9911796707
TMI Blog2024 (3) TMI 582X X X X Extracts X X X X X X X X Extracts X X X X ..... d against all the accused before the Special Court constituted under the PML, Act. Thereby, after the framing of charges and the production of chargesheet, the co-accused Mr. Ramesh Mendola filed a criminal revision No. 1011/2016 and the petitioner filed the CRR No. 996/2016 before this Court. This Court vide order dated 07.04.2017 passed in CRR No. 1011/2016 has allowed the petition and quashed the charges framed against the accused Ramesh Mendola, and this Court in light of the aforementioned order disposed of the CRR No. 996/2016 filed by the petitioner vide order dated 07.04.2017 by directing the trial Court to decide the petitioner's application afresh in light of order dated 07.04.2017 passed in CRR No. 1011/2016. (II) Thereafter, the petitioner's case was taken up by the learned trial Court and vide order dated 23.05.2018 the question of framing of charges was again examined in light of the order passed by this court in CRR No. 1101/2016. The trial Court after thorough examination of the order passed by the Division Bench concluded that no unlawful gain has been obtained by the petitioner and no unlawful loss was caused to the Government. Accordingly there was no c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hu Joshi learned counsel for the respondent vehemently opposed the prayer and submitted that the case of the petitioner is based on the different footing if being compared with the case of co-accused Mr. Ramesh Mendola, therefore, the trial Court has not committed any error in passing the impugned order and supported the order passed by the trial Court and prayed that the present petitioner shall not be discharged from the charges. 7. Heard the learned counsel for the parties and perused the record. 8. The controversy in the present case has been settled by the Apex Court in the case of Vijay Madanlal Choudhary (supra) and it would be apt to reproduce the relevant extract: "33. Tersely put, it is only such property which is derived or obtained, directly or indirectly, as a result of criminal activity relating to a scheduled offence can be regarded as proceeds of crime. The authorities under the 2002 Act cannot resort to action against any person for money-laundering on an assumption that the property recovered by them must be proceeds of crime and that a scheduled offence has been committed, unless the same is registered with the jurisdictional police or pending inquiry by way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of crime and is not limited to the happening of the final act of integration of tainted property in the formal economy. The Explanation inserted to Section 3 by way of amendment of 2019 does not expand the purport of Section 3 but is only clarificatory in nature. It clarifies the word "and" preceding the expression projecting or claiming as "or"; and being a clarificatory amendment, it would make no difference even if it is introduced by way of Finance Act or otherwise. (b) Independent of the above, we are clearly of the view that the expression "and" occurring in Section 3 has to be construed as "or", to give full play to the said provision so as to include "every" process or activity indulged into by anyone. Projecting or claiming the property as untainted property would constitute an offence of money-laundering on its own, being an independent process or activity. (c) The interpretation suggested by the petitioners, that only upon projecting or claiming the property in question as untainted property that the offence of Section 3 would be complete, stands rejected. (d) The offence under Section 3 of the 2002 Act is dependent on illegal gain of property as a result of crimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarded as manifestly arbitrary or unconstitutional. (xii) (a) The proviso in Clause (a) of sub-section (1) of Section 44 of the 2002 Act is to be regarded as directory in nature and this provision is also read down to mean that the Special Court may exercise judicial discretion on case-to-case basis. (b) We do not find merit in the challenge to Section 44 being arbitrary or unconstitutional. However, the eventualities referred to in this section shall be dealt with by the Court concerned and by the Authority concerned in accordance with the interpretation given in this judgment. (xiii) (a) The reasons which weighed with this Court in Nikesh Tarachand Shah for declaring the twin conditions in Section 45(1) of the 2002 Act, as it stood at the relevant time, as unconstitutional in no way obliterated the provision from the statute book; and it was open to the Parliament to cure the defect noted by this Court so as to revive the same provision in the existing form. (b) We are unable to agree with the observations in Nikesh Tarachand Shah distinguishing the enunciation of the Constitution Bench decision in Kartar Singh; and other observations suggestive of doubting the percept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Special Court, it is open to the Special Court to look into the relevant records presented by the authorised representative of ED for answering the issue of need for his/her continued detention in connection with the offence of money-laundering. (xix) Even when ED manual is not to be published being an internal departmental document issued for the guidance of the Authorities (ED officials), the department ought to explore the desirability of placing information on its website which may broadly outline the scope of the authority of the functionaries under the Act and measures to be adopted by them as also the options/remedies available to the person concerned before the Authority and before the Special Court. (xx) The petitioners are justified in expressing serious concern bordering on causing injustice owing to the vacancies in the Appellate Tribunal. We deem it necessary to impress upon the executive to take corrective measures in this regard expeditiously. (xxi) The argument about proportionality of punishment with reference to the nature of scheduled offence is wholly unfounded and stands rejected. 9. In view of the aforesaid pronouncement, the Apex Court has ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
