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TMI Blog2023 (8) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 1 and 2 in connection with this case. 2. The order dated 20.04.2022, reflects that the Assistant Director of ED, (Niraj Kr. Singh) vide petition no. 363/2022 dated 10.03.2022 had prayed for interrogation of the respondents lodged in the Presidency Correctional Home, Kolkata, in pursuance of the investigation of the aforementioned case. The defence had raised objection stating that the case was already been fixed for evidence and the intention of the I/O to interrogate in furtherance of investigation could not be accepted. 3. On the contrary, the learned Special P.P. for the E.D had submitted that the prosecution had a prayer for filing additional/supplementary complaint and during the course of further investigation, some properties have been identified by the I/O, which are proceeds of the crime. It was held by the trial Court that on 12.07.2018, the ED had filed a complaint against the accused persons/respondents and therefore, cognizance was taken under Section 4 of the Prevention of Money Laundering Act, 2002, (PMLA for short). On 29.12.2021, a formal charge was framed and this case was posted for evidence. As trial had already commenced, petition with prayer for further i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er co-accused already named in the complaint petition. 8. It is submitted that during the course of further investigation, under the provisions of PMLA, 2002, other evidences, regarding utilization and integration of proceeds of crime into financial system, collected from gullible public, by commission of the alleged offences was unearthed necessitating the further investigation of the present respondents. Under the compelling circumstances, the petition no. 363/2022 dated 10.03.2022 in connection with Special (PMLA) Case No. 18/2018 before the learned Special Judge, Assam, which was rejected vide the order dated 20.04.2022. 9. It is submitted that the Hon'ble Supreme Court in Vinubhai Haribhai Malaviya and Others Vs. State of Gujarat and Another reported in (2019) 17 SCC 1, has discussed the power of the Court in relation to further investigation. Law has been laid down at postPage cognizance stage that until trial commences, the power of further investigation can be directed and this power can also be exercised suo motu by the Magistrate himself, depending on the facts of each case. It is submitted that it was erroneously held by the trial Court that in the case at hand, the ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appreciate that Section 2 (na) of the PMLA defines "investigation" as including all the proceedings under the Act conducted by the Director or by an authority authorised by the Central Government under this Act for the collection of evidence. 13. The provision of Section 65 of PML Act states that "the provisions of Cr.P.C shall apply, in so far 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". Section 71 of the PMLA, 2002 was also invoked by the learned trial Judge who failed to appreciate clause (2) (3) and (4) of Section 50 of the PMLA 2002. It is contended that the impugned order is bad in law and is liable to be set aside and quashed. 14. The learned counsel for the respondents laid stress in his argument that the petition is vague as the proceeds of the crime, which allegedly surfaced during the course of the trial has not been specifically described. The evidence of PW-1 has already been recorded. No property was attached under Section 5 of the Act. Without mentioning the quantum of the proceeds of crime, further investigation relating to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1), Section 2(h), and Section 173(8) of the CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi (supra). Therefore, to the extent that the judgments in Amrutbhai Shambubhai Patel (supra), Athul Rao (supra) and Bikash Ranjan Rout (supra) have held to the contrary, they stand overruled. Needless to add, Randhir Singh Rana v. State (Delhi Administration) (1997) 1 SCC 361 and Reeta Nag v. State of West Bengal and Ors. (2009) 9 SCC 129 als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be confiscated and then it would vest in the Central Government as per Section 9 of the 2002 Act subject to the outcome of the trial of the offence under the 2002 Act (i.e., Section 3 of offence of money-laundering punishable under Section 4). Suffice it to observe that the expression "proceedings" must be given expansive meaning to include actions of the authorities (i.e., Section 48) and of the Adjudicating Authority (i.e., Section 6), including before the Special Court (i.e., Section 43). 247. The task of the Director or an authority authorised by the Central Government under the 2002 Act for the collection of evidence is the intrinsic process of adjudication proceedings. In that, the evidence so collected by the authorities is placed before the Adjudicating Authority for determination of the issue as to whether the provisional attachment order issued under Section 5 deserves to be confirmed and to direct confiscation of the property in question. The expression "investigation", therefore, must be regarded as interchangeable with the function of "inquiry" to be undertaken by the authorities for submitting such evidence before the Adjudicating Authority. 248. In other wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been added which is obviously a clarificatory amendment. That is evident from the plain language of the inserted Explanation itself. The fact that it also includes any property which may, directly or indirectly, be derived as a result of any criminal activity relatable to scheduled offence does not transcend beyond the original provision. In that, the word "relating to" (associated with/has to do with) used in the main provision is a present participle of word "relate" and the word "relatable" is only an adjective. The thrust of the original provision itself is to indicate that any property is derived or obtained, directly or indirectly, as a result of criminal activity concerning the scheduled offence, the same be regarded as proceeds of crime. In other words, property in whatever form mentioned in Section 2(1)(v), is or can be linked to criminal activity relating to or relatable to scheduled offence, must be regarded as proceeds of crime for the purpose of the 2002 Act. It must follow that the Explanation inserted in 2019 is merely clarificatory and restatement of the position emerging from the principal provision [i.e., Section 2(1)(u)]. 251. The "proceeds of crime" being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on "proceeds of crime", it would inevitably include other property which may not have been derived or obtained as a result of any criminal activity relatable to the scheduled offence. As noticed from the definition, it essentially refers to "any property" including abroad derived or obtained directly or indirectly. The Explanation added in 2019 in no way travels beyond that intent of tracking and reaching upto the property derived or obtained directly or indirectly as a result of criminal activity relating to a scheduled offence. Therefore, the Explanation is in the nature of clarification and not to increase the width of the main definition "proceeds of crime". The definition of "property" also contains Explanation which is for the removal of doubts and to clarify that the term property includes property of any kind used in the commission of an offence under the 2002 Act or any of the scheduled offences. In the earlier part of this judgment, we have already noted that every crime property need not be termed as proceeds of crime but the converse may be true. Additionally, some other property is purchased or derived from the proceeds of crime even such subsequently acquired property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y for the crime of money-laundering. The general scheme of the law of this land is that any law which is questioned is presumed to be unblemished and within the confines of the Constitutional principles so laid down within the Constitution. Yet, as the arguments, challenges laid against the interpretation of the impugned section are so many we find it necessary to see how India embarked on the framing of the definition of "money-laundering" under Section 3 of the 2002 Act. Thereafter, we will see how the Parliament over the years responded to changes and suggestions from the outside world, notably the FATF. Thus, in seriatim we endeavour to see the international Conventions which led to the evolution of money-laundering, based on which the Government decided to enact the law, followed by the FATF recommendations which have led to the amendments, then the debates in the Parliament of India followed by the law of the land as laid down by this Court." 18. Reverting back to this case, it is apt to reiterate that the so called proceeds of the crime was not specifically described by the petitioner. The procedure of investigation, framing of charge and recording of evidence cannot be en ..... X X X X Extracts X X X X X X X X Extracts X X X X
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