APPELLATE TRIBUNAL UNDER SAFEMA AT NEW DELHI

1.MP-PMLA-12085/BNG/2023 (Stay)

FPA-PMLA-6030/BNG/2023 M/s Indians for Amnesty International Trust … Appellant

2. MP-PMLA-8995/BNG/2021 (Stay)

FPA-PMLA-4274/BNG/2021 M/s Amnesty, International India Pvt .Ltd … Appellant

3. MP-PMLA-8995/BNG/2021 (Stay)

FPA-PMLA-4275/BNG/2021 M/s Indians For Amnesty International Trust … Appellant

4. MP-PMLA-12418/BNG/2023 (Stay)

MP-PMLA-11994/BNG/2023 (Misc.)

FPA-PMLA-4285/BNG/2021 Kotak Mahindra Bank Limited … Appellant Versus The Deputy Director, Directorate of Enforcement, Bengaluru … Respondent Advocates/Authorized Representatives who appeared For the Appellants : Mr. Arshdeep Singh Khurana, Ms. Tannavi Sharma, Mr. Nikhil Pawar Mr. Sulakshan V., Advocates (for Sr. no. 1-3) &

Ms. Shanjali Gupta Mr. Aman Vasisth, Advocates (for Sr. no. 4)

For the Respondent : Mr. Pankaj Pandey, Advocate (for Sr. no. 1-3) &

Mr. Chandra Prakash Mr. Abhinav Kumar, Advocates (for Sr. no. 4)

CORAM JUSTICE MUNISHWAR NATH BHANDARI : CHAIRMAN SHRI RAJESH MALHOTRA : MEMBER

ORDER

18.11.2024 By these appeals, a challenge has been made to the order passed by the Adjudicating Authority confirming the attachment of the property.

The learned counsel for the appellant submitted that ECIR was recorded however without a scheduled offences other than under Section 120(B) of Indian Penal Code (in short IPC). The offence under Section 120(B) cannot stand alone unless there is another scheduled offence. In the instant case, there is no scheduled offence other than under Section

120(B) of IPC. The prayer is accordingly to set aside the Impugned Order.

The learned counsel for the respondent has contested the appeal and given brief facts of the case as to why the FIR was registered by the CBI. It was thereupon that ECIR was recorded. The prayer was accordingly made not to cause interference in the Impugned Order.

We have considered the rival submissions and find that other than Section 120(B) of IPC, there is no other scheduled offence disclosed in the FIR. The FIR was registered on 05.11.2019 for the offence u/s 120(B) and read with Section 11, 35 and 39 of Foreign Contribution Regulation Act, 2010 (in short ‘the Act of 2010). The offences under the Regulation of 2010 are not scheduled offence under the Act of 2002 and Section 120 (B) cannot stand alone in the light of the judgement of the Apex Court in the case of Pavana Dibbur v/s Department of Enforcement reported in 2023 [SCC Online SC 1586]. The relevant paras of the judgement (supra) are quoted herein:

“21. In this case, we are not called upon to decide the validity of the Schedule or any part thereof. The question is whether the offence under Section 120-B of IPC, included in Paragraph 1 of the Schedule, can be treated as a scheduled offence even if the criminal conspiracy alleged is to commit an offence which is not a part of the Schedule. This issue did not arise for consideration in the case of Vijay Madanlal Choudhary.

22. Section 120-A of IPC defines “criminalconspiracy”, which reads thus:

“120A. Definition of criminal conspiracy.—When two or more persons agree to do, or cause to be done,— (1) an illegal act, or an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

Explanation.—It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.”

23. Section 120-B of IPC provides for punishment for a criminal conspiracy which reads thus:

“120B. Punishment of criminal conspiracy.— (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspir