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TMI Blog2022 (11) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent. 3. Shorn of unnecessary details, facts in brief, are as follows:- On the intervening night between 14th and 15th of May, 2008, accused 1 and 2 are said to have involved in the commission of murder of one Rajesh and one Ramu while injuring few others in a farm house belonging to one Muddappa situated behind APMC in Hunsur. A crime was registered in Crime No.108 of 2008 and on completion of investigation, a charge sheet was laid against accused 1 and 2 for offences punishable under Sections 307, 449, 201, 427, 143, 144, 147 and 302 of the IPC. The Sessions Judge after a full blown trial convicted accused 1 and 2. The said conviction was called in question before this Court in Criminal Appeal No.414 of 2016. This Court by its judgment dated 14-08-2018 acquitted accused 1 and 2 of the aforesaid crime on the ground that the prosecution had failed to prove guilt of accused 1 and 2 beyond all reasonable doubt as eye witnesses and several other material witnesses had turned hostile. This Court held that the Sessions Court had wrongly read the evidence and had not considered the legal aspect involved in the case. Judgment and order of conviction of the Sessions Judge was set as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt being rendered by the Apex Court, the matter was posted for further hearing and the counsel were re-heard on the judgment. The learned senior counsel would now contend that the issue stands covered by the judgment rendered by the Apex Court in the case of VIJAY MADANAL CHOUDHARY, as the Apex Court has clearly held that if the accused are discharged, acquitted or proceedings against them are quashed by the Court of competent jurisdiction, the proceedings for scheduled offences under the Act which are linked to the predicate offences cannot be permitted to continue. Therefore, the learned senior counsel would now contend that there is no impediment whatsoever to quash the entire proceedings in the light of the judgment of the Apex Court. 8. The learned counsel appearing for the Enforcement Directorate would seek to contend that the issued is covered by DYANI ANTONY PAUL as proceeds of crime is what is determined by this Court and as such, the proceedings should be permitted to continue as the charges are already framed and trial is in progress. He would further submit that this very petitioner was a party to the judgment in the case of DYANI ANTONY PAUL (supra) and this very cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l is not the concern of this Court as the order of acquittal dated 14-08-2018 passed by the Division Bench of this Court in the aforesaid criminal appeal has become final. Therefore, the acquittal of petitioners-accused 1 and 2 in the subject crime has become final which would mean that accused 1 and 2 are acquitted of predicate offences under the IPC as alleged against them. 11. During the pendency of the appeal, the moment conviction had come about, the proceedings were instituted by the respondent against the petitioners in both these cases. Accused No.3 is the wife of accused No.1, accused No.4 is the wife of accused No.2 and accused No.5 is the father of accused No.1. Therefore, the allegation in the subject crime i.e., Special C.C.No.303 of 2018 is that the wealth the petitioners are in their possession is the proceeds of crime in the predicate offence. As observed hereinabove, the complaint in the cases at hand was filed on 03-05-2018 during the pendency of the appeal before the Division Bench of this Court. The entire narration in the complaint is that the allegations in the complaint is a direct result of the criminal activity relating to IPC offences as several propertie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2016 dated 24-10-2016 was ended in acquittal. Hence, this case is not maintainable under PMLA. It is to be noted that the offence under Section 3 of PMLA is not based on the outcome of predicate offence. What is necessary to constitute the offence of money laundering is the existence of proceeds of crime. The reading of Section 3 of PML Act would clearly indicate that even when there being any conviction of accused in predicate offence and even if the offender under Section 3 of PMLA is not a party to the predicate offence, still the prosecution could be launched against him and the property held by him could be attached if found involved in any process or activities connected with the proceeds of crime. The schedule offence is a substrata condition for giving rise to proceeds of crime and commission of schedule offence is a pre-condition for proceeding under PMLA. As such arguments urged in this aspect is not acceptable one. 10. The material allegations made in the complaint and the documents annexed to the complaint prima facie reveal about the involvement of the accused in laundering the money. The case against the accused registered under the Organized Crime Act. The materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra), is what settles this issue. The Apex Court in the judgment (supra) specifically interpreting Section 3 of the Act has held as follows: "263. Coming to Section 3 of the 2002 Act, the same defines the offence of money-laundering. The expression "money-laundering", ordinarily, means the process or activity of placement, layering and finally integrating the tainted property in the formal economy of the country. However, Section 3 has a wider reach. The offence, as defined, captures every process and activity in dealing with the proceeds of crime, directly or indirectly, and not limited to the happening of the final act of integration of tainted property in the formal economy to constitute an act of money-laundering. This is amply clear from the original provision, which has been further clarified by insertion of Explanation vide Finance (No. 2) Act, 2019. Section 3, as amended, reads thus: "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 with the 456[proceeds of crime including its concealment, possession, acquisition or use and projec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to the essential ingredient of "process or activity" connected with the proceeds of crime. The Explanation inserted by way of amendment of 2019, therefore, has clarified the word "and" preceding the expression "projecting or claiming" as "or". That being only clarificatory, whether introduced by way of Finance Bill or otherwise, would make no difference to the main original provision as it existed prior to 2019 amendment. Indeed, there has been some debate in the Parliament about the need to retain the clause of projecting or claiming the property as untainted property. However, the Explanation inserted by way of amendment of 2019 was only to restate the stand taken by India in the proceedings before the FATF, as recorded in its 8th Follow-Up Report Mutual Evaluation of India June 2013 under heading "Core Recommendations". This stand had to be taken by India notwithstanding the amendment of 2013 vide Act 2 of 2013 (w.e.f. 15.2.2013) and explanation offered by the then Minister of Finance during his address in the Parliament on 17.12.2012 as noted above. Suffice it to note that the municipal law (Act of 2002) had been amended from time to time to incorporate the concerns and recom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e concluded that the scope of these technical deficiencies is relatively minor. It is not expected that there will be any impact on the effectiveness of India's AML regime. The deficiency is mostly addressed." (emphasis supplied) 265. To put it differently, the section as it stood prior to 2019 had itself incorporated the expression "including", which is indicative of reference made to the different process or activity connected with the proceeds of crime. Thus, the principal provision (as also the Explanation) predicates that if a person is found to be directly or indirectly involved in any process or activity connected with the proceeds of crime must be held guilty of offence of money-laundering. If the interpretation set forth by the petitioners was to be accepted, it would follow that it is only upon projecting or claiming the property in question as untainted property, the offence would be complete. This would undermine the efficacy of the legislative intent behind Section 3 of the Act and also will be in disregard of the view expressed by the FATF in connection with the occurrence of the word "and" preceding the expression "projecting or claiming" therein. This Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so liable. The principle underlying this analysis by the Constitution Bench must apply proprio vigore to the interpretation of Section 3 of the 2002 Act. To the same end, this Court in the case of Ishwar Singh Bindra v. The State of U.P., Joint Director of Mines Safety and Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd, interpreted the word "and" in the concerned legislation(s) as word "or" to give full effect to the legislative intent. 267. The Explanation as inserted in 2019, therefore, does not entail in expanding the purport of Section 3 as it stood prior to 2019, but is only clarificatory in nature. Inasmuch as Section 3 is widely worded with a view to not only investigate the offence of money-laundering but also to prevent and regulate that offence. This provision plainly indicates that any (every) process or activity connected with the proceeds of crime results in offence of money-laundering. Projecting or claiming the proceeds of crime as untainted property, in itself, is an attempt to indulge in or being involved in money-laundering, just as knowingly concealing, possessing, acquiring or using of proceeds of crime, directly or indirectly. This is reinforced by the stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f commission of the scheduled offence. In other words, the criminal activity may have been committed before the same had been notified as scheduled offence for the purpose of the 2002 Act, but if a person has indulged in or continues to indulge directly or indirectly in dealing with proceeds of crime, derived or obtained from such criminal activity even after it has been notified as scheduled offence, may be liable to be prosecuted for offence of money-laundering under the 2002 Act - for continuing to possess or conceal the proceeds of crime (fully or in part) or retaining possession thereof or uses it in trenches until fully exhausted. The offence of money-laundering is not dependent on or linked to the date on which the scheduled offence or if we may say so the predicate offence has been committed. The relevant date is the date on which the person indulges in the process or activity connected with such proceeds of crime. These ingredients are intrinsic in the original provision (Section 3, as amended until 2013 and were in force till 31.7.2019); and the same has been merely explained and clarified by way of Explanation vide Finance (No. 2) Act, 2019. Thus understood, inclusion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction is to be liberally construed so as to give effect to the governing principles embodied in the legislation (Winchester Court Ld. v. Miller); and I think we should do the same. Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticized. A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meaning and intendment of the Act itself, (b) where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant object which it seems to subserve, (c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful, (d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment, and (e) it cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an Act by becoming an hindrance in the interpretation of the same." (emphasis supplied) 276. However, in the present case we find that the Explanation only sets forth in motion to clear the mist around the main definition, if any. It is not to widen the ambit of Section 3 of the 2002 Act as such. Further, the meaning ascribed to the expression "and" to be read as "or" i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strokes of drafting the Act, the intention was always to have a preventive Act and not simply a money-laundering (penal) Act. Today, if one dives deep into the financial systems, anywhere in the world, it is seen that once a financial mastermind can integrate the illegitimate money into the bloodstream of an economy, it is almost indistinguishable. In fact, the money can be simply wired abroad at one click of the mouse. It is also well known that once this money leaves the country, it is almost impossible to get it back. Hence, a simplistic argument or the view that Section 3 should only find force once the money has been laundered, does not commend to us. That has never been the intention of the Parliament nor the international Conventions. 280. We may also note that argument that removing the necessity of projection from the definition will render the predicate offence and money-laundering indistinguishable. This, in our view, is ill founded and fallacious. This plea cannot hold water for the simple reason that the scheduled offences in the 2002 Act as it stands (amended up to date) are independent criminal acts. It is only when money is generated as a result of such acts that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tainted property in the formal economy. The Explanation inserted to Section 3 by way of amendment of 2019 does not expand the purport of Section 3 but is only clarificatory in nature. It clarifies the word "and" preceding the expression projecting or claiming as "or"; and being a clarificatory amendment, it would make no difference even if it is introduced by way of Finance Act or otherwise. (b) Independent of the above, we are clearly of the view that the expression "and" occurring in Section 3 has to be construed as "or", to give full play to the said provision so as to include "every" process or activity indulged into by anyone. Projecting or claiming the property as untainted property would constitute an offence of money-laundering on its own, being an independent process or activity. (c) The interpretation suggested by the petitioners, that only upon projecting or claiming the property in question as untainted property that the offence of Section 3 would be complete, stands rejected. (d) The offence under Section 3 of the 2002 Act is dependent on illegal gain of property as a result of criminal activity relating to a scheduled offence. It is concerning the process or ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Clause (a) of sub-section (1) of Section 44 of the 2002 Act is to be regarded as directory in nature and this provision is also read down to mean that the Special Court may exercise judicial discretion on case-to-case basis. (b) We do not find merit in the challenge to Section 44 being arbitrary or unconstitutional. However, the eventualities referred to in this section shall be dealt with by the Court concerned and by the Authority concerned in accordance with the interpretation given in this judgment. (xiii)(a) The reasons which weighed with this Court in Nikesh Tarachand Shah for declaring the twin conditions in Section 45(1) of the 2002 Act, as it stood at the relevant time, as unconstitutional in no way obliterated the provision from the statute book; and it was open to the Parliament to cure the defect noted by this Court so as to revive the same provision in the existing form. (b) We are unable to agree with the observations in Nikesh Tarachand Shah distinguishing the enunciation of the Constitution Bench decision in Kartar Singh and other observations suggestive of doubting the perception of Parliament in regard to the seriousness of the offence of money-laundering, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecords presented by the authorised representative of ED for answering the issue of need for his/her continued detention in connection with the offence of money-laundering. (xix) Even when ED manual is not to be published being an internal departmental document issued for the guidance of the Authorities (ED officials), the department ought to explore the desirability of placing information on its website which may broadly outline the scope of the authority of the functionaries under the Act and measures to be adopted by them as also the options/remedies available to the person concerned before the Authority and before the Special Court. (xx) The petitioners are justified in expressing serious concern bordering on causing injustice owing to the vacancies in the Appellate Tribunal. We deem it necessary to impress upon the executive to take corrective measures in this regard expeditiously. (xxi) The argument about proportionality of punishment with reference to the nature of scheduled offence is wholly unfounded and stands rejected." (Emphasis supplied) Clause (v) of the conclusion assumes significance. Clause (v) is answering the interpretation of Section 3 and holds that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, unless it is so registered with the jurisdictional police and/or pending enquiry/trial including by way of criminal complaint before the competent forum. If the person is finally discharged/acquitted of the scheduled offence or the criminal case against him is quashed by the Court of competent jurisdiction, there can be no offence of money laundering against him or any one claiming such property being the property linked to stated scheduled offence through him." Learned ASG appearing for the respondent, in all fairness, does not dispute the above position of law declared by this Court. The result of the discussion aforesaid is that the view as taken by the Trial Court in this matter had been a justified view of the matter and the High Court was not right in setting aside the discharge order despite the fact that the accused No. 1 had already been acquitted in relation to the scheduled offence and the present appellants were not accused of any scheduled offence. In view of the above, this appeal succeeds and is allowed. The impugned judgment and order dated 17.12.2020 is set aside and the order dated 04.01.2019 as passed by the Trial Court, allowing discharge application of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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