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TMI Blog2018 (7) TMI 2296X X X X Extracts X X X X X X X X Extracts X X X X ..... ions Judge, Allahabad with a prayer that cognizance of offence of money laundering for violation of Section 3 of the said Act, may be taken against the accused persons and they may be punished under Section 4 of the said Act and also for issuing order for confiscation of the property attached under Section 5 of the Act(PMLA) and confirmed under Section 8 of the Act in terms of Section 8(5)of the Act. The said complaint was registered as Complaint Case No. 4 of2018 ( Assistant Director Vs. Rajendra Singh & others). It is further mentioned that Special Investigation Team (S.I.T.), U. P. had registered a Case Crime No. 7 of 2010 on 27.08.2010 in pursuance of the order dated03.12.2010 passed by Lucknow Bench of this Court in Writ Petition No.10503 of 2009 (Vishwanath Chaturvedi Vs. Union of India & others) against the 36 accused persons. The allegation made by S.I.T. was that during the period 2004-05 and 2005-06, the food grains for Public Distribution System (in short PDS) were diverted to black market, which caused a huge loss to the Government exchequer to the tune of Rs. 80.64lakhs and corresponding wrongful gains to the accused persons. Subsequently the case was taken up by Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... got prepared banker's cheques/demand drafts in favour of various kotedars and lifted the food grains from Food Corporation of India, Gonda and diverted the same into black market illegally for wrongful gain to himself and causing wrongful loss to the Government exchequer. He made expenditures towards purchase of five trucks and two plots situated at Parao, New Cold Storage Chauraha, Nawabganj, District Gonda and also constructed a Godown on the plots situated at Parao, which are not in conformity with his legal known sources of income and hence could be directly attributed to the wrongful gains acquired by him by diversion and selling the PDS food grains in black market. He projected the proceedings of crime as untainted in his statement recorded under Section 50 of PMLA and admitted that out of Rs. 3.63 crores (approx..) received from late Shiv Bux Singh, he prepared banker's cheques/drafts in favour of different kotedars for an amount of Rs. 2.53 crores and 92 lakhs was returned by him to Late Shiv Bux Singh and rest of the amount, i.e., Rs. 18 lakhs was retained by him as commission and out of this money he used 4 lakhs to purchase aplot at Parao, during 2005 and the rest a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal benefit of Rs.30-35 lakhs (approx.) which is being alleged to be proceeds of crime(P.O.C.) which is alleged to have been revealed in his admission made instatement under Section 50 of PMLA, 2002 on 15.09.2016 and the statement of Late Shiv Bux Singh made on 20.09.2016. It is further mentioned that the applicant has preferred an appeal under Section 26 of PMLA of 2002 challenging the order of the Adjudicating Authority dated01.09.2017 whereby his properties were attached along with an application for condonation of delay. Further it is mentioned that in the case filed by C.B.I. against him, he has got himself bailed out, however, his discharge application was rejected by C.B.I. Court vide order dated25.01.2016, against which he has preferred a Criminal Revision No. 208 of 2016 before Lucknow Bench, which is still pending and stay order has been passed therein. Further it is mentioned that the learned trial Court has failed to appreciate the fact that applicant had borrowed Rs. 17 lakhs from one Mr. Atma Prakash Singh and thereafter he took loan from the Bank and the loan taken from Atma Prakash Singh was returned. Further it was also ignored by the Trial Court that whatever mone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the applicant has relied upon the judgment and order dated 13/07/2017 passed by the High Court of Judicature at Madras in Cri. O.P. Nos.10497 and 10500 of 2017, Shri Ajay Kumar Gupta and 3Others vs Adjudicating Authority (PMLA) and 2 Others, in which in the first petition prayer was made to call for the records in Provisional Attachment Order No. 09/2017 dated 07/04/2017 in ECIR/CEZO/08/2015, Chennai Zone passed by the second respondent and quash the same, while in the other petition prayer was made to call for records in Original Complaint. No. 855 of 2017 filed by the second respondent before the Hon'ble Chairperson Adjudicating Authority, the first respondent under the Prevention of Money Laundering Act, 2002, and quash the same. (A) The facts of the above case were that the first petitioner was working as Asstt. Commissioner of Customs and Central Excise, Chennai, who resigned from service w.e.f. 14/4/2014. While he was working as an appraiser in Customs House, Chennai, Deputy Superintendent of Police, CBI had filed an F.I.R. No. RCMA 1/2005A/0031 on 29/06/2005 for alleged possession of assets and pecuniary resources in the name of first petitioner and his family ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to believe that the properties would be dealt with in any other manner; therefore the attachment officer had passed an order without any reason to believe that proceeds of crime were likely to be transferred or disposed. In the absence of any sufficient reason, arriving on such a conclusion by merely reproducing words "reason to believe", it could not be stated that order has been passed after considering the entire gamut of material and therefore the attachment was held to be not maintainable. (D) It was further held that the charge sheet was filed under Section13 of the Prevention of Corruption Act on 13/01/2009, while the said Section was included in the list of scheduled offences under the Prevention of Money Laundering Act on 01/06/2009, therefore subsequent amendment could not be given retrospective effect. It was also mentioned in this judgment that it was settled principle of law that the provisions of law cannot be retrospectively applied, as Article 20 (1) of the Constitution bars the ex post facto penal laws and no person can be prosecuted for any alleged offence which occurred earlier, by applying the provisions of law which have come in force after the alleged offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appended to the PMLA of 2002 by amendment Act 2 of 2013. This argument does not make it clear as to how the provision of Section 120B would be treated to be applicable for an offence committed during the period 2004-2006, as this provision was made punishable under PMLA of 2002 after 01.06.2009 by its inclusion in the said Part B of the schedule appended to the PMLA, 2002. (8) First of all, we would like to take up the objection raised by the learned counsel for the applicant that the offences which were alleged to have been committed by the applicant/accused were not made punishable under the PMLA, 2002 because the offences under the I.P.C. allegedly committed by the applicant were not part of either schedule A or schedule B of the aforesaid Act. According to him these sections were made punishable under the PMLA of 2002 in the year 2009, w.e.f. 01.06.2009. (9) We have gone through the entire provisions. The PMLA, 2002 was promulgated/came into force on 01.07.2005, vide G.S.R. 436(E), dated 1stJuly, 2005, published in the Gazette of India, Extra, Pt. II, Sec. 3(i), dated1st July, 2005. Therefore, the following was position, as on 1st July, 2005as regards inclusion of offences ..... X X X X Extracts X X X X X X X X Extracts X X X X
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