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TMI Blog2023 (9) TMI 1462X X X X Extracts X X X X X X X X Extracts X X X X ..... f the FIR under Section 154 of Cr.P.C. and/or filing of a complaint under Section 200 of Cr.P.C. The PML Act, 2002 also prescribes for filing of complaint before the Special Court under Section 44 thereof. Scope of ECIR - HELD THAT:- The ECIR is an internal document created by the Department before initiating penal action or prosecution against the person involved with process or activity connected with the proceeds of crime. In other words, registration of ECIR is not akin to launching of prosecution, which can only be done by way of lodging a complaint under Section 44 of the PML Act. Thus, a document or an act, which is administrative in nature, cannot partake the nature of criminal prosecution so as to attract judicial review. In the case of STATE OF WEST BENGAL AND ORS. VERSUS SUJIT KUMAR RANA [ 2004 (1) TMI 684 - SUPREME COURT ], the Supreme Court held Once it is held that the criminal court had no power to deal with the property seized under the Act, the question of the High Court exercising its jurisdiction under Section 482 of the Code of Criminal Procedure would not arise. In so far as the case laws cited at the bar, particularly by learned Senior Counsel appearing for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /ECIR/13/2021 and all proceedings initiated by the Enforcement Directorate consequent upon registration of the ECIR against him. 2. Briefly stated, the petitioner seeks the above relief on the ground that the Supreme Court of India is in seisin over the matter relating to discharge of the petitioner from the schedule/predicate offence under the Prevention of Corruption Act. It is contended that as per the settled position of law if the proceedings in the schedule/predicate offence are ultimately quashed, the proceedings emanating from ECIR registered against him for commission of the offence under Section 3 of the Prevention of Money-Laundering Act, 2002 (for short 'PML Act'), not being a stand-alone offence, would automatically fall to the ground. Therefore, pending adjudication of the petitioner's prayer for discharge from the scheduled offence by the Supreme Court, continuance of investigation against him for the offence under the PML Act would be an abuse of the process of the Court. 3. A preliminary objection was raised by learned counsel for the Enforcement Directorate regarding maintainability of the application under Section 482 of Cr.P.C. mainly on the ground that an ECI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15.04.2021 pursuant to which he appeared and submitted certain documents. Again on 15.06.2021, he was directed to appear on the same day but he could not appear because of non-issue of transit pass by the district authority. On 11.05.2022, a search was conducted in the office of the petitioner and his wife by the E.D., during which cash amounting to Rs.14,60,900/-, fixed deposit (receipts) amounting to Rs.133,17,03,387/- were collected from his office and cash of Rs.55 lakhs from the house of his wife. Thereafter, the ED filed application under Section 17(4) of PML Act before adjudicating authority for retention of movable properties in the form of Currency Digital Devices Records and documents seized during the search operations. The petitioner sought clarification from the Director of Mines Odisha on 21.06.2022 regarding operation of Kalaparbat Iron Ore mines, in response to which the Director of Mines, clarified that the lease was operated by the mines under the different provisions of the MC Rules, 1960. The adjudicating authority however, in its order dated 01.11.2022 observed that the materials shown in the O.A. are sufficient to arrive at the conclusion that retention of rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further contend that if the maintainability of the predicate offence itself is under adjudication it would be a travesty of justice to allow the present proceedings to continue. Mr. Nayyar has relied upon the decision of the Supreme Court in the case of State of Karnataka vs. M. Devendrappa, reported in (2002) 3 SCC 89 in this regard as also the observations of the Supreme Court in the case of Vijay Madanlal Choudhary (supra), wherein it was held that once the schedule offence is not established, the proceeding under the PML Act must fail. The judgment of the Delhi High Court in the case of Emta Coal Ltd. and others. Vs. The Deputy Director, Directorate of Enforcement and others (W.P.(C) No. 3821 of 2022) has also been relied upon. As regards maintainability of the application under Section 482 of Cr.P.C., Mr. Nayyar has relied upon the judgment of the Telengana High Court in the case of Sukesh Gupta vs. Directorate of Enforcement, Hyderabad and another, reported in 2023 SCC OnLine TS 987 and of Sikkim High Court in the case of Smt. Usha Agarwal vs. Union of India and others, (2017) SCC OnLine, Sikk 146. On the above basis, Mr. Nayyar would sum up his arguments by contending that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no corresponding provision in the 2002 Act requiring registration of offence of money- laundering. As noticed earlier, the mechanism for proceeding against the property being proceeds of crime predicated in the 2002 Act is a sui generis procedure. No comparison can be drawn between the mechanism regarding prevention, investigation or trial in connection with the scheduled offence governed by the provisions of the 1973 Code. In the scheme of 2002 Act upon identification of existence of property being proceeds of crime, the Authority under this Act is expected to inquire into relevant aspects in relation to such property and take measures as may be necessary and specified in the 2002 Act including to attach the property for being dealt with as per the provisions of the 2002 Act. We have elaborately adverted to the procedure to be followed by the authorities for such attachment of the property being proceeds of crime and the follow-up steps of confiscation upon confirmation of the provisional attachment order by the Adjudicating Authority. For facilitating the Adjudicating Authority to confirm the provisional attachment order and direct confiscation, the authorities under the 2002 Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the jurisdictional Magistrate within twenty- four hours and also filing of the complaint before the Special Court within the statutory period prescribed in the 1973 Code for filing of police report, if not released on bail before expiry thereof. 457. Suffice it to observe that being a special legislation providing for special mechanism regarding inquiry/investigation of offence of money-laundering, analogy cannot be drawn from the provisions of 1973 Code, in regard to registration of offence of money-laundering and more so being a complaint procedure prescribed under the 2002 Act. Further, the authorities referred to in Section 48 of the 2002 Act alone are competent to file such complaint. It is a different matter that the materials/evidence collected by the same authorities for the purpose of civil action of attachment of proceeds of crime and confiscation thereof may be used to prosecute the person involved in the process or activity connected with the proceeds of crime for offence of money- laundering. Considering the mechanism of inquiry/investigation for proceeding against the property (being proceeds of crime) under this Act by way of civil action (attachment and confiscat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction under Section 482 of the Code of Criminal Procedure would not arise." Similar view was taken by a Division Bench of the Madras High Court in the case of N. Dhanraj Kochar and others vs. The Director, Directorate of Enforcement (CRL. O.P. No.SR 46376/2021, wherein it was held that registration of ECIR being an administrative act for initiation of investigation under the PML Act, which is a special statute, cannot be quashed in exercise of the power under Section 482 of Cr.P.C. because registration of the ECIR is not an act undertaken under the Code. Significantly, the aforequoted observation of the Supreme Court in Sujit Kumar Rana (supra) was also referred to therein. On such reasoning, it was held that the registration of an ECIR by the officers of the E.D. cannot be the subject matter of judicial review under Section 482 of Cr.P.C. 10. In so far as the case laws cited at the bar, particularly by learned Senior Counsel appearing for the petitioner, this Court finds that in the case of Sukesh Gupta (supra), the Telengana High Court held on the facts of the case before it that since there is no evidence of criminal activity nor any property being derived as a conseque ..... 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