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TMI Blog2023 (1) TMI 809X X X X Extracts X X X X X X X X Extracts X X X X ..... to exist once the person charged with a scheduled offence stood acquitted for the said offence. However, the amendment of 2013 was done away with the unamended Section 8 of PMLA. Having discussed so far, it is clear and apparent that while the continuance of the proceeding under the PMLA was intricately linked to the scheduled offence proceeding, the Legislature attempted to erase the said distinction by introducing amendments which led to incongruent interpretations resorted to by the various High Courts. With the above ratio laid down by the Supreme Court [ 2022 (7) TMI 1316 - SUPREME COURT] , it has to be held that proceedings of money laundering are liable to be terminated with the underlined scheduled offences ending in acquittal, dismissal or being quashed. All the aforesaid decisions relief upon by the ED have been neutralized by the decision of the Apex Court in Vijay Madanlal Choudhury [ 2022 (7) TMI 1316 - SUPREME COURT] . In the plain language, if the foundation does not exist, how the edifice can survive. In other words, when the predicate offence fails, the foundation having been demolished, the superstructure is to fall and crumbl Application allowed. - CRL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Odisha Co-operative Consumer Federation (OCCF) which is the Nodal Agency for distribution of coal to the MSMEs within the State. It is claimed that the petitioner was the Power of Attorney holder of the Marketing Agent of M/s. Vinayak Mineral which was responsible for lifting coal on behalf of OCCF and to supply it to the MSMEs. However at the end, on completion of investigation, chargesheets were filed in connection with both the cases against the Government officers and the petitioner under the alleged offences. It is submitted that after lodging of the Vigilance cases, the ED launched prosecution vide ECIR/22/BSZO/2010 in Vigilance Case No.37 of 2010 and ECIR/23/BSZO/2010 vis- -vis Vigilance Case No.36 of 2010 under the PMLA, subsequently, however later the cases stood merged with the on 30th March, 2017 for the purpose of investigation with the initiation of a single proceeding in ECIR/23/BSZO/2010 dated 2nd December, 2010. 4. Heard Mr. Asok Mohanty, learned Senior Advocate for the petitioner and Mr. Bibekananda Nayak, learned counsel for ED. 5. Mr. Mohanty, learned Senior Advocate submits that the ED treated the offences under Section 13(2) read with Section 13(1)(d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties sought to justify the prosecution under the PMLA. Mr. Nayak, learned counsel for the ED submits that the PMLA is enacted to prevent money laundering and to pave the way for confiscation of property derived from or involved in money laundering and for matters connected therewith or incidental thereto which is in consonance with the International obligations under the Political Declaration and Global Programme of Action adopted by the General Assembly of the United Nations to curve the illicit activities of money laundering and the said Act has been amended from time to time in 2005, 2009, 2013 and 2019 to obviate the difficulties in its due implementation. It is further contended that the PMLA is a special law which contemplates distinct procedure and also provides initiation of prosecution in order to achieve the object of the law which cannot be equated with the regular criminal prosecution and such an action under the said Act cannot have any implication or impact on the outcome of other cases registered under the general law. So the essence of the argument of Mr. Nayak, learned counsel for the ED is that offence under Section 3 of the PMLA Act is independent and it has onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontained law and the offence registered thereunder can standalone independent of the predicate offence. A similar view has been expressed in Babulal Verma (supra) to the effect that offence under the PMLA registered on the basis of a scheduled offence stands on its own and does not require support of predicate/scheduled offence even if such an offence is compounded or results in acquittal or the proceeding is quashed, inasmuch as, investigation by ED under the said Act is not in any way affected or ceased to continue or wiped off. So the argument of Mr. Nayak, learned counsel for the ED is based on and heavily relying upon the decisions referred to above. 7. On a reading of the judgment of the Apex Court in Vijay Madanlal Choudhury (supra), it is made to appear that while dealing with the challenges as to the validity and interpretation of certain provisions of the PMLA and the procedure followed by the ED during enquiry, investigation under the said Act being violative of the Constitutional mandate, after a comprehensive and detailed analysis on the seminal points involved, held and concluded that the PMLA has a wider reach and captures every process and activity, direct or ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the country or abroad. Further, the scheduled offences include such offences as specified in Part A, B C of the Schedule to the PMLA. Considering the challenge in the present case, question would arise whether an offence of money laundering could still breathe and survive dehors a scheduled offence? 9. In fact, the PMLA is a law linked with the scheduled offence. The same is evident from a sincere reading of Sections 5 and 8 of PMLA as it stood prior to 2009 and 2013 Amendments. In Section 5 of the PMLA (as it was originally enacted), a condition prerequisite for an order of provisional attachment of property was that the accused has been charged of having committed a scheduled offence. The said requirement was diluted to the effect that notwithstanding the above, provisional attachment could be ensured under Section 5 of PMLA when the concerned officer expressed his view in writing that the failure to immediately attach property would likely frustrate or defeat the action against money laundering. 10. Section 8 of the PMLA prior to its 2013 Amendment), any attachment or retention of property under the PMLA would cease to exist once the person charged with a schedule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein that even in case of a person who is not initially booked for a scheduled offence but later so and subsequently acquitted of the scheduled offence, he can still be proceeded against under the PMLA. Despite such an amendment with introduction of an Explanation to Section 44, the Delhi High Court in Prakash Industries Vrs. Directorate of Encroachment 2022 SCC OnLine Del 2087 maintained the stand that once a competent authority finds that the predicate offence is either not evidenced or on facts, the authority concludes that no offence was committed, the proceeding under the PMLA would necessarily have to fall and be brought to a close. In the said decision, the Delhi High Court held that Section 44 and its Explanation cannot be interpreted to mean that proceeding under the PMLA would remain unaffected by an acquittal or quashing of the proceeding relating to a scheduled offence. In the similar vein, the Delhi High Court in Directorate of Enforcement Vrs. Gagandeep Singh 2022 SCC OnLine Delhi 514 while interpreting the PMLA after 2018 Amendment came into force held that involvement in a scheduled offence is a precondition to the offence of money laundering. In the said case, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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