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TMI Blog2015 (1) TMI 1310X X X X Extracts X X X X X X X X Extracts X X X X ..... communicated to the accused after due medical check up as undertaken and he was also produced within the stipulated time before the designated Judge under PML Act at Ahmedabad and no complaint or grievance was ever made by the petitioners about any kind of illtreatment or coercion by the offices of Directorate of Enforcement. That in execution of arrest, all procedural requirements were complied with and the accused has signed receipt of grounds for arrest and even a friend of the accused viz. Mr. . Amit Solanki, C.A. Was handed over the belongings and signed the inventory annexed to the arrest memo. That learned Designated Judge was pleased to grant custody of the petitioners for a period of 4 days and in a pro in a procedure to remand etc. and rejection of prayer of temporary bail on 09.09.2014 by the designated court and filing of prosecution complaint dated 29.10.2014 against the petitioner and competency of the Assistant Director – respondent No.3 to order arrest in compliance of Section 19(1) of PML Act surface on record, which is again in consonance with the safeguards enshrined under Article 22(1) of the Constitution of India and we find no breach of any procedural enumer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MLA so as to harmonize the same in juxtaposition with various scheduled offences [under amended Part A of the Schedule], [b] To read down, expound, deliberate and interpret the scope and perspective of Section 19 of PMLA in light of section 49(3) read with Rules notified by GSR 446[E] dated 1.7.2005, in consonance and harmony with settled constitutional mandate of Articles 14, 21 and 22 of Constitution of India as also in the context of various provisions under the Code of Criminal Procedure, 1973, as amended from to time and the Guidelines laid down by the Hon'ble Apex Court in D.K.Basu vs State of West Bengal 1997(1) SCC 416, [c] For issuance of an appropriate writ of quo warranto, calling upon Respondent No.3, who being an Assistant Director, Enforcement Directorate, appointed under Foreign Exchange Management Act, 1999, can under Section 54 of PMLA only assist any officer investigating under PMLA, to show cause as to how and under what authority has he exercised the power of arrest under Section 19 of PMLA, while effecting arrest of the Petitioner on 01.09.2014 in ECIR/01/SRT/2014, without producing till date, despite specific objection by the Petitioner [i] any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminal Application No.4672 of 2014 has filed this petition under Articles 226 and 227 of the Constitution of India, with the following prayers: [A]To strike down Section 45 of the Prevention of Money Laundering Act, 2002 [hereinafter referred to as `PMLA'] [as inserted / substituted by Amendment Act 2005 [20 of 2005] dt. 21.5.2005], as the said provision does not bear any reasonable and rational nexus with variety of Scheduled offences mentioned in the Schedule under the Act which may even be non cognizable, bailable and on much lighter pedestal, for being unreasonable and ultra vires, and consequently unconstitutional, illegal, arbitrary, discriminatory, and thus being violative of Articles 14, 19 and 21 of the Constitution of India, and this Hon'ble Court may read down, lay down, expound, interpret and deliberate upon the scope and perspective of Section 45 of PML Act so as to harmonize the same in juxtaposition with various scheduled offences [under amended Part A of the Schedule], [B] If the Hon'ble Court finds that provision of Section 45 is not ultra vires of the Article 14, 19, 21 and 22 of the Constitution of India, then to read down, expound, deliberate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [ii]The provisions of PML Act including amongst others of Section 19(1) of PML Act, which mandatorily prescribe the arrest to be made on the basis of such material in possession , on the basis of which there exists reason to believe that person is `guilty' or an offence under the PML Act; which shall be `recorded in writing'; and pursuant to arrest to inform him of the `Grounds' for such arrest, [iii] Rules notified by Central Government vide GSR 446[E], dt.1.7.2005. [iv]Notification GSR 441(E) dated 1.7.2005 issued by the Central Government appointing Director to exercise the `exclusive' power conferred under section 19 of PML Act. [v] Articles 14, 21 and 22 of the Constitution of India. [F] At the interim / ad interim stage [i] The Petitioner may please be released on regular bail in connection with Complaint NO.3 of 2014 pending in the court of Special Judge, Ahmedabad District, Ahmedabad [Rural] arising out of ECIR No.1/SRT/2014 15. [G] Dispense with filing of affidavit in support to this Petition as the Petitioner is in judicial custody. [H] For such other and further order/s in the peculiar facts of the case. 2 The facts of both the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n being summoned appeared before the respondent NO.3. He was coerced to give a confession. He was threatened that even his family members will be roped in the matter and put behind baRs.Vide impugned Arrest Order dated 1.9.2014, the petitioner was arrested by respondent No.3 purportedly in exercise of powers conferred by Section 19(1) of PMLA, while alleging to have reasons to believe that the petitioner has been guilty of offences punishable under Section 4 read with Section 3 of PMLA. This arrest was in blatant violation of the provisions of Section 19 of PMLA read with Rules notified vide GSR 446 (E), dt. 1.7.2005, Notification GSR 441(E) dated 1.7.2005, also in violation of the Guidelines framed by the Hon'ble Apex Court in D.K.Basu Vs. State of West Bengal, 1997 (1) SCC 416, and in derogation of fundamental rights conferred under the Constitution of India vide Articles 14, 21 and 22. Whereas the petitioner was coerced to give an endorsement of having been informed of the Grounds of Arrest and having understood the same, no such Grounds of Arrest were either shown or supplied to him. No witness was called to witness the petitioner's arrest and alleged oral communication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the trial Court, inter alia seeking temporary bail till final disposal of the application. 3 The case of the respondent No.3, as stated on oath, against the petitioners, is as under: 3.1 That certain information was received from the Joint Commissioner of Customs, Customs Division, Surat that companies M/s. Harmony Diamonds Pvt. Ltd., M/s. Agni Gems Pvt. Ltd. and M/s. R. A. Distributors Pvt. Ltd. have made foreign remittance on the strength of fake bills of entry without having made any imports. It was gathered that within a span of two months i.e. January and February 2014, remittances to foreign shores worth more than ₹ 1000 crore against fake import documents viz. bills of entry and invoices were made from the said accounts. Investigations have revealed that the various companies were involved in presenting fake bills of entry before the ICICI bank for foreign outward remittances and all of them have opened accounts in late December, 2013 and January, 2014. The addresses and the names of the Directors who were dummy and name lenders. 3.2 Names of the companies involved in the fraudulent remittances from their bank accounts with ICICI Bank, their fake address ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or, Navakar Building, Opp. Sumit Kumar Babel and Mahendra Kumar Ranka 085005500849 and 085005500880 176.18 3.3 Investigation have also revealed that the companies based in Hong Kong and Dubai were the beneficiaries of foreign remittances made and the following table shows the amount of rupees in crores were fraudulently remitted by the above said Indian firms. 3.4 Investigation as to who are the sources of such huge funds revealed that fake firms with dummy partners have made RTGS Credits from their respective bank accounts with Axis Bank to the ICICI Bank accounts of above mentioned companies. Sr No Name of the company Address Name of the partners 1 M/s. Aarzoo Enterprises 6/1854, PAI, Shop No. 4, Cab. No. 1, Navkar Chambers, Bhojabhai No Tekro, Mahidarpura, Surat, 395003 Faisal Reza M Ali Patel and Zahir Abbas M Patel 2 M/s. GT Traders 6/869, Ami Kunj Building, Ground Floor, Back Side, Cabin No. A, Chapariya Sheri, Mahidar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Jash Traders 349 124.56 57 126 175 79.45 11.78 922.79 M/s.GT Traders 270 154 54 66 202 87 6.33 839.33 M/s. M.D. Enterprise 88 27 0 0 92 44.85 13.65 265.5 M/s. Aarzoo Enterprise 272 64.85 47 95 155 71.66 7.35 712.86 M/s. Millennium Co 26 4.4 0 0 24 0 0 54.4 M/s. Maruti Trading 18 40 0 0 51 78.93 8.79 196.72 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms with the Axis bank were transferred to M/s. R. A. Distributors Pvt. Ltd., M/s. Riddhi Exim Pvt. Ltd., M/s. Hem Jewels Pvt. Ltd., M/s. Maa Mumbadevi Gems Pvt. ltd. M/s.M.B. Offshore Distributors Pvt. ltd., M/s. Ramshyam Exports Pvt. Ltd. and M/s. Trinetra Trading Company Pvt.ltd. He has also stated that Shri Rakesh Kothari of M/s. Riddhi Siddhi Bullion Ltd would ensure credits through RTGS were made in the firms namely, M/s. Vandana Co., M/s. Aarzoo Enterprise, M/s. GT Traders, M/s. Jash Traders, M/s. Maruti Trading, M/s.M.D. Enterprise, M/s. Millennium Co., and M/s. Natural Trading Co. from places like Mumbai, Surat and Delhi and would use the same for smuggling of diamonds and Gold. He further stated that M/s. Riddhi Siddhi Bullion Ltd. had business transactions in Dubai through Shri Raju Kothari of M/s. Riddhi Siddhi Bullion Ltd. had business transactions with M/s. Al Khayal Al Dahabi Jewellery LLC, Dubai and the said firm had reportedly made illegal transactions with the firm Al Khayal Al Dahabi Jewellery LLC, Dubai for smuggling of Gold. Role played by the Petitioner Shri Urvish D. Shah, Director of M/s. P. Umesh Chandra Co , an Angadia firm, in his statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the procurement of RTGS he stated that the man of Shri Prithviraj Kothari, Shri Anil would give cash to the petitioner and Mr. . Anil was working in the Office of Shri Prithviraj Kothari; that Mr. . Madanlal Jain and Mr. . Prithviraj Kothari would discuss the issue of handing over the cash to individual / company for the purpose of RTGS and Mr. Anil would come to him with the cash and direction that to whom the cash might be given for the purpose of making of RTGS; that thereafter as per the direction given he would hand over the concerned company / individual and they would complete the transaction by making the RTGS; that he would wait for 2 to 3 hours and in case if the phone did not come to him then it would be presumed that RTGS process was complete and in case it was not complete then the person would inform him citing the reason for non completion and it was being completed the following day; that ₹ 750 Crore in cash had been given by him to different RTGS arranging persons from the period during December 2013 to February/Mach 2014; that besides him the other person who was doing illegal transfer of money work for Shri Prithviraj Kothari were Shri Hukam Raj, Rajni Maha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ners herein were not named. Later on, when the petitioner, who appeared on being summoned was arrested by respondent NO.3 purportedly in exercise of powers conferred by Section 19(1) of the PML Act. On reasonable belief that the petitioner has been guilty of offences punishable under Section 4 read with Section 3 of PML Act, on 02.09.2014 an application was filed by respondent No.3 before the designated Judge under PML Act viz. Principal District Judge, Ahmedabad [Rural] for seeking enforcement custody of the petitioner. In the remand application it was claimed by respondent No.3 that arrest of petitioner was done on 01.09.2014 for involvement in the huge money laundering racket and investigation could not be completed in short time. Thereafter, the application for opposing further remand and for seeking bail was filed by the petitioner on 08.09.2014 for seeking temporary bail, till final disposal of the said application. However, by order dated 09.09.2014, learned Sessions Judge [PMLA] Designated Court was pleased to reject the prayers for interim relief and thereafter matter was kept for hearing on regular bail. An affidavit in reply was filed by respondent No.3 on 15.09.2014 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... envisaged under Section 19 of the PML Act. 4.3 Referring to two notifications dated 01.07.2005, GSR 446[E] and GSR 441[E], it is stated that the above notifications were issued in exercise of powers under sub section (1) read with clause [a], Clause [p] of sub section (2) of section 73 of PML Act notifying The Prevention of Money Laundering [the Forms and the Manner of Forwarding a Copy of Order of arrest of a Person Along with the Material to the Adjudicating Authority and its Period of Retention] Rules, 2005 and the second notification was issued by the Central Government in exercise of powers conferred by sub section [1] of Section 49 of the PML Act whereby the Central Government appointed with effect from 1st day of July, 2005 Directorate of Enforcement holding office immediately before the said date under the Foreign Exchange Management Act, 1999 as the Director who exercise the exclusive powers conferred under Sections 5, 8, 16, 17, 18, 19 20 and 21 and subsection (1) of Section 26, Sections 45, 50, 57, 60, 62 and Section 63 of the PML Act and the said director shall also concurrently exercise powers conferred by sub sections 3, 4 and 5 of Section 26 and Sections 39, 40, 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cognizable and non bailable. Such an anomalous situation would lead to disastrous consequences. On the one hand a person may be accused of non cognizable and/or a bailable offence however, if applied rigors of PML Act, such an offence if finds place in Part A of the Schedule of the offences under PML Act, would become much graver, and if the liberty of such person is curtailed, by application of the provisions of Section 45 of the Act, a greater burden would be put on the Court to hold that there are reasonable grounds to believe that the accused person is not guilty of offences under PML Act in order to grant bail and such rigor is blatantly unreasonable, absurd and discriminatory. Such rigor is even greater than Section 37 of the NDPS Act where in case of certain types of offences viz. under Sections 19 or Section 24 or Section 27A and for offences involving commercial quantity under NDPS Act where to undergo rigor of section 37 and not for lesser offences. 5.1 It is further submitted that a bare glance on the provisions of Section 45 of PMLA would show that irrespective of the nature of the accusation in scheduled offence, all offences under PMLA are cognizable as well as non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, and case shall relate to its projection as untainted. (c) There has to be 'material in possession', (d) There must be reason to believe, (e) The reasons for such belief must be recorded in writing, (f) Reasons to believe must relate to any person to be 'guilty' of an offence punishable under PMLA, (g) Pursuant to such arrest, it is mandatory to inform the arrestee of the grounds for such arrest, (h) In terms of Rules notified vide GSR 446 (E), dated 1.7.2005, particularly Rule 2(1)(c), 2 (1) (e), 2 (1) (f), 2 (1) (g), 2 (1) (h), Rule 3, and Rule 6, arrest under PMLA can be made by an arresting officer as defined in the Rules on the basis of material and upon service of Arrest order which must be made in accordance with Form III, containing material particulars in the matter of arrest, and the officer to be 'authorised' in this behalf by the Central Government, and also indicating 'reason to believe' as required under Section 19 because arrest order would mean the order of arrest of a person and includes the grounds for such arrest under sub section (1) of section 19 of the Act. The aforesaid rules are reproduced hereinafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) cannot be invoked unless the other mandatory procedural requirements are met with. It is further submitted that Section 45 of PMLA, to the extent it is ultra vires of Articles 14, 19, 21 and 22 of the Constitution of India, is unconstitutional. 5.6 Learned Senior Advocate would contend that Section 19 of the PML Act is to be read down, expound, deliberate and interpret in light of section 49(3) read with Rules notified by GSR 446[E] dated 1.7.2005 and directions and guidelines laid down by the Hon'ble Apex Court in D.K.Basu vs State of West Bengal 1997(1) SCC 416. The above contention of learned counsel are on the premise that the graver offences alleged stricter requirement to follow the procedure and in the instant case there is total breach of procedure prescribed by law while taking away liberty of the petitioner in illegal manner. 5.7 Section 49(3) permits the Central Government to impose such conditions and limitations on exercise of the powers and discharge of duty conferred or imposed on any authority under the PMLA. Thus, as a logical corollary it can be safely inferred that Central Government can by way of Rules and Notifications etc issued by it from time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en guilty of offence under PMLA. [n] In one paragraph the petitioner is alleged as connected with Real Time Gross Settlement RTGS received in about 8 second layer entities (Group C), in the very next paragraph it is restricted to 2 out of these 8 entities. [p] The purported Grounds of Arrest show that the petitioner had denied the allegations in interrogation. This however cannot be the reason for his arrest without there being any reasonable belief, on any material in possession, that he is guilty of offence under PMLA, even on prima facie basis. 5.10 Inter alia, reliance is placed by the learned Senior Advocate on the law laid down by the Apex Court in the3 case of State of Punjab v. Baldev Singh AIR 1999 SC 2378 and also in the case of D.K.Basu,. Vs. State of West Bengal, 1997(1) SCC 416. 5.11 Thus, it is submitted that order of arrest of the petitioner by respondent No.3 in exercise of powers under Section 19(1) of the PML Act deserves to be quashed and set aside. 5.12 Learned Senior Advocate submits that the Grounds of Arrest on the basis of material in possession for reason to believe the applicant as guilty of offence under PML Act, have not even been serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Senior Advocate has further relied on the Prevention of Money Laundering (Amendment) Bill 2011 and the Prevention of Money Laundering Bill of 1999. 6 Mr. Devang Vyas, learned ASG has heavily relied on the affidavit in reply and opposed grant of any relief in the prayer clauses and submitted that involvement of the petitioner in offence under PML Act have surfaced during the course of investigation carried out and submitted as under: 6.1 Learned ASG appearing for the respondent No.3 submits that Section 45 of PMLA is a mandate duly provided by the legislature so as to make the offence of money laundering a cognizable and non bailable offence, the offence of money laundering is a distinct and separate offence which is exclusive of the schedule offence on the basis of which money laundering investigation under PMLA takes it course and hence the investigation of the offence punishable under section 4 of the Act has its own sanctity which is not dependent on the course of schedule offence and its procedure, the exclusivity of the offence and section 45 has to be read in consonance with the Aims and Objective of the said Act. It is further submitted that public interest i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of all other officeRs.It only reveals that the Director has the exclusive power but not necessarily to the exclusion of the others, who are empowered under the Act. The same contention was also settled by the Hon ble Bombay High Court in the matter of Syed Mohamed Masood Vs D. Shanmugam and others in Criminal Bail Application No. 71 of 2013. 6.6 It is further submitted that PMLA was amended so as to bring the offences under various statutes under the ambit of investigation under the Prevention of Money Laundering, stringent and Statement as to notification. 6.7 It is further submitted that Amendment to the PML Act,2002 has further been made which merged the erstwhile schedules under a single schedule so as to remove the monetary limit for investigation under PMLA,2002. 6.8 It is further submitted that the contention raised by the petitioner in terms of Section 54 of the PML Act does not have any locus as the arresting officer is duly authorized under the provisions of statute and derives his authority from Section 19 of the Prevention of Money laundering Act, 2002 and as far as Directors, Deputy Directors, or Assistant Directors are concerned, no authorization of Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpanies mentioned in the FIR and as the investigation progresses, names of other individuals / companies keep on coming up. The persons / companies so emerged during the investigation consequently come under the ambit of investigation under the PMLA, 2002. It is most respectfully submitted that the petitioner s role cropped up during the investigation and he was twice summoned under PMLA,2002. Since he was not forthcoming during the investigations his arrest under PMLA,2002 has been effected. 6.11 It is next submitted that the Prosecution Complaint dated 18.07.2014 has been filed before the Hon ble Designated Court Under PML Act against 79 accused and in the same case after further investigation a supplementary complaint has also been filed on 29.10.2014 against the said petitioner and other 9 accused. Investigation is still in progress in terms of the proceeds of crime and the beneficiaries of fraudulent remittances at Hong Kong and Dubai. 6.12 It is next contended that unsubstantiated allegations of the petitioner against the Directorate as to coercion and threatening are nothing but the afterthought just to abuse the due process of law and it is respectfully submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Judge was pleased to grant custody of the petitioner for four days from 4/9/2014 to 8/9/2014. That the petitioner has been told the grounds of arrest and having learned about his grounds of arrest he has put his signature on the arrest memo. 6.15 It is further submitted that repeated allegations as to threatening of petitioner and his family members and coercing him to sign the statements made during the custody are preposterous, false, baseless and can be termed as added script as same were never contended by the petitioner during his production post arrest or after the enforcement custody, the statements given were voluntary and petitioner thereby was not forced to give any involuntary confession. It is also respectfully submitted that the statements were typed as per the version and say of the petitioner and he was allowed to read before he put his signature on all the occasions. That the petitioner has in his own handwriting made several corrections to the statements and hence there was no question of coercion or duress. The petitioner in his own handwriting has also mentioned that whatever was stated during the remand period was voluntarily, without any coercio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed to be transferred through RTGS to the companies under Group C with the help of various cheque discounters / angadia firms known to the petitioner. The statement of the petitioner is quite evident as to how he helped in illegal transfer of money by various individuals without being connected to the companies mentioned under the Groups A, B, C and D either directly or indirectly. It is further submitted that investigations were initially started under FEMA and on receipt of the copies of FIRs from the Police authorities, investigations under PMLA have also been initiated. The investigation under FEMA is also in progress and is in parallel to the investigation under PMLA,2002. The role of the petitioner has cropped up during the investigation in the form of statements of various cheque discounters, angadia firms and Shri Madanlal Jain with whom the Petitioner was having good relations. That the petitioner with the help of his brother Shri Rajesh Kothari used the said illegal monies remitted on the strength of fake documents to Dubai for smuggling of Gold and Diamonds was stated by Shri Madanlal Jain. Shri Rajesh Kothari is a beneficiary of the unlawful remittances to Dubai and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ckground in which the said words / phrases have been used. In so far as the grounds under which the above words and phrases were mentioned under the remand application and the reply filed before the designated court for PMLA,2002 was to elaborate the role of the involvement of the petitioner in sourcing funds to Shri Madanlal Jain in the mammoth fraudulent remittances to Hong Kong and Dubai. That the petitioner was not alleged to have made remittances abroad but had only sourced funds belonging to his paternal uncle to the companies mentioned under the Group C is unquestionably substantiated. That the companies under Group C were of Shri Madanlal Jain and made RTGS transfer to Companies mentioned under Group A which used the same for illegal transfer of money to places like Hong Kong and Dubai on strength of fake documents. The investigation has also established the role of the petitioner beyond an iota of doubt to the extent of sourcing funds to the companies categorised as Group C and the petitioner himself as stated the way the funds were seen to be transferred through RTGS. Shri Rajesh Kothari, the brother of the petitioner has been named by Shri Madanlal Jain to be a beneficia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authorities. The investigations launched under PMLA,2002 after registering the ECIR for source and trail of this mammoth illegal transfer of money led to various individuals and companies. The financial sources to the companies categorised under Group C by the petitioner himself was used for RTGS transfers to the companies categorised under Group A which have made the fraudulent remittances made from Surat on the strength of fake documents. It is most respectfully submitted that Shri Madanlal Jain created the companies mentioned under categories Group A and Group C and one of the sources of funds to the companies under Group C is the petitioner who had used the services of cheque discounters, angadias and other commission agents for the benefit of Shri Madanlal Jain. The petitioner is thus appropriately termed as guilty under the offence of money laundering and his role is aptly covered under the definition under Section 3 of PMLA,2002. The proceeds thus derived from the illegal transfer of money are nothing but proceeds of crime as has been defined under Section 2 (1) (u) of PMLA,2002. 6.25 It is further submitted that it has been held by the Hon ble Designated Judge under PM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under clauses (a) and (p) of Section 73 (1) and (2) of the Act. These clause (a) and (p) of Section 73(2) read as under: 73. (2) (a) the form in which records referred to in this act may be maintained; 73. (2) (p) the manner in which the order and the material referred to in Section 19(2) shall be maintained. 6.29 It is further submitted that the rules were, therefore, framed in order to prescribe forms in which records were to be maintained and the manner in which order and material referred to in sub section (2) of Section 19 was to be maintained. The term arresting officer was defined for the purpose of those rules only and definition of Arresting Officer in these rules cannot be held to control provisions of Section 19 of the Act or require that the Central Government has to issue notification under those rules for authorising an assistant director to effect arrest. 6.30 It is further submitted that the non communication of grounds of arrest is not the question because the same has been communicated to the petitioner as described in above paragraphs. 6.31 It is further submitted that the impugned provisions and the actions or inactions of the Respondents c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ystem with a view to concealing the origin or original identity of the money and to make this origin/identity virtually disappear; and [iii] The integration stage: The money is thereafter integrated into the financial system in such a way that its original association with crime is totally obliterated and the money could be used by the malfeasant and/or the accomplices to get it as untainted/clean money. [C] Money laundering often involves five different directional fund flows: [i] Domestic money laundering flows: In which domestic funds are laundered within the country and reinvested or otherwise spent within the country; [ii]Returning laundered funds:Funds originate in a country, are laundered abroad and returned back. [iii] Inbound funds:illegal funds earned out of crime committed abroad are either laundered [place] abroad or within the country and are ultimately integrated into the country; [iv]Out bound funds: Typically constitute illicit capital flight from a country and do not return back to the country; and [v] Flow through: The funds enter a country as part of the laundering process and largely depart for integration elsewhere. [D] The Act is a spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of drug crimes and other connected activities and confiscation of proceeds derived from such offence. [b] the Basic Statement of Principles, enunciated in 1989, outlined basic policies and procedures that banks should follow in order to assist the law enforcement agencies in tackling the problem on moneylaundering. [c] the Financial Action Task Force established at the summit of seven major industrial nations, held in Paris from 14th to 16th July, 1989, to examine the problem of money laundering has made forty recommendations, which provide the foundation material for comprehensive legislation to combat the problem of money laundering. The recommendations were classified under various heads. Some of the important heads are [i] declaration of laundering of monies carried through serious crimes a criminal offence; [ii]to work out modalities of disclosure by financial institutions regarding reportable transactions; [iii] confiscation of the proceeds of crime; [iv]declaring money laundering to be an extraditable offence; and [v] promoting international co operation in investigation of money laundering. [d] the Political Declaration and Global Programme of Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of this Act to fill the vacancy, enters upon his office; (i) the appellant before the Appellate Tribunal may be authorized to engage any authorized representative as defined under section 288 of the Income tax Act, 1961, (j) the punishment for vexatious search and for false information may be enhanced from three months imprisonment to two years imprisonment, or fine or rupees ten thousand to fine of rupees fifty thousand or both; (k) the word 'good faith' may be incorporated in the clause relating to Bar of legal proceedings. The Central Government have broadly accepted the above recommendations and made provisions of the said recommendations in the Bill. 3 In addition to above recommendations of the standing committee the Central Government proposes to (a) relax the conditions prescribed for grant of bail so that the Court may grant bail to a person who is below sixteen years of age, or woman, or sick or infirm, (b) levy of fine for default of non compliance of the issue of summons, etc. (c) make provisions for having reciprocal arrangement for assistance in certain matters and procedure for attachment and confiscation of property so as to facilitate the transfer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edule [z] Special Court means a Court of Sessions designated as Special Court under sub section (1) of Section 43; [za] transfer includes sale, purchase, mortgage, pledge, gift, loan or any other form of transfer of right, title, possessions or lien; [zb] value means the fair market value of any property on the date of its acquisition by an persons, or if such date cannot be determined, the date on which such property is possessed by such person. 3 Offence of money laundering Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected proceeds of crime including tis concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of moneylaundering. 4 Punishment for money laundering. Whoever commits the offence of money laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine which may extend to five lakh rupees: Provided that where the proceeds of crime involved in money laund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny other person the Authority or Court, may presume that such proceeds of crime are involved in moneylaundering. 44. Offences triable by Special Courts. 45 Offences to be cognizable and nonbailable. [1] Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless [i] the Public Prosecutor has been given an opportunity to oppose the application for such release; and [ii]where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs: Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by [i] the Director; or [ii]any officer of the Central Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following criteria, namely: [a] territorial area; [b] classes of persons; [c] classes of cases; and [d] any other criterion specified by the Central Government in this behalf. 52 Power of Central Government to issue directions, etc. The Central Government may, from time to time, issue such orders, instructions and directions to the authorities as it may deem fit for the proper administration of this Act and such authorities and all other persons employed in execution of this Act shall observe and follow such orders, instructions and directions of the Central Government: Provided that no such orders, instructions or directions shall be issued so as to [a] require any authority to decide a particular case in a particular manner; or [b] interfere with the discretion of the Adjudicating Authority in exercise of his functions. 53 Empowerment of certain officers. The Central Government may, by a special or general order, empower an officer not below the rank of Director of the Central Government or of a State Government to act as an authority under this Act: Provided that the Central Government may empower an officer below the rank of Dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Special Court. [11] Under section 50 i.e. power regarding summons, production of documents and to give evidence. [12] Under section 57 i.e. to apply for letter of request to a contracting state. [13] Under section 60 i.e. power of attachment, seizure and confiscation in contracting State or in India. [14 ]Under section 63 i.e. to impose penalty in respect of failure to give information. 36. Directorate of Enforcement [1] The Central Government shall establish a Directorate of Enforcement with a Director and such other officers or class of officers as it think fit, who shall be called officers of Enforcement, for the purposes of this Act. [2] Without prejudice to provisions of sub section (1), the Central Government may authorise the Director of Enforcement or an Additional Director of Enforcement or a Special Director of Enforcement or a Deputy Director of Enforcement to appoint officers of Enforcement below the rank of an Assistant Director of Enforcement. [3] Subject to such conditions and limitations as the Central Government may impose, an officer of enforcement may exercise the powers and discharge the duties conferred or imposed on him under this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... torate of Enforcement appointed under subsection (2) of section 36 of the Foreign Exchange Management Act as Assistant Director for the purpose of the Prevention of Money Laundering Act, 2002. MINISTRY OF FINANCE (Department of Revenue) ORDER New Delhi, the 13th September, 2005 S.O.1273(E) In exercise of the powers conferred by sub section (1) of Section 49 of the Prevention of Money laundering Act, 2002 (15 of 2003), the Central Government hereby appoints, with effect from the 1st day of July, 2005, the Special Director holding office immediately before the said date under the Foreign Exchange Management Act, 1999 (42 of 1999), as the Additional Director for the purpose of the Prevention of Money laundering Act, 2002. [F.No.6/2/2005 E.S.] ANUJ SARANGI, Director ORDER New Delhi, the 13th September, 2005 S.O.1274[E] In exercise of the powers conferred by Sub section (1) of Section 49 of the Prevention of Money laundering Act, 2002 (15 of 2003) the Central Government hereby appoints, with effect from the 1st day of July, 2005, the Deputy Director holding office immediately before the said date under the Foreign Exchange Management Act, 1999 (42 of 1999 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant Director Subject to approval of Special Director 45 Filing of Prosecution complaint Deputy Director Subject to approval of Special Director (II)Statutory Authorities under FEMA: The Assistant Director shall continue to act as Investigating Officer. The authorities and functions presently being discharged by the officers shall continue to be so discharged. (III) Legal cadre: The legal cadre shall be consulted in all matters relating to legal issues as well as before the Courts/Tribunals/Adjudicating authorities. The above mentioned authorities shall also perform other works/functions, as may be specifically assigned to them from time to time by the Director of Enforcement/their supervisory officers. 9 The Apex Court in the case of Ram Jethmalani ORs. vs. Union of India ORs.reported in (2011)8 SCC 1, extensively considered unaccounted / black money generated in India by Indians and transferred and accumulated in foreign banks and about prevention of money laundering and Part I of the above order begins as under: 1 Follow the money was the short and si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticular point, the State may spin into a vicious cycle of declining moral authority, thereby causing the incidence of unlawful activities in which wealth is sought to be generated, as well as instances of tax evasion, to increase in volume and in intensity. 14. When a catchall word like crimes is used, it is common for people, and the popular culture to assume that it is petty crime, or crimes of passion committed by individuals. That would be a gross mis characterization of the seriousness of the issues involved. Far more dangerous are the crimes that threaten national security, and national interest. For instance, with globalization, nation states are also confronted by the dark worlds of international arms dealers, drug peddlers, and various kinds of criminal networks, including networks of terror. International criminal networks that extend support to home grown terror or extremist groups, or those that have been nurtured and sustained in hostile countries, depend on networks of formal and informal, lawful and unlawful mechanisms of transfer of monies across boundaries of nationstates. They work in the interstices of the micro structures of financial transfers across ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposition of penalties for infringement, it is trite that all such penal provisions contain in penal statutes are to be construed strictly so as to see that thing charges as an offence is within plain meaning of words used and such words are not to be stretched on any notion by supplying casus omissus. 10.3 Maxwell in the Interpretation of Statutes [12th Edn.] says : the strict construction of penal statutes seems to manifest itself in four ways : in the requirement of express language for the creation of an offence; in interpreting strictly words settling out the elements of an offence; in requiring the fulfillment to the letter of statutory conditions precedent to the infliction of punishment; and in insisting on the strict observance of technical provisions concerning criminal procedure and jurisdiction. 10.4 In Craies and Statute Law [7th Edn. At P.529] it is said that penal statutes must be construed strictly. At page 530 of the said treatise, referring to [U.S. v. Wiltberger [1820]2 Wheat [US] 76], it is observed, thus : the distinction between a strict construction and a more free one has, no doubt in modern times almost disappeared, and the question now is, what is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said wordings does not lead to the conclusion that the Court must arrive at a positive finding that the applicant has not committed offence under the Act. It must be so construed that the Court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. The Court will be required to maintain finding as to the possibility of his committing a crime after grant of bail. However, such an offence in future must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the Court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, is propensities and the nature and manner in which he is alleged to have committed the offence. 10.7 That Section 2 of Chapter I contains various definitions and money laundering is defined under Section 2(p) makes a reference that `money laundering' means the meaning assigned to it in section 3 of Chapter II under the head Offences of Money Laundering is wide and extensive. 10.8 It is worth noting that Section 3 is again amended and earlier words with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, twofold dragnet is laid down by the Legislature by providing a mechanism of punishment as defined under Section 4 for such offender under Section 3 read with Sections 44 and 45 of PML Act and to take care of attachment, confiscation of such tainted property under sections 5, 8, etc. subject to outcome at the end of trial before the special court. In the above context, section 24 of PML Act cast burden of proof upon an accused person to prove that proceeds of crime are untainted property. 10.12 A bare perusal of section 45 of the PML Act reveals that it is pertaining to offences to be cognizable and non bailable and begins with nonobstinate clause notwithstanding anything contained in the Code of Criminal Procedure, 1973 and mandates that no person accused of offence punishable for term of imprisonment for more than 3 years under Part A of the Schedule shall be released on bail or on his own bond unless; [i] the Public Prosecutor has been given opportunity to oppose the application for such release; and [ii] Where the Public Prosecutor opposes such application, the court has to satisfy about existence of reasonable grounds for believing that such accused person is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l statue or statutes included in Part B prior to omission having lesser or negligible consequences or infraction on liberty of an individual after omission of Part B and inclusion by way of substitution of Part A of the schedule under Section 2[y] of the PML Act resulting into a stricter procedure if considered in view of aforementioned facet of money laundering read with object and reasons of the Act, we are of the view that such an amendment Act 2 of 2013 with effect from 15.02.2013 consequently resulting into such offender under section 3 of the PML Act to undergo rigor of Section 45 is not ultra vires to the Constitution of India. That such offences of lesser gravity having negligible consequences if related or connected with criminal activities of offenders of Section 3 of PML Act viz. money laundering transactions having interstate and/or cross border implications become menace to humankind. Even to trace out its source, transfer and ultimate use even by terrorists group or outlaws jeopardize integrity and sovereignty of nations and having far reaching consequences on financial system / economies of such sovereign state along with security of the citizens cannot be viewed onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coma[`] , in subsection (1) of Section 19 after the words any other officer . Section 48 defines authority under the Act and Section 49 is about appointment and powers of authorities and other officers, Section 50 is about powers of authorities regarding summons, production of documents and to give evidence etc. Section 51 is for jurisdiction of authorities. Section 52 is for powers of Central Government to issue directions and Section 53 is for empowerment of certain officers and Section 54 is for certain officers to arrest in inquiry. Section 73 empowers the Central Government to make the rules and sub section (1) of section 73 specifically provides that the Central Government may, by notification, make rules for carry out the provisions of this Act and sub section (2) states in particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matteRs.Clause [p] includes the manner in which order and the material referred to in section 2 and Section 19 shall be maintained and precisely for this purpose. Clause [a] provides for form in which records referred to in the Act to be maintained. 10.14 The Rules, 2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be, he is to be informed of the grounds for such arrest. 10.17 That sub section (2) of section 19 further imposes duty upon such competent authority to forward a copy of such arrest with the material in his possession to the adjudicating authority in a sealed envelop as per the procedure prescribed and subsection (3) of Section 19 mandates that every person arrested under that section shall have to be produced before the learned Magistrate or the Metropolitan Magistrate, as the case may be, having jurisdiction, within a period of 24 houRs.The above provisions are in consonance with Article 22(1) of the constitution of India. 10.18 That the Ministry of Finance, Department of Revenue has appointed the Enforcement Officer in the Directorate of Enforcement appointed under sub section (2) of Section 36 of FEMA as Assistant Director for the purpose of PML Act and such order is issued in exercise of powers conferred by sub section (1) of Section 49 of the PML Act. When the above notification is in force and subsequent orders are issued on the same line by the Ministry of Finance, Department of Revenue, Central Government and definition of Assistant Director as contained in Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein that the Assistant Director was not authorized to affect arrest under Section 19(1) of the PML Act, in which reliance was placed on Scheme of the Act viz. Sections 19, 45, 49, 73, etc came into consideration along with SR 441(E) dated 01.07.2005 and other such notifications. The learned Single Judge of Bombay High Court in paras 13 to 17 held as under: 13.I have considered these arguments. First the rules which have been relied on have been framed in exercise of powers under clauses (1) and (p) of sub section (2) of Section 73 of the Act. These clauses (a) and (p) of Section 73(2) read as under: 73.(2)(a) the form in which records referred to in this act may be maintained; (p) the manner in which the order and the material referred to in sub section (2) of Section 19 shall be maintained. 14. The rules were, thus, framed in order to prescribe forms in which records were to be maintained and the manner in which order and material referred to in sub section (2) of section 19 was to be maintained. The term Arresting Officer was defined for the purpose of those rules only. Inserting in clause (c) (1) of Rule (2) of those Rules, a subsequent comma, [,] after t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th effect from the 1ast day of July, 2005, the Director of Enforcement holding office immediately before the said date under the Foreign Exchange Management Act, 1999 (42 of 1999), as director to exercise the exclusive powers conferred under Section 5, section 8, section 17, section 18, section 19, section 20, section 21, sub section (1) of section 26, section 45, section 50, section 57, section 60, section 62, and section 63, of the said Act and the said Director shall also concurrently exercise powers conferred by sub section (3) sub section (4) and subsection (5), of section 26, section 39, section 40, section 41, section 42, section 48, section 49, section 66 and section 69 of the aforesaid Act . 17. As rightly submitted by the learned Advocate General, the words used in the notification do not show that the Director was to have powers under Section 5, 8, 17, 18, 19, 20, 21, 26, 28 of the Act, to the exclusion of all other offences. It only shows that the Director has the exclusive power but not necessarily to the exclusion of others, who have been empowered under the Act. Since the act itself does not provide for any power in the Central Government to issue notification a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or and Assistant Director for exercise of powers under PML Act. This is further evident from the fact that in continuation of order No. S.O. 906[E] dated 21.04.2010 issued by Ministry of Finance in exercise of powers conferred by sub section (1) of Section 49 of the PML Act, the Central Government has appointed enforcement officer in the Directorate of Enforcement appointed under sub section (2) of Section 36 of The Foreign Exchange Management Act, 1999 as Assistant Director for the purpose of PML Act, 2002. Circular Order No.03/2011 dated 27.08.2011 further designated the posts of Deputy Director, Assistant Director Grade I and Assistant Director, Grade II and conferred power of arrest upon Assistant Director, subject to approval of Special Director. Therefore, harmonious reading of Sections 48 to 54 and definition of Assistant Director contained in Section 2[c] of PML Act reveal the Assistant Director respondent No.3 in this case is duly empowered to order arrest under Section 19 of the PML Act. 10.23 That in view of our holding that the Assistant Director of Directorate of Enforcement respondent No.3 is competent and authorized officer under PML Act to order arrest und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dural enumerated either under Article 19(1)of the PML Act or under Article 22(1) of the Constitution of India. Further, since the subject matter is pending before the competent designated court and upon registering complaint, we do not further deliberate on the import of the nature of involvement of the petitioners for the offences under Section 3 of the PML Act, but the fact remains that affidavit filed by the respondent No.3 placing his version on the record remains undisputed till the matter was heard and kept for judgment. 10.26 Thus, it cannot be said that order of arrest suffers from vice of any illegality on the ground that it is ordered by the incompetent or unauthorized and there is no failure in adhering procedure laid down under Seton 19(1) of the PML Act and further no breach to the guidelines laid down in the case of D.K.Basu [supra] and it cannot be said that the petitioners are detained or confined illegally warranting issuance of writ of Habeas Corpus. At the same time respondent No.3 Assistant Director of Enforcement is competent and authorized to issue order of arrest under Section 19(1) of the PML Act and no case is made out to issue writ of quo warranto as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dering operation, to be effective and successful, is the contention on behalf of the respondents. Section 23 enjoins a presumption in respect of inter connected transactions. Money laundering is defined in Section 2 (p) (with reference to Section 3). Though Section 3 defines the offence of money laundering, the ingredients of the offence enumerated in this provision define money laundering in its generic sense as applied by the Act to attachment and confiscation processes as well. Such duality is achieved by the drafting technique of defining moneylaundering in Section 2 (p) by ascription of the definition of the offence of money laundering in Section 3. This technique, though specific, is not unique. As observed in LIC of India Vs. Crown Life Insurance Co., the object of a definition clause in a statute is to avoid the necessity of frequent repetitions in describing all the subject matter to which the word or expression so defined is intended to apply. A definition section may borrow definitions from an earlier or an existing statute; not necessarily in the definition section but in some other provision, of that Act; and may equally borrow the definition from some other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re such transactions is/are proved to be involved in money laundering, then for the purposes of adjudication or confiscation under Section 8, it shall, unless otherwise proved to the satisfaction of the adjudicating authority, be presumed that the remaining transactions form part of such interconnected transactions i.e., involved in money laundering as well. The presumption enjoined by Section 23 is clearly a rebuttable presumption i.e., presumptio pro tantum. In Izhar Ahmad v. Union of India, Gajendragadkar, J. [as his Lordship then was] observed (in the majority opinion of the Constitution Bench) that: The term Presumption in its largest and most comprehensive signification, may be defined to be an inference, affirmative or disaffirmative of the truth of false hood of a doubtful fact or proposition drawn by a process of probable reasoning from something proved or taken for granted. Quoting with approval the statement of principle set out in the Principles of the Law of Evidence by Best, his Lordship observed that when the rules of evidence provide for the raising of a rebuttable or irrebuttable presumption, they are merely attempting to assist the judicial mind in the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r more transactions forming part of inter connected transactions having been proved to be involved in money laundering, that the other transactions are also to be presumed so, unless the contrary is established. As observed in Izhar Ahmad (supra), the rule of presumption enjoined by Section 23 takes away judicial discretion either to attach or not due probative value to the fact that one or more of the inter connected transactions have been proved to be involved money laundering; and requires prima facie due probative value to be attached and mandates an inference that the other transactions form part of the raft of interconnected transactions involved in moneylaundering, subject of course to the said presumption being rebutted by proof to the contrary. On the aforesaid analysis, since Section 23 enjoins a rule of evidence and a rebuttable presumption considered essential and integral to effectuation of the purposes of the Act in the legislative wisdom; a rebuttable and not an irrebuttable presumption, we are not persuaded to conclude that the provision is unduly harsh, oppressive or arbitrary. After all a legislative remedy must correspond to the social pathology it prof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n possession of proceeds of a crime, whether in his own right or on behalf of any other person, calling upon the noticee to indicate the sources of his income, earning or assets for the purposes of establishing that the acquisition of ownership, control or possession of the property by the noticee is bona fide and out of legitimate sources; of his income, earning or assets, does not enact a presumption that where the noticee is a person accused of the offence under Section 3, the provisionally attached property is proceeds of crime. Since camouflage and deceit are strategies inherent and integral to money laundering operations and may involve successive transactions relating to proceeds of crime and intent to project the layered proceeds as untainted property, effectuation of the legislative purposes is achieved only where the burden is imposed on the accused to establish that proceeds of crime are untainted property. This is the legislative purpose and the justification for Section 24 of the Act. In response to a notice issued under Section 8 (1) and qua the legislative prescription in Section 24 of the Act the person accused of having committed the offence under Section 3 mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontext of Article 21 of the Constitution of India vis a vis custodial violence and deprecated naked violation of human dignity by custodial violence and found third degree methods are totally impermissible. While laying down mandatory guidelines in paras 35 and 36 of the said judgement mandated police authorities and likewise to follow such guidelines strictly and breach thereof would entail serious consequences, including proceedings to be taken up by the Court concerned in accordance with law, including punishment for contempt of court. However, as we have noticed, discussed and upheld that arrest of the petitioners by a competent officer viz. The Assistant Director respondent No.3 herein duly empowered to do so and further envisaged procedure under Section 19 of the PML Act, which galore on the record of the case. Therefore, judgement in the case of D.K.Basu [supra] is not applicable to the facts of the present petitioners. 13.1 The decision in the case of Harikishan [supra] was in the context of order of detention passed under Section 3(1)(a)(ii) of the Preventive Detention Act in which no opportunity was given to the appellant detenue to have sufficient knowledge of all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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