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TMI Blog2024 (3) TMI 861X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the Enforcement Directorate that these properties were earned after enactment of PMLA. The whole case of the applicants rests on presumption that the valuation of the certain articles seized from the houses of applicants has not been properly done and as per the definition of property contained in section 2(y) of the PMLA, the offence, if is committed, pertaining to the value of more than 30 Lakh, the applicants only in that condition may be prosecuted under PMLA, and at the relevant time, the offence under Wildlife Act was falling under Chapter B of Schedule appended with PMLA. Much emphasis has been given on the fact that the valuation of the seized articles is based on a website run by an NGO. However, allegations are also to tune that apart from seized articles the proceeds of crime has also been used for purchase of some properties by mother of the applicants. Thus, it is not the seized articles alone whose valuation is to be seen. Moreover, when there is no known mode of assessing the value of seized articles as they could not be sold in open market legally, the value of these articles may be what these articles may fetch anywhere may be taken as the market value of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsite www.l egalserviceindia.com/articles/pooch . 3. It is vehemently submitted that the articles, which are alleged to have been recovered from the premises of the applicants, have not been property valued by the Enforcement Directorate or by the investigating agency and the report which has been made the basis of valuation is not an authenticated report, thus, in absence of proper valuation of the articles recovered from the premises of the applicant by a registered valuer and without any cogent evidence with regard to generation of proceeds of crime from these goods, the order, rejecting the discharge application of the applicants, has resulted into serious miscarriage of justice to the applicants. 4. It is vehemently submitted that ECIR of the instant case has been registered on the basis of schedule offence bearing FIR No.0230 of 2007 dated 04.12.2007 registered at police station Kareli, district Allahabad (now Prayagraj) under sections 9, 39, 44, 44-A, 48-A, 49-B, 51 and 58-B of the Wild Life (Protection) Act, 1972 read with section 26 of the Indian Forest Act, 1920 and section 3(1) The Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 and after submis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passing the impugned orders and also by framing the charges against the applicants and, therefore, the impugned orders be set-aside and all the proceedings pending before the trial/special court be quashed. 7. On the other hand, Shri Rohit Tripathi, learned counsel for the respondent- Enforcement Directorate, vehemently submits that at the stage of framing of charges only a prima facie case and sufficient grounds are required to be seen and, it is not a stage where meticulous exercise of appreciating the material/evidence produced by the Enforcement Directorate should be made. It is also submitted that at the stage of framing of charge only sufficiency of evidence/material collected by the investigating agency should be assessed and probative value of such material could not be gone into at the stage of framing of charges and, at this stage the sufficient ground or material must not be of the standard as required for conviction. It is also submitted that the market value of the properties pertaining to which offence is shown to have been committed has been defined under section 2(zb) PMLA which means the market value of any property on the date of its acquisition and if the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he accused. Section 227 of the Code provides for the eventuality when the accused shall be discharged. If not discharged, the charge against the accused is required to be framed under Section 228. .. 7. Similarly, in respect of warrant cases triable by Magistrates, instituted on a police report, Sections 239 and 240 of the Code are the relevant statutory provisions. Section 239 requires the Magistrate, to consider 'the police report and the documents sent with it under Section 173' and, if necessary, examine the accused and after giving accused an opportunity of being heard, if the Magistrate considers the charge against the accused to be groundless, the accused is liable to be discharged by recording reasons thereof. 8. What is to the meaning of the expression 'the record of the case' as used in Section 227 of the Code. Though the word 'case' is not defined in the Code but Section 209 throws light on the interpretation to be placed on the said word. Section 209 which deals with the commitment of case to Court of Session when offence is triable exclusively by it, inter alia, provides that when it appears to the Magistrate that the offence is triable exclusiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and send the record of the inquiry and any weapon or other thing which is to be produced in evidence, to the Court of Session as provided in Subsection (14). The aforesaid Sections 207 and 207(a) have been omitted from the Code and a new Section 209 enacted on the recommendation of the Law Commission contained in its 41st Report. It was realised that the commitment inquiry under the old Code was resulting in inordinate delay and served no useful purpose. That inquiry has, therefore, been dispensed with in the Code with the object of expeditious disposal of cases. Instead of committal Magistrate framing the charge, it is now to be framed by Court of Session under Section 228 in case the accused is not discharged under Section 227. This change brought out in the code is also required to be kept in view while determining the question. Under the Code, the evidence can be taken only after framing of charge. 12. Thereafter Honble Apex Court by referring to the ratio laid down in State of Bihar v. Ramesh Singh MANU/SC/0139/1977 : 1977CriLJ1606, State of Delhi v. Gyan Devi and Ors. MANU/SC/0649/2000, State of Madhya Pradesh v. S.B. Johari and Ors. MANU/SC/0025/2000 : 2000CriLJ944 State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. 14. Hon'ble Supreme Court in the case of State of Supt. And Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and others (1979) 4 SCC 274 has held as under:- 18. It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had therefore, to consider the above question on a general consideration of the materials placed! before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh MANU/SC/0139/1977 : 1977CriLJ1606 , the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the CrPC, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as the existence of the factual ingredients ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no scope for doubt that the stage at which the magistrate is required to consider the question of framing of charge under Section 245(1) is a preliminary one and the test of prima facie case has to be applied. In spite of the difference in the language of the three sections, the legal position is that if the Trial Court is satisfied that a prima facie case is made out, charge has to be framed. 16. The above-mentioned law reports would demonstrate evidently that the duty of the trial court at the stage of discharge or framing of charges is to assess the sufficiency of the material for the purpose of framing of charges. It is also to be recalled that the sufficiency of evidence or material should not be so as is required for the purpose of conviction. It is only with regard to the moving further in the proceedings. 17. The allegations against the applicants are to tune that they were indulged in dealing with the skin and organs of prohibited animals from before the year 2007 and the same is punishable under various provisions of the Wildlife Act and the Indian Forest Act. It is also alleged that applicants have parked proceeds of crime earned by them in the bank-account of their m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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