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TMI Blog2022 (4) TMI 1549X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 8 states where on conclusion of a trial under this Act, the Special Court finds that the offence of money-laundering has not taken place or the property is not involved in money-laundering, it shall order release of such property to the person entitled to receive it. That means, prior to the amendment, the power of confiscation and releasing the property to the holder was within the jurisdiction of the adjudicating authority under the PML Act, whereas in the Amendment Act, 2012 (Act 2 of 2013), the power was entrusted with the Special Court. Admittedly, alleged offence by the petitioners was said to have committed prior to the amendment to the PML Act w.e.f. from 15.2.2013. As per the allegation against the petitioners and as per the proceedings of the CEC dated 02.07.2011, the CBI filed charge sheet as on 02.08.2013, i.e. much prior to the amendment of Section 8. Therefore, the old Amendment Act, 2009 (Act 21 of 2009) will applicable to the case on hand. Once the ED submitted no objection before the appellate Tribunal for release of the property in favour of the petitioners stating that no offence was made out against them in view of the discharge of the petitioners in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undering Act, 2002 as illegal and void ab initio and for other reliefs. 2. Heard learned Senior counsel appearing for the counsel for the petitioners and the Special Counsel for the respondent-Directorate of Enforcement (hereinafter referred to as 'ED'). 3. The case of the petitioners is that the respondent filed a complaint under Section 200 of Cr.P.C. read with Section 45(1) of PML Act for the offences punishable under Sections 3 and 4 of Prevention of Money Laundering Act, 2002 (hereinafter referred to as 'PML Act') wherein it is alleged that a FIR has been registered by CBI on 01.10.2011 for the offences punishable under Sections 120B, 379, 411, 420, 427, 447, 468, 471 of IPC, Sections 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 (hereinafter referred to as 'P.C. Act') and Section 26 of Indian Forest Act, 1927 against petitioner No. 1 and others. After investigation, the CBI filed the charge-sheet before the XLVI Additional City Civil and Sessions and Special Judge for CBI Cases, Bengaluru on 02.08.2013. It is further alleged that the offence under the P.C. Act and other offences are the scheduled offences and therefore, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olved in the present proceeding shall stand adjudicated by means of present order and no such question would be open for re-examination by anybody or authority. 6. As per the proceedings of the joint team of CEC dated 02.07.2011, the area of encroachment was found to be 14.31 Ha. However, 2.46 Ha. was used as mining pit and the balance area is used for dump, etc. The SCCL has also considered the fact that the original mining lease No. 636 was granted on 20.05.1966. It is also mentioned in Annexure-I of charge sheet filed by CBI at Kammathervu village, Sandur taluk that the said mining lease was granted in favour of 'Shri Motilal J Boal' in 1962 and later, transferred to 'M/s. Motilal J Boal' in 1972 for extracting the iron ore area of 22.23 Ha (50 acres) for a period of 20 years with effect from 1966. M/s. Deccan Mining Syndicate which was a partnership firm of Shri S.M. Jain and Smt. Kamala S. Jain was started mining in 1981. On 25.09.1991, a Private Limited Company in name of M/s. Deccan Mining Syndicate Private Ltd. came into existence and took over the partnership firm M/s. Deccan Mining Syndicate. A charge sheet came to be filed regarding criminal conspirac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her contended that the final report submitted by the CBI had also not taken note of the fact that the petitioner had been doing its mining activities in accordance with law. 10. It is further contended that the orders and directions issued by this Court in W.P. No. 19766/2005 which had clearly directed to re-draw the sketch of mining lease No. 1111 and it was only consequent thereto, the petitioner had been conducting the mining activities. The very basis for charge sheet and consequent investigation of CBI had failed to notice and appreciate this fact. The Final report by CBI was a clear miscarriage of justice. 11. It is further contended that in furtherance of the report of the CBI the basis for initiating action under the PML Act issuing provisional attachment order dated 28.03.2014 came to be confirmed by the adjudicating authority under Section 8 of the PML Act by order dated 06.08.2014. No credence has been given to the binding nature of the order passed by this Court in W.P. No. 10335/1998 and connected with W.P. No. 19766/2005, which were disposed on 31.03.2008. Hence, the entire proceedings is illegal in view of the non existence of the scheduled offence. The dischar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 of the PML Act, 2002 came into force on 01.07.2005 and subsequently, from time to time, it was amended and there was drastic change in respect of possession of proceeds of the crime and release of the same. The case was registered against the petitioners subsequent to the amendment came into force on 15.02.2013. Therefore, the proceedings against the petitioners and the provisional attachment has been set aside and the same was released in favour of the petitioner company. Such being the case, the petitioners are entitled for quashing the criminal proceedings. Hence, prayed for allowing the petition. Learned Senior Counsel for the petitioners has relied on the judgment of the Hon'ble Supreme Court in case of RADHESHYAM KEJRIWAL Vs. STATE OF WEST BENGAL AND ANOTHER reported in 2011(3) SCC 581. 14. Per contra, learned Special Counsel appearing for the respondent-ED objected the petition and contended that the proceedings under the PML Act is a stand alone offence and since merely the Special Court has discharged the accused, the offence committed under the PML Act will not vanish and therefore, the accused is required to face the trial. The provisional attachment order is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le under Sections 120-B, 379, 420, 427, 447 read with Section 13(2) read with Section 13(1)(D) of Prevention of Corruption Act. Sections 120B and 420 of IPC and Section 13(2) and 13(1)(d) of PC Act are the scheduled offences under the PML Act. Therefore, the ED registered a case in ECIR/BGZO/09/2013 on 19.09.2013 for commission of the offence of money laundering as per Sections 48 and 49 of PML Act. The CBI filed the charge sheet against the petitioners and others including the officials of the Department of Commerce and Industries. 17. It is an admitted fact that the case was registered by the ED based upon the cases registered by the CBI and the CBI also filed the charge sheet. The Special Court took the cognizance of the offence in Special C.C. No. 165/2013 and the accused persons filed an application for discharge. The Special Court by considering the case of the parties, allowed the application and discharged accused Nos. 1 to 7 vide order dated 30.01.2016. It is also an admitted fact that respondent ED filed a revision petition against the order of discharge which is pending before this Court. 18. The learned Senior Counsel for the petitioners contended that the case re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the existence of a predicate offence for initiation of proceedings under the PML Act is not a condition precedent or in other words, the offence under Section 3 of the PML Act is the stand alone offence. Hence, the presence of scheduled offence as prescribed under the PML Act would not be a condition precedent for proceeding against such person under the PML Act. 21. The contention of the petitioners' Counsel is that the NMDC as well as the petitioners already filed writ petitions before this Court in W.P. No. 10335/1998 connected with W.P. No. 19766/2005 and the said writ petitions were considered by the Co-ordinate Bench of this Court and it was held that the prayer of the NMDC for quashing the notification dated 13.06.2006 cannot be granted and the subsequent lease deed 15.07.2006 cannot be declared as illegal and the notification dated 4.4.2005 challenged by the petitioners also held not to be quashed in its entirety. The Co-ordinate Bench has also held that the first renewal of licence in favour of NMDC over 647.50 Ha. (1600 acres) is upheld but not as per the sketch appended thereto. However, the sketch was re-drawn from the standing point A and end point of ML o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hallenged before the appellate Tribunal wherein the appellate Tribunal vide order dated 20.06.2016 has observed as under: Learned counsel for the respondent submits that he has taken the instruction from the respondent, who has no objection if the appellant apply for releasing of the property before the special court as per the provision in view of the discharge order passed in favour of the appellant. Learned counsel for the appellant agrees to said suggestion made by the learned counsel for the respondent. Let the appellant may take necessary steps in this regard as per law. 24. The learned Senior counsel for the petitioners has relied upon the judgment of the Hon'ble Supreme Court reported in Radheshyam Kejriwal's case (supra). Paragraphs 38 and 39 of the said judgment read as under: 38. The ratio which can be culled out from these decisions can broadly be stated as follows: (i) Adjudication proceedings and criminal prosecution can be launched simultaneously; (ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution; (iii) Adjudication proceedings and criminal proceedings are independent in nature to each ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication to release the property by directing to execute the indemnity bond of the value of the property which was attached. The learned counsel for the petitioners also brought to the notice of this Court that prior to the amendment to Section 8(5) of the PML Act w.e.f. 01.06.2009 till 15.02.2013, before the Amendment Act, 2012, it provides that where on conclusion of a trial for any scheduled offence, the person concerned is acquitted, the attachment of the property or retention of seized property or record under Sub section (3) and net income, if any, shall ceased to have effect, and as per Section 8(6) of the PML Act, where the attachment of the property or retention of the seized property or record becomes final under clause (b) of Section (3), the adjudicating authority shall, after giving an opportunity of being heard to the persons concerned, make an order confiscating such property. 27. Whereas after the amendment of the Act in the year 2012, Sub-section (5) of Section (8) provides where on conclusion of a trial, an offence under this Act, the Special Court finds that the offence of money-laundering has been committed, it shall order that such property involved in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioners for framing charge. After analysing the documents produced by the CBI and after the conclusion of the criminal case, the trial Court has also released the property in question for interim custody which was not challenged by the ED before the Hon'ble Supreme Court or before this Court. The order of the appellate Tribunal also was not appealed before this Court or the Hon'ble Supreme Court, which has attained the finality. Therefore, the standard of proof in criminal prosecution is higher degree than the standard of proof required before the adjudicating authority, when the adjudicating authority themselves stated that no offence is committed and disposed the appeal and ordered to release the property. The request of the ED counsel for continuing the prosecution against the petitioners is nothing but abuse of process of law. At the cost of repetition, the Hon'ble Supreme Court in Radheshyam Kejriwal's case at paragraph 39 has held as under: 39. In our opinion, therefore, the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is identical and the exoneration of the person ..... X X X X Extracts X X X X X X X X Extracts X X X X
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