory provisions of section 155(2) of the Code vitiates the entire investigations as well as the trial and such irregularity cannot be cured under section 460 or 466 of the Code. The Hon'ble Supreme Court in Keshav Lal Thakur v. State of Bihar (1996) 11 SCC 577 (at Pages 24-25 of the compilation) was pleased to quash the criminal proceedings initiated on completion of investigation of a non-cognizable offence under section 31 of Representation of the People Act, 1950, where no order of a Competent Magistrate under section 155 (2) of the Code was obtained, by holding that neither the Police was entitled to investigate into the offence in question, nor the Chief Judicial Magistrate to take cognizance upon the Report submitted on completion of such investigation. The Hon'ble Bombay High Court in Vithal Puna Koli v. State of Maharashtra, 2006 All MR (Cri) 3021 (at pages 93-94 of the Compilation) was pleased to follow the decisions i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority on earth can enjoy. The Hon'ble Supreme Court was further pleased to lay down illustrations in para 102 in Bhajanlal (AIR 1992 SC 604, para 108) (supra), wherein powers under Article 226 or under Section 482 of the Code could be exercised to secure the ends of justice, inter alia, for the following categories of cases-- 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (2) Where the allegations in the first information repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act. 6......Such a fundamental infirmity cannot be called a technical objection or a mere irregularity and such vital infirmity cannot be cured or obliterated by relying on Section 292B of the Income-tax Act. It was not a mere technicality and it is a question of jurisdiction. .....On this basis, we hold that the Appellate Tribunal was in error in holding that Section 292B is applicable in the instant case and in reversing the orders of the Appellate Assistant Commissioner for these four assessment years. 26. In such circumstances referred to above, the learned counsel prays that there being merit in the petitions, the same be allowed and the reliefs as prayed for may be granted. 27. On the other hand, all the petitions have been vehemently opposed by Ms. Trusha Patel, the learned standing counsel appearing for the Union of India. Ms. Patel gave more than a fair idea as to how the PMLA was enacted. She also gave a fair idea as regards the object of enacting the PMLA. Ms. Patel drew a fine distinction between the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made to section 44 to submit that not 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 the State Government, authorized in writing in that behalf by the State Government by general or special order. Section 48 was referred to, to show the classes of authorities who can be appointed for the purpose of the Act which is headed by the Director, Additional Director, Joint Director, Deputy Director and the Assistant Director. 31. Ms. Patel placed strong reliance on the following decisions; 1 Officers under Special Act, though carries out investigation, does not become 'Police officer' and hence no charge-sheet is required to be filed. AIR 1966 SC 1746; Paras 9-11 2 Officers of ED- are Not Police Officers AIR 2011 SC 2490 : 2011 GLHEL SC 50045 (sic) AIR 1991 SC 45: Para 11 3 Powers of arrest given under the special Act (Customs Act) not to be interfered with by the Courts. AIR 2009 SC 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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-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. Provided that where the proceeds of crime involved in money laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words which may extend to seven years , the words which may extend to ten years had been substituted. [***] 37. Under Section 2(na), investigation includes all the proceedings under the Act 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; 38. Section 49, confers power to the Central Government to appoint such persons as it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pear to be necessary for removing the difficulty: Provided that no order shall be made under this section after the expiry of two years from the commencement of this Act. (2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament. 42. Section 23 reads as under; 23. Presumption in inter-connected transactions Where money-laundering involves two or more interconnected transactions and one or more such transactions is or are proved to be involved in money laundering, then for the purposes of adjudication or confiscation [ under section 8 or for the trial of the money-laundering offence, it shall unless otherwise proved to the satisfaction of the Adjudicating Authority or the Special Court ] be presumed that the remaining transactions form part of such inter-connected transactions. 43. Section 24 reads as under; 24. Burden of proof In any proceeding relating to proceeds of crime under this Act,--(a) in the case of a person charged with the offence of money-laundering under section 3, the Authority or Court shall, unless the contrary is proved, presume that such proceeds of crime are involved i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the reasons so recorded along with 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 reasons and material for such period, as may be prescribed. (3) Where an authority is about to search any person, he shall, if such person so requires, take such person within twenty-four hours to the nearest Gazetted Officer, superior in rank to him, or a Magistrate: Provided that the period of twenty-four hours shall exclude the time necessary for the journey undertaken to take such person to the nearest Gazetted Officer, superior in rank to him, or Magistrate's Court. (4) If the requisition under sub-section (3) is made, the authority shall not detain the person for more than twenty-four hours prior to taking him before the Gazetted Officer, superior in rank to him, or the Magistrate referred to in that sub-section: Provided that the period of twenty-four hours shall exclude the time necessary for the journey from the place of detention to the office of the Gazetted Officer superior in rank to him, or the Magistrate's Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estigate and prosecute. This Act was made to implement the political declaration adopted by the Special Session of the UN General Assembly in 1999. Section 1(3) of the Act stipulates that the Act will come into force on such date as the Central Government may by notification appoint. While we were examining the question of notifying the Act, I found that there was certain lacunae in the Act. I regret to say that not enough homework had been done in the definitions, and in the division of responsibility and authority. So, in consultation with the Ministry of Law, we came to the conclusion that these lacunae had to be removed. Broadly, the reasons for the amendment are the following. Under the existing provisions in Section 45 of the Act, every offence is cognizable. If an offence is cognizable, then any police officer in India can arrest an offender without warrant. At the same time, under Section 19 of the Act, only a Director or a Deputy Director or an Assistant Director or any other officer authorised, may arrest an offender. Clearly, there was a conflict between these two provisions. Under Section 45(1)(b) of the Act, the Special Court shall not take cognizance of any offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That the Bill to amend the Prevention of Money laundering Act, 2002, be taken into consideration. 47. Money laundering is an activity sought to be criminalised in the various countries. Various definitions exist and have been used to explain what money laundering is. Money laundering is termed thus because the term perfectly describes what takes place: illegal (or 'dirty') money is put through a cycle of transactions (or is 'washed'), so that it comes out at the other end as legal (or 'clean') money. Jefferey Robinson, an acknowledged authority on the subject, has stated: the source of illegally obtained funds is obscured through a succession of transfers and deals in order that those same funds can eventually be made to appear as legitimate income. The internationally accepted definition is laid down in the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (1990) in Article 6. Each party shall adopt such legislative and other measures as may be necessary to establish as offences under its domestic law, when committed intentionally: a) The conversion or transfer of property knowing that such prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2002 (15 of 2003) stands deleted. The said sub-clause (a) provided that every offence punishable under this Act shall be cognizable. Sub-section (1A) introduced by the Prevention of Money Laundering (Amendment) Act of 2005 provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any other provision of this Act, no police officer shall investigate into an offence under this Act, unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed. 51. There are no words in the body of the section to declare the offences under the Act to be non-bailable. Since the Act has created new offences, it was necessary that there ought to have been a specific provision in that respect. However, the marginal note to the section reads as offences to be cognizable and non-bailable . It is true that at one time the judicial view was that the marginal notes are not part of statute for they are not inserted by the Parliament, nor under the authority of the Parliament. But this view no longer holds good in India. The Supreme Court, in the case of Bhagirath v. Delhi Administr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (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 overriding effect upon any other law and further categorically mentioned that any provision of Code of Criminal Procedure which are inconsistent with the provision of this Act which deals with attachment, confiscation investigation and prosecution etc. shall not apply. There is no provision in the Act which is a special statute for filing of police report. It could file a complaint only after completion of investigation by the authorized authority, which shall be the basis of taking cognizance. 53. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Government by a general or a special order made in this behalf by that Government. (2) The limitation on granting of bail specified in sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. 45. Offences to be cognizable and non-bailable.-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless-- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person who is under the age of sixteen years or is a woman or is sick or infirm, may be released on bail, if the special court so directs: Provided further that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Under Part II of the first schedule, classification of offences against other laws provide that offences punishable with imprisonment for more than 3 years and upwards would be cognizable and non-bailable. The same reads as under:-- Offence Cognizable or non- cognizable Bailable or non-ailable By what court triable 1 2 3 4 If punishable with 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 on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consider the provisions of the PMLA in Hari Narayan Rai v. Union of India and another, 2010 (2) AIR Jhar R 692 and noticed that a complaint 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 special statute, the procedure for dealing with the offences are regulated by the provisions contained in the said Act. Section 44(lb) clearly provides that cognizance for the offence punishable under the Act shall be taken only upon a complaint made by an authority authorized in that behalf under the Act. Further Section 45 of the Act put restrictions in the release of the persons on bail unless conditions mentioned therein are fulfilled. It further provides that special Court shall not take cognizance of any offence under section 4 except on a complaint mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not inconsistent with the provisions of the PMLA, 2002. Section 65 reads thus:-- 65. Code of Criminal Procedure, 1973 to apply.--The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, insofar as they are not inconsistent with the provisions of this Act, to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under this Act. 37. Section 71 would further be a hurdle in the way of the petitioners which provides that the PMLA has to have an overriding effect and notwithstanding 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 cognizance of the offence under Section 3 without the accused being committed to it for trial. Section 46 further provides t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Special Court shall be deemed 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 special knowledge of law. (3) Every person appointed as a Public Prosecutor or a Special Public Prosecutor under this section shall be deemed to be a Public Prosecutor within the meaning of clause (u) of Section 2 of the Code of Criminal Procedure, 1973 (2 of 1974) and the provisions of that Code shall have effect accordingly. 39. The Special Court as notified under Section 43 is to be the Sessions Judge of various divisions and for separate revenue districts as per the notification issued by the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the plain meaning of the Statute is to be taken into consideration and the Court is not to read anything into the statutory provisions and only the legislative intent is to be found out and neither any words are to be added, altered or modified unless it is necessary to do so. The Statute has to be read in its whole for the purpose of finding out its object and nothing could be shown that there was any absurdity or manifest injustice which has been 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 provides that persons who are accused of the offence punishable for a term of imprisonment for more than 3 years under part A of the Schedule would have to satisfy the conditions laid down before bail is granted to them by the Special Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 legislature while enacting a law has a complete knowledge of the existing laws on the subject-matter and, therefore, when it does not provide a repealing provision, it gives out an intention not to repeal the existing legislation. The burden to show that there has been a repeal by implication lies on the party asserting it. Relying upon statutory interpretation by Francis Bennion (1984 Edition), counsel contends that where, as in the present case, the provisions of the later enactment (the Act) are contrary to those of the earlier (the Code), the later by implication repeals the earlier in accordance with the maxim leges posteriores priores contrarios abrogant (later laws abrogate earlier contrary laws). This is, however, subject to the exception embodied in the maxim generalia specialibus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces under the Central Excise Act, 1944 and The Customs Act, 1962 are bailable since the offences were non-cognizable under the provisions of the Act itself. The offences and penalties pertained to punishment which may extend to 3 years or to 7 years and as per Section 18 of the Central Excise Act, the provisions of Cr.P.C. would 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 (AIR 1992 SC 604) (supra) would not be applicable in view of the findings recorded since admittedly, the offences are punishable for more than 3 years and in such case, it would be a cognizable offence and the authorities under Section 19 would have the power to arrest in view of the special procedure prescribed under the Act. Similarly, the judgment in Kishan Lal Thakur's case (supra) would not be applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. In our considered opinion, the view taken in O.P. Gupta' and M.K.S. Abu Bucker 35 and also of the Kerala High Court and Gujarat High Court is the logical and correct view and we approve the same for the reasons we have given in the preceding part of this judgment. We, indeed, see no imponderability in construing Section 35(2) of FERA and Section 104(2) of Customs Act that the said provisions replace Section 167(1) and serve as a substitute thereof substantially satisfying all the required basic conditions 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 sub-section (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 46 of the PMLA. 50. It was also noticed that investigation was permissible under various regulations like the Foreign Exchange Regulation Act, 1973, Customs Act, 1962, The erstwhile Gold (Control) Act, 1968, The Prevention of Food Adulteration Act, 1954 and 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, therefore, no such fault can be found with the procedure which has been adopted by the respondents. 51. The Apex Court in Jeewan Kumar Raut and another v. Central Bureau of Investigation, 2009 (7) SCC 526 : (AIR 2009 SC 2763) also noticed that in an investigation conducted by the CBI under the Transplantation of Human Organs Act, 1994, (in short 'TOHO') a complaint had been filed in view of the specific provisions unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the matter, the police report being not a complaint and vice-versa, it was obligatory on the part of the respondent to choose the said method invoking the jurisdiction of the Magistrate concerned for taking cognizance of the offence only in the manner laid down therein and not by any other mode. The procedure laid down in TOHO, thus, would permit the respondent to file a complaint and not a report which course of action could have been taken recourse to but for the special provisions contained in Section 22 of TOHO. 52. A Division Bench of this Court in Naveed Masih v. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... official to record statement, supply copy of such statement, as part of the report under Section 173 of the Code, so as to enable the defence to contradict 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 list of witnesses to be examined. Since there is no obligation to record statements by the empowered Officer analogous to Section 161 of the Code, the disclosing the names of the witnesses along with the complaint is compliance of Chapter XV of the Code. The providing of different procedures for filing of complaint by the empowered officers and a report by the police cannot be said to discriminatory as both of these procedures is to enable the court to pronounce on the guilt of an accused. 41. Therefore, we do not find any merit in the ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it accompli before the final hearing. 22. The observations and directions in Kapil Hingorani (I) and (II) being interim directions based on tentative reasons, restricted to the peculiar facts of that case involving an extraordinary situation of human rights violation resulting in starvation deaths and suicides by reason of non-payment of salaries to the employees of a large number of public sector undertakings for several years, have no value as precedents. The interim directions were also clearly in exercise of extraordinary power under Article 142 of the Constitution. It is not possible to read such tentative reasons, as final conclusions, as contended by the respondent. If those observations are taken to be a final decision, it may lead to every disadvantaged group or every citizen or every unemployed person, facing extreme hardship, approaching this Court or the High Court alleging human right violations and seeking a mandamus requiring the State, to provide him or them an allowance for meeting food, shelter, clothing, salary, medical treatment, and education, if not more. Surely that was not the intention of Kapila Hingorani (I) and Kapila Hingorani (II) : (AIR 2005 SC 98 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . There is no doubt that PMLA deals with the offence of money laundering and the Parliament has enacted this law as per commitment of the country to the United Nations General Assembly. PMLA is a special statute enacted by the Parliament for dealing with money laundering. Section 5 of the Code of Criminal Procedure. 1973 clearly lays down that the provisions of the Code of Criminal Procedure will not affect any special statute or any local law. In other words, the provisions of any special statute will prevail over the general provisions of the Code of Criminal Procedure in case of any conflict. [29] Section 45 of the PMLA starts with a non obstante clause which indicates that the provisions laid down in Section 45 of the PMLA will have overriding effect on the general provisions of the Code of Criminal Procedure in case of conflict between them. Section 45 of the PMLA imposes following two conditions for grant of bail to any person accused of an offence punishable for a term of imprisonment of more than three years under Part-A of the Schedule of the PMLA: (i) That the prosecutor must be given an opportunity to oppose the application for bail; and (ii) That the Court must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fact remains that Section 24 of the SEBI Act is inclusive in nature and also includes Section 12A within its ambit and scope. Further, on perusal of various offences listed in the Schedule in 28 Paragraphs, it could be seen that only penal provisions of the Statutes have been incorporated in the Schedule. There is no denying the fact that Section 24 of the SEBI Act is a penal provision of inclusive nature and thus it clearly reflects the legislative intent of a scheduled offence under PMLA. Admittedly, the complaint was filed by SEBI against the appellant on the allegation of committing offence punishable under Section 4 of PMLA. The complaint reveals that SEBI received a letter from the Ministry of Corporate Affairs, Office of the Registrar of Companies ( ROC ), West Bengal, with reference to Rose Valley in which the ROC had stated that Rose Valley has repeatedly issued debentures in the years 2001-2002, 2004-2005, 2005-2006 and 2007-2008 to more than 49 persons in each financial year without filing offer documents with either the ROC or the SEBI and requested SEBI to investigate into the matter. From the information provided by ROC, it was observed that Rose Valley had raised a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the appellant under Section 24 of SEBI Act is still pending for hearing before the High Court. We have noted that Section 45 of the PMLA will have overriding effect on the general provisions of the Code of Criminal Procedure in case of conflict between them. As mentioned earlier, Section 45 of the PMLA imposes two conditions for grant of bail, specified under the said Act. We have not missed the proviso to Section 45 of the said Act which indicates that the legislature has carved out an exception for grant of bail by a Special Court when any person is under the age of 16 years or is a woman or is a sick or infirm. Therefore, there is no doubt that the conditions laid down under Section 45A of the PMLA, would bind the High Court as the provisions of special law having overriding effect on the provisions of Section 439 of the Code of Criminal Procedure for grant of bail to any person accused of committing offence punishable under Section 4 of the PMLA, even when the application for bail is considered under Section 439 of the Code of Criminal Procedure. [34] We have further noted the directions given by this Court in Subrata Chattoraj v. Union of India and Ors., (2014) 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16, 2013 : (2014 Cri. L.J. 2556 (Ori.)). Therefore, taking into account all these propositions of law, we feel that the application for bail of the appellant should be seen at this stage while the appellant is involved in the economic offence, in general, and for the offence punishable under Section 4 of the PMLA, in particular. 59. The decision of the Supreme Court referred to above would also make it clear that, by no stretch of imagination, the offence under the PMLA could be termed as bailable and non-cognizable. 60. Having considered all the relevant aspects of the matter threadbare, I have reached to the conclusion that none of the fundamental rights, or any legal rights of any of the applicants could be said to have been infringed in any manner. So far as the issue as regards the admissibility and evidentiary value of the statement recorded under section 50 of the PMLA is concerned, the same would be looked into by the Trial Court. I have reached to the conclusion that the procedure which has been adopted for the purpose of proceeding against the applicants under the PMLA has not deprived any of the applicants of their personal liberty as embodied under Article 21 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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