Courts cannot direct ED to register ECIR solely on predicate offence existence; ED's satisfaction on proceeds of crime required.

ORDER :

1. The writ petition is filed seeking for a direction, to direct the 4^th respondent/Enforcement Directorate to register an Enforcement Case Information Report [ECIR] under the Prevention of Money Laundering Act, 2002 [hereinafter referred to as “the PML Act”] against respondents 5 and 6.

2. The petitioner is a practising advocate and a sitting Member of the Parliament (Rajya Sabha) from the ruling party of the State. The 5^th respondent is the Member of the Legislative Assembly from Thirunelveli Assembly Constituency. The 6^th respondent was a former State General Secretary (Organisation) for the Tamil Nadu Bharatiya Janata Party.

3. According to the petitioner, the respondents 5 and 6, had involved in an electoral offence case by transporting huge sum of money to the tune of nearly Rs.4 crores which was intended for voter inducement. Based on the complaint, an FIR was registered in Tambaram P.S. Crime No.177/2024, and later, it was transferred to CBCID and reassigned as Crime No.04/2024, for offences under Sections 171(C), 171(E), 171(F) and 188 IPC and the CBCID has thereafter altered the Sections to one under Sections 171(C), 171(E), 171(F), 120(b), 109, 420 read with 511 and 188 IPC, which are scheduled offences.

4. It is further stated that since the illegal gains generated through the aforesaid offences primarily constitute proceeds of crime as defined under Section 2(1)(u) of the PML Act and as the case has been registered for the scheduled offence under the PML Act, the Enforcement Directorate [ED] is empowered to register an ECIR and investigate the case. However, the failure on the part of the ED to register the ECIR purely on political consideration is unjustified and hence, the petitioner had preferred this writ petition seeking for a direction to register the ECIR by the ED.

5. Mr.N.R.Elango, learned Senior Counsel appearing for the petitioner, mainly by placing reliance on a decision of the Hon’ble Supreme Court in the case of Balaji v. Karthik Desari,  (2024) 19 SCC 625, contended that once illegal gratification is acquired by a public servant, it would represent proceeds of crime, generated through a criminal activity in respect of a scheduled offence, which is an act of money laundering and no fishing expedition is required and the ED ought to have registered the ECIR.

6. Learned Senior Counsel further submitted that when the predicate offence has been registered for scheduled offences, the ED had not registered the ECIR and proceeded with the investigation, thereby failing to discharge their lawful duties. The ED cannot choose to register the case based on political considerations and the 4^th respondent is bound to register the ECIR and proceed with the investigation to unearth the proceeds of crime.

7. Per contra, Mr.N.Ramesh, learned Special Public Prosecutor (ED) taking notice for the 4^th respondent, contended that it is a politically motivated case, in as much as the petitioner from the ruling party, seeks for registration of a case against the members of opposition party. He further submitted that the petitioner is a third party, who is neither a complainant nor in any way connected with the scheduled offence, and he has no locus standi to file the present writ petition. The writ petition is also not a public interest litigation and the petitioner had not even made any representation in this regard and therefore only in view of the ensuing election, the petition is filed for political mileage.

8. The learned counsel further submitted that, as per the decision of th