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TMI Blog2023 (2) TMI 1102X X X X Extracts X X X X X X X X Extracts X X X X ..... Sr. Adv. with Mr. Ashwani Taneja, Mr. Divyam Aggarwal, Mr. Udit Atul, Mr. Prabhat Kumar Rai, Ms. Shreya, Ms. Peeha Verma, Mr. Mayank, Advs., Mr. Dayan Krisyhnan, Sr. Adv. With Mr. Vivek Jain, Mr. Vaibhav Yadav, Mr. Amit Anand and Ms. Devyani, Advs., Mr. Amit Anand and Ms. Devyani, Advs., Mr. Abhimanyu Bhandari, Ms. Roohe Hina, Ms. Ananya Sikri, Mr. Akarsh Sharma, Advs., Mr. Anirudh Bakhru, Mr. Ayush Puri, Mr. Tejaswini, Ms. Umang Tyagi And Mr. Prateek Kumar, Advs. For the Respondent : Ms. Pratima N. Lakra, CGSC with Ms. Vrinda Baheti, Adv. for UOI, Mr. Kanhaiya Sehgal, Ms. Priya Garg, Mr. Chetan Bhardwaj, Mr. Gurjas Puri Singh, Mr. Prasanna, Advs. for R-3 and 4., Mr. Anurag Ahluwalia, CGSC with Mr. Danish Khan, Adv. for UOI., Mr. Zoheb Hossain, Sr. Standing Counsel with Mr. Vipul Agarwal and Mr. Parth Semwal, Advs. for Income Tax Department., Mr. Satya Ranjan Swain, Sr. Panel Counsel, Mr. Sahaj Garg, G.P. with Mr. Kautilya Birat, Advs. for R-3. Mr. Zoheb Hossain, Sr. Standing Counsel with Mr. Vipul Agarwal and Mr. Parth Semwal, Advs. for Income Tax Department., Mr. Shoumendu Mukherji, Sr. Panel Counsel with Ms. Megha Sharma, Mr. Prashant Rawat, G.P. for UOI. Mr. Zoheb Hossain, Sr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f these provisions in the present litigation. Such assumption cannot be made when this Court is called upon to answer whether the impugned provisions are attracted to those transactions that have taken place before 2016." Dealing with the retrospective operation of Sections 3 and 5 of the enactment, the Supreme Court held as follows:- "57. Coming back to the 1988 Act, the two provisions with which we are concerned are Sections 3 and 5 of 1988 Act. They are required to be separately analysed herein. At the outset, we may notice that the enactment was merely a shell, lacking the substance that a criminal legislation requires for being sustained. The reasons for the same are enumerated in the following paragraphs 58. First, the absence of mens rea creates a harsh provision having strict liability. Such an approach was frowned upon by the 57th Law Commission Report as concerns of tax evasion or sham transactions in order to avoid payment to creditors were adequately addressed by the existing provisions of law. Even the 130th Law Commission Report did not expressly rule out the inclusion of mens rea. The legislative move to ignore earlier Law Commission Reports without there being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of property cannot include the power of tracing, which needs an express provision. 66. Such delegation of power to the Authority was squarely excessive and arbitrary as it stood. From the aforesaid, the Union's stand that the 2016 Act was merely procedural, cannot stand scrutiny. 67. In any case, such an inconclusive law, which left the essential features to be prescribed through delegation, can never be countenanced in law to be valid under Part III of the Constitution. The gaps left in the 1988 Act were not merely procedural, rather the same were essential and substantive. In the absence of such substantive provisions, the omissions create a law which is fanciful and oppressive at the same time. Such an overbroad provision was manifestly arbitrary as the open texture of the law did not have sufficient safeguards to be proportionate. 69. From the above, Section 3 (criminal provision) read with Section 2(a) and Section 5 (confiscation proceedings) of the 1988 Act are overly broad, disproportionately harsh, and operate without adequate safeguards in place. Such provisions were still-born law and never utilized in the first place. In this light, this Court finds that Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re criminal sanction, handed down in the absence of the procedural guarantees afforded to him under article 6 of the Convention, in particular his right to be presumed innocence [sic]. The court does not accept that view. In its opinion, the forfeiture order was a preventive measure and cannot be compared to a criminal sanction, since it was designed to take out of circulation money which was presumed to be bound up with the international trade in illicit drugs. It follows that proceedings which led to the making of the order did not involve "the determination ... of a criminal charge (see Raimondo v. Italy [1994] 18 EHRR 237, 264 at para 43; and more recently Arcuri v. Italy (Application No 52024/99), inadmissibility decision of 5th July 2001..."" 129. Looked at from a different angle, continuation of only the civil provisions under Section 4, etc., would mean that the legislative intention was to ensure that the ostensible owner would continue to have full ownership over the property, without allowing the real owner to interfere with the rights of benamidar. If that be the case, then without effective any enforcement proceedings for a long span of time, the rights that have cry ..... X X X X Extracts X X X X X X X X Extracts X X X X
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