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TMI Blog2021 (1) TMI 975X X X X Extracts X X X X X X X X Extracts X X X X ..... reflected in the impugned order. Even otherwise, the PML Act has provided for adequate safeguards to protect the rights of the accused by providing that the order of attachment shall cease to have effect after the expiry of the period specified in the said section or the date of order made under sub-section (3) of section 8 of PML Act - More importantly, an adjudicatory mechanism is provided under section 8 of the PML Act and the petitioner has availed the said remedy and has participated in the proceedings before the Adjudicating Authority. Considering the contentions urged by the petitioner, the Adjudicating Authority has come to the conclusion that the petitioner has committed the scheduled offences, generated proceeds of crime and laundered them vide Annexure- E . As adequate and efficacious remedy is available to the petitioner against the said order, petitioner is not entitled for the relief (v) claimed in the petition. A reading of the complaint (Annexure-A) indicates that it was filed under section 45(1), 3 and 4 of the PML Act. It is alleged therein that accused Nos.1 to 4 have committed offence under section 3 of the PML Act and liable to be punished under section 4 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nLine TS 287, would submit that the cognizance order has been passed without application of mind. It is a bald order wherein the learned Special Judge has mechanically reproduced the provisions of law quoted by the respondent without even considering the allegations constituting the alleged offences. In view of Section 65 of the PML Act, petitioner being a public servant, no cognizance could have been taken by the learned Special Judge without prior sanction under Section 197 of Cr.P.C. Therefore, the very initiation of proceedings against the petitioner being illegal and without jurisdiction, the entire proceedings initiated against the petitioner are vitiated and are liable to be quashed solely on that ground. 3. With regard to the third relief claimed in the petition, the learned Senior Counsel would submit that the proceedings in ECIR/BGZO/13/2016 dated 03.12.2016 were initiated against the petitioner based on the FIR No.RC 23(A)/2016. In the Enforcement Case Information Report (ECIR), it was specifically stated that the source from which information was gathered was the case registered by the Central Bureau of Investigation (CBI), ACB, Bengaluru in FIR No.RC 23(A)/2016 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there being no finding by any of the criminal courts to the effect that the properties found in possession of the petitioner were proceeds of the predicate crime, the provisional attachment order passed by the respondent and the subsequent confirmation thereof is illegal and cannot be sustained. In support of his submission, the learned Senior Counsel has placed reliance on the following decisions: 1. Mahanivesh Oils Foods Pvt. Ltd. Vs. Directorate of Enforcement 2016 SCC Online Del 475 2. M/s. Ajanta Merchants Pvt. Ltd. Vs. Directorate of Enforcement Crl.M.C.No.5581/2014 (D.D. 09.04.2015) (High Court of Delhi) 3. Arun Kumar Mishra Vs. Directorate of Enforcement 2015 SCC Online Del. 8658 4. Rajiv Chanana Vs. Deputy Director, Directorate of Enforcement WP(C) 6293/2014 (D.D.19.09.2014) (High Court of Delhi) 5. VGN Developers P. Ltd. Vs. Deputy Director, Directorate of Enforcement 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position that without considering the fact that the properties in question were acquired much prior to the PML Act came into force, the petitioner is sought to be proceeded under the provisions of the PML Act. It is specifically contended that the properties mentioned in the table produced along with the complaint were acquired during the check period between 01.02.1985 to 18.12.2008 and therefore, therespondent has no jurisdiction over the subject property and therefore, the action initiated against the petitioner is without authority of law, inasmuch as, it is based on ex post facto penal laws which are not permissible under the scheme of the Constitution of India. 10. The above contention is already answered by me in Criminal Petition No.5698/2019 and connected matters, disposed of on 14.12.2020 and as such, I do not find it necessary to burden the records by reproducing the very same reasons and the judicial precedents which are relied by me to arrive at the conclusion that what is made punishable under section 3 of the PML Act is the activity connected with the proceeds of crime either by getting oneself involved in the process or activity connected thereto or directly o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime under this Chapter. 12. The petitioner does not dispute the authority of the Deputy Director to pass the impugned provisional order of attachment. The constitutional validity of the above provision is also not under challenge. The said order as well as the records indicate that a report has been forwarded to the Magistrate under section 173 of Cr.P.C. in relation to the scheduled offences i.e., under section 13(1)(e) read with 13(2) of the PC Act on 28.02.2013. The order reflects the application of mind and also the elaborate reasons to arrive at the conclusion that the property in question was the proceeds of crime within the meaning of section 2(1)(u) of the PML Act. The said order therefore is beyond challenge in a writ proceeding as no error of law and fact is reflected in the impugned order. Even otherwise, the PML Act has provided for adequate safeguards to protect the rights of the accused by providing that the order of attachment shall cease to have effect after the expiry of the period specified in the said section or the date of order made under sub-sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d have been summoned to appear before the court. In this context, it may be apt to refer to the observations of the Apex Court in the Case Sunil Bharti Mittal vs. CBI in (2015) 4 SCC 609. 48. Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the Court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not. 49. Cognizance of an offence and prosecution of an offender are two different things. Section 190 of the Code empowered taking cognizance of an offence and not to deal with offenders. Therefore, cognizance can be taken even if offender is not known or named when t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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