9911796707
TMI Blog2023 (9) TMI 963X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 21 of the FEO Act gives an overriding effect to the FEO Act and therefore even as per Section 5 of Cr.P.C. and also as per Section 21 of the FEO Act, the special procedure prescribed under the FEO Act will not get affected by any provision under Cr.P.C. All the requirements under Section 4 of the FEO Act and under Rule 3 of the FEO Rules are properly complied with in this case - there are no reason to interfere with the impugned order and hence the application is rejected. - SARANG V. KOTWAL, J. For the Applicant : Mr. Vijay Aggarwal, Advocate a/w. Rahul Agarwal, Yash Agrawal, Abhiraj Rai, Jasmin Purani, Rohit Kaul, Yashwardhan Tiwari. For the Respondent No. 1-State : Mr. A.R. Patil, APP. For the Respondent No. 2 : Mr. H.S. Venegavkar, Special P.P. a/w. Aayush Kedia. ORDER: 1. Heard Shri Vijay Aggarwal, learned counsel for the Applicant in both Applications, Shri A.R. Patil, learned APP for the Respondent No.1-State and Shri H.S. Venegavkar, learned Special P.P. for the Respondent No. 2. 2. The Applicant has challenged the order dated 30.8.2019 passed by the learned Special Judge, Greater Bombay below Exhibit-55 in Criminal M.A. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed. SUBMISSIONS ON BEHALF OF THE APPLICANT : 4. Learned counsel Shri Aggarwal appearing for the Applicant relied on various provisions of the FEO Act, the Code of Criminal Procedure 1973 and the PML Act. He made the following submissions: i. Section 16 of the FEO Act puts the burden on the Director or the authorized person to establish that an individual is a fugitive economic offender or that the property in question was the proceeds of crime or any other property in which the individual, alleged to be an economic offender, has an interest. He therefore submitted that the averments in the application are important and they have to be supported by a proper affidavit. In the present case, the verification clause below the application under section 4 of the FEO Act is not proper. The requirements of section 297 of Cr.P.C. and the provisions of the Criminal Manual issued by the Bombay High Court for the guidance of the criminal courts are not complied with and hence the application was not maintainable. ii. There are various averments in the application filed by the Deputy Director of ED which were not true and could not be true. Therefore, it was necessary that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Cr.P.C. were not applicable. According to Shri Aggarwal, there was no inconsistency between FEO Act and Cr.P.C. in respect of these provisions. iv. His next submission was that, under section 21 of FEO Act it was mentioned that the provisions of the said Act shall have effect notwithstanding anything inconsistent therewith contained in any other law. Therefore, since there was no inconsistency with Cr.P.C., this overriding effect did not affect the provisions of Cr.P.C. He submitted that section 22 of FEO Act makes the position more clear as it is mentioned that the provisions of FEO Act shall be in addition to and not in derogation of any other law. Therefore, according to Shri Aggarwal, the provisions of the FEO Act will have to be read in addition to the provisions of Cr.P.C.. v. Shri Aggarwal referred to Rule 3 of the Declaration of Fugitive Economic Offender (Forms And Manner of Filing Application) Rules 2018 (hereinafter referred to as FEO Rules ). He submitted that this Rule will have to be read with Section 297 of Cr.P.C.. In support of this submission, he relied on the judgment of a Single Judge Bench of this court in the case of M/s. Jaimin Jewelery Exports P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though argument was advanced in that behalf and it was referred to in Jaimin's case (supra), and therefore the matter should be remanded back to him for passing a proper order. In support of this contention he relied on the observations of the Hon ble Supreme Court in the case of Jitendra Kumar Vs. State of Bihar Decided by the Hon ble Supreme Court dated 10.5.2019 in Criminal Appeal No. 8/2019.. In paragraph-9 of the said order, the Hon ble Supreme Court has observed that there was no reasoning on the submissions urged by the learned counsel for the parties and therefore the order passed by the High Court was not proper. In the same context, he relied on the judgment of a Division Bench of this court in the case of Yogesh Waman Athavale Vs. Vikram Abasaheb Jadhav Decided on 11.2.2020 in Contempt Petition No. 127/2019 (Bombay High Court. vii. His last submission was that this was an important issue which should have been decided as the preliminary issue because it goes to the root of the jurisdiction of the court to entertain such application as it was not supported by a proper affidavit. In support of this submission, he relied on the judgment of the Hon ble Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven by the learned Special Judge. He took into consideration the alternate arguments and gave his reasons with reference to section 297 of Cr.P.C.. REJOINDER ON BEHALF OF THE APPLICANT : 6. In rejoinder to the submissions of Shri Venegavkar, Shri Aggarwal further submitted that in all the applications which are filed in all the courts, an affidavit is necessary. As per the definition of evidence under section 3 of the Evidence Act, this application is an evidence , and as per the special procedure with reference to this particular application, it was necessary that it was affirmed with proper verification. REASONS : 7. Before referring to the facts in the present case, it is necessary to reproduce certain provisions which are referred to by both the learned Counsel repeatedly: Sections 5 297 of Cr.P.C. : 5. Saving. Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. 297. Authorities before wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... economic offender, he may file an application in such form and manner as may be prescribed in the Special Court that such individual may be declared as a fugitive economic offender. (2) The application referred to in sub-section (1) shall contain (a) reasons for the belief that an individual is a fugitive economic offender; (b) any information available as to the whereabouts of the fugitive economic offender; (c) a list of properties or the value of such properties believed to be the proceeds of crime, including any such property outside India for which confiscation is sought; (d) a list of properties or benami properties owned by the individual in India or abroad for which confiscation is sought; and (e) a list of persons who may have an interest in any of the properties listed under clauses (c) and (d). (3) The Authorities appointed for the purposes of the Prevention of Money-laundering Act, 2002 (15 of 2003) shall be the Authorities for the purposes of this Act. ===== 11. Procedure for hearing application. (1) Where any individual to whom notice has been issued under subsection (1) of section 10 appears in person at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a contracting State, the Special Court may issue a letter of request to a Court or authority in the contracting State for execution of such order. (6) Every letter of request to be transmitted to a contracting State under sub-section (5) shall be transmitted in such form and manner as the Central Government may, by notification, specify in this behalf. (7) The Special Court may, while making the confiscation order, exempt from confiscation any property which is a proceed of crime in which any other person, other than the fugitive economic offender, has an interest if it is satisfied that such interest was acquired bona fide and without knowledge of the fact that the property was proceeds of crime. (8) All the rights and title in the confiscated property shall, from the date of the confiscation order, vest in the Central Government, free from all encumbrances. (9) Where on the conclusion of the proceedings, the Special Court finds that the individual is not a fugitive economic offender, the Special Court shall order release of property or record attached or seized under this Act to the person entitled to receive it. (10) Where an order releasing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to bring the individual believed to be a fugitive economic offender back to India; (v) a list of properties or value of such properties believed to be the proceeds of crime, including any such property outside India for which confiscation is sought; (vi) a list of properties or benami property owned by the individual believed to be a fugitive economic offender in India or abroad for which confiscation is sought; (vii) a copy of a confiscation order issued by the Adjudicating Authority under the Prohibition of Benami Property Transactions Act, 1988, if any; (viii) a list of persons who may have an interest in any of the properties listed under clauses (v) and (vi). (2) The index and material prepared under sub-rule (1) shall be signed on each page and forwarded to the Special Court in a sealed envelope, indicating a reference number and date of despatch. (3) The Director or the authorised officer, as the case may be, shall maintain registers and other records such as acknowledgement slip register and dak register and shall ensure that necessary entries are made in the register immediately as soon as a copy of the application along with the materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egavkar that the required format of the application was complied with by the Respondent No. 2 herein. Section 4 of FEO Act refers to an application in such form and manner as may be prescribed. This form and manner is prescribed under Rule 3 of the FEO Rules, which are reproduced hereinabove. I find that the application is filed in the format laid down in the said Rule 3. Therefore, there is sufficient compliance with the requirement of Section 4 of the FEO Act. 11. Therefore, accepting the arguments of Shri Aggarwal that a thing which is directed to be done in a particular way has to be done in that way only, in the present case, I find that the application is properly filed under Section 4 of FEO Act. 12. As rightly submitted by Shri Venegavkar, when special procedure is provided under the Special Act, i.e. the FEO Act in this case, this procedure will have to be followed, and in this case the said procedure has been followed. Section 5 of Cr.P.C. gives more clarity to this issue. Section 5 of Cr.P.C. provides that nothing contained in the Cr.P.C., in the absence of specific provision to the contrary, affect any special law or any special form of procedure prescribed by any ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
