IMPORTANT POINT
The court established that without a predicate offence, an ECIR under the PMLA cannot be maintained, reinforcing the principle that money laundering charges are contingent upon the existence of a scheduled offence.

JUDGMENT/ORDER

REVATI MOHITE DERE, J. - Heard learned counsel for the parties in both the petitions.

2. Rule. Rule is made returnable forthwith, in both the aforesaid petitions, with the consent of the parties and is taken up for final disposal. Mr. Shirsat waives notice on behalf of the respondent No.1 - ED and the learned A.P.P waives notice on behalf of the respondent No.2 -State in both the petitions.

3. By these petitions, preferred under Article 226 of the Constitution of India and under Sec. 482 of the Code of Criminal Procedure, the petitioner in both the petitions seek identical substantive relief, which reads thus;

<WXY>"18. .... .... .... .... (a) issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction under Article 226 of the Constitution of India, 1950, calling the records of the Respondent No.1 pertaining to the ECIR/MBZO-II/01/2020 dtd. 20/2/2020 ("Impugned ECIR") (Exhibit A) and quash and / or set aside the ECIR/MBZO-II/01/2020 dtd. 20/2/2020 ("Impugned ECIR") (Exhibit A), the investigation carried thereunder and all proceedings and actions emanating therefrom against the Petitioner, as being illegal and contrary to law."</WXY>

4. Learned senior counsel for the petitioner in both the petitions submit that the ECIR registered by the respondent No.1 - The Directorate of Enforcement ("ED") does not survive, inasmuch as, there is no scheduled offence, which is a condition precedent for initiating ED proceeding. In support of their submission, learned senior counsel relied on the following judgments: -

(i) Harish Fabiani and Others v/s Enforcement Directorate and Others,2022 SCC OnLine Del 3121 and (ii) Criminal Appeal No.1269 of 2017 (Directorate of Enforcement v/s M/s. Obulapuram Mining Company Pvt. Ltd. and other connected appeals) decided on 2/12/2022.

5. Mr. Shirsat, learned counsel for the respondent No.1 - ED does not dispute the fact that there is no scheduled offence pending against either of the petitioners. He also does not dispute the fact that registration of a scheduled offence is a condition precedent for initiating ED proceeding. He, however submits that it is well possible, that there may be other cases against the petitioner in both the petitions, which may be registered against the petitioners. He submits that in the investigation carried out by the ED, the ED has unearthed certain irregularities in the forensic audit accounting conducted by them and as such it is well possible to keep the ECIR registered by the respondent No.1 - ED, alive.

6. Perused the papers. A few facts as are necessary to decide the aforesaid petitions are set out hereinunder :- Admittedly, the petitioner in Writ Petition No.4037 of 2022 is the husband of the petitioner in Writ Petition No.4038 of 2022. It appears that Akbar Travels India Private Limited ('Akbar Travels') had filed a private complaint in the Court of the learned Metropolitan Magistrate, Ballard Pier, Mumbai, against Jet Airways (India) Limited ('Jet Airways') and its erstwhile non-executive directors i.e. the petitioner in both the petitions, alleging offences punishable under Ss. 120B r/w 406, 420, 467, 468, 471 and 471-A of the Indian Penal Code ('IPC'). Vide order dtd. 15/2/2020, the trial Court passed an order under Sec. 156(3) of the Code of Criminal Procedure ('Cr.P.C') and directed the Senior Police Inspector of the MRA Marg Police Station, Mumbai, to register an FIR as against the petitioner in both the petitions. Pursuant thereto, on 18 th February 2020, an FIR bearing C.R. No.66 of 2020 was registered by the said police station against Jet Airways and the petitioner in both the petitions, alleging offences punishable under Ss. 406, 420, 465, 467, 468, 471 r/w 120B of the IPC. It appears that on 20/2/2020, based on the aforesaid FIR, the respondent No.1 - ED registered ECIR/MBZO-II/01/2020 under Ss. 3 and 4 of the Prevention of Money Laundering Act (PMLA), (as the aforesaid offences specified in t