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IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. SATHISH KUMAR, J.
Shri Ajay Kumar Gupta & Ors. - Petitioners
Versus
Adjudicating Authority (PMLA) & Ors. - Respondents
Crl.O.P.Nos.10497 and 10500 of 2017
Decided On : 13-07-2017
Constitution of India,1950 - Article 20(1) – Criminal Procedure Code ,1973 – Section 173(2),173,3,4 and 2(u) – Indian Penal Code,1860-Section 109 -Prevention of Corruption Act 1988, Section 13(2) r/w 13(1)(e) - Prevention of Money Laundering Act, 2002 - First petitioner was working as an Assistant Commissioner of Customs and Central Excise, Customs House, and he resigned from services with effect - While he was working as an Appraiser in Customs House,3rd respondent, Deputy Superintendent of Police, CBI had filed an FIR for alleged possession of assets and pecuniary resources in name of First Petitioner and in name of his family members for alleged commission of offences was also filed by 3rd respondent before the Principal Special Judge for CBI Cases, in C.C.No.18 for offences punishable against 1st petitioner and Section 109 of I.P.C. r/w 13(2) r/w 13(1)(e) of Prevention of Corruption Act, 1988 against 2nd petitioner - 3rd and 4th petitioners were not arrayed as accused in the above C.C.No.18 - It is contention of petitioners that the alleged offences as per the charge Sheet have allegedly committed and during this period not even in force – Held, this court is of view that if retrospective effect is given to any statute of any penal nature, it will be directly in conflict with the fundamental rights of the citizen enshrined - Admittedly, 2nd respondent filed case only based on charge sheet of the CBI, who have not conducted any enquiry on their own - In fact, all documents are original documents of alleged proceeds of crime, which are in the custody of the CBI Court - When entire documents are in custody of the Court, there cannot be any reason to believe that the properties will be dealt with in any other manner - Impugned order was as if 1st petitioner not able to offer any satisfactory explanation during examination - Therefore, the attachment officer has passed an order without a reason to believe that the proceeds of crime are likely to be transferred or disposal. In the absence of any sufficient reason, arriving to such conclusion by mere reproducing the words - Admittedly, in this case, entire documents are available and the properties are in the custody of the court - Therefore, the order of attachment is not maintainable - Learned Special Public Prosecutor for Enforcement Directorate appearing for Respondents 1 and 2 relied upon the citations of the Honourable Supreme Court, on a careful perusal, the judgments are not with regard to the applicability of Scheduled offences of the Money Laundering Act. Therefore, the authorities cited by the learned counsel for respondents is no way helpful to the respondents, to establish their case - In result, petitions are ordered as prayed for - Connected M.Ps are closed.
1. Crl.O.P.No.10497 of 2017 is filed to quash the Provisional Attachment Order No.09/2017 dated 07.04.2017 in ECIR/CEZO/08/ 2015 Chennai Zone passed by the second respondent, whereas Crl.O.P.No.10500 of 2017 is filed to quash the Original Complaint in O.C.No.855 of 2017 filed by the second respondent under the Prevention of Money Laundering Act, 2002.
2. The brief facts leading to file these petitions are as follows:
2. (a) The first petitioner was working as an Assistant Commissioner of Customs and Central Excise, Customs House, Chennai and he resigned from the services with effect from 14.4.2011. While he was working as an Appraiser in the Customs House, Chennai, the 3rd respondent, Deputy Superintendent of Police, CBI had filed an FIR No.RCMA1/2005A/0031 on 29.06.2005 for alleged possession of assets and pecuniary resources in the name of First Petitioner and in the name of his family members for alleged commission of offences under Section 13(2) r/w 13(1)(e) of the Prevention of Corruption Act 1988. A final report under Section 173(2) of Cr.P.C.was also filed on 13.01.2009 by 3rd respondent before the Principal Special Judge for CBI Cases, Chennai, in C.C.No.18 of 2009 for the offences punishable under Section 13(2) r/w 13(1)(e) of the Prevention of Corruption Act, 1988 against 1st petitioner and Section 109 of I.P.C. r/w 13(2) r/w 13(1)(e) of Prevention of Corruption Act, 1988 against 2nd petitioner. Check period was shown as 01.05.1997 to 30.06.2005. 3rd and 4th petitioners were not arrayed as accused in the above C.C.No.18 of 2009.
2. (b) Trial is under progress in the Court of XIV Additional Special Judge for CBI Cases. Presently the Investigating Officer, P.W.74 of the case is being cross-examined by the defence side. In the meanwhile, after six years of the aforesaid alleged offence u/s 13(2) r/w Sec.13(1)(e) of the Prevention of Corruption Act, 1988, which is a Scheduled Offence under Prevention of Money Laundering Act, 2nd respondent registered an Enforcement Case Information Report and also sent summons to the petitioners 1 & 2.
2. (c) It is the contention of the petitioners that the alleged offences as per the charge Sheet have allegedly committed between 1.5.1997 to 30.06.2005 and during this period Prevention of Money Laundering Act, 2002 was not even in force. The Act came into force on 01.07.2005 through the notification published in the Gazette of India dated 1.4.2005. The petitioners also gave a reply to the effect that as on 1.7.2005 Section 13 of the Prevention of Corruption Act do not find place in the scheduled offences list under Prevention of Money Laundering Act. It was also pointed out to the office of the 3rd respondent by the petitioners' reply that Section 13 of the Prevention of Corruption Act 1998 was added in the list of scheduled offences only on 1.6.2009. The first petitioner appeared before the Assistant Director on 20.06.2016 and his statement was recorded and the 2nd petitioner appeared on 21.6.2016 and her statement was also recorded. She has stated that all the original documents of properties were seized by the CBI, ACB, Chennai and the same are in the custody of the 14th Additional Special Judge for CBI Cases. However, 1st and 2nd respondents did not consider any of the submissions made by the petitioners and the above impugned Provisional attachment order has been passed. 3rd and 4th petitioners were minors, born on 14.08.1993 and 5.4.1996 respectively.
2. (d) The second respondent provisionally attached movable properties in the name of 3rd and 4th petitioners. 3rd and 4th petitioners were minor at the time of the alleged offence. The list of properties provisionally attached in the name of 3rd petitioner is as follows:
Sl.No
Referred in CBI Charge Sheet in CC 18/2009
Description
Held in Name/Names
Amount
1
85
STDR No.356494 Dated 26.12.2003 maturing on 2
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