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TMI Blog2024 (9) TMI 844X X X X Extracts X X X X X X X X Extracts X X X X ..... ggage (Air) Unit obtained illegal gratification from the passengers arriving at Chennai from foreign countries for clearance of their unaccompanied baggage by charging less or no duty through private person. An FIR was filed by CBI in RC MAI 2009 A 0060, against four Superintendents of Customs, four Preventive Officers of Customs, one Senior Tax Assistant and two private persons under Sections 7, 8, 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act 1988 r/w 120(B) IPC. 4. The 5th accused was arrested on 23.11.2009 and the first accused was arrested on 24.11.2009. An amount of Rs. 7,60,000/- cash was seized by CBI from the residence of the 5th Accused on 24.11.2009. On 26.11.2009 one Mr.Haniffa approached CBI and handed over Rs. 8,00,000/- cash, stating that earlier in the 3rd week of November 2009, it was handed over to him by the 1st accused. The 2nd accused and the 4th accused were arrested by the CBI on 27.11.2009 and the 2nd accused was put under custodial interrogation on the next day i.e., on 28.11.2009. 5. Mr.Haniffa approached CBI on 28.11.2009 and handed over Rs. 12,40,000/- cash, stating that earlier it was handed over to him by the 2nd accused which was later ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olved in any process or activity connected with the Proceeds of Crime and projecting it as untainted property, shall be guilty of offence of money laundering" 11. In the present case, soon after the seizure of money by the CBI, it was deposited in the Court and after the deposit of the seized money in the Court, the petitioners were not in possession of the Proceeds of Crime and the possession and concealment etc., were inserted under Section 3 by way of an amendment in the year 2013. The said amendment cannot have retrospective application so as to initiate action under PMLA against the petitioners. 12. The learned Senior Counsel would contend that the amendment cannot have retrospective effect and therefore, in the year 2009 onwards, the petitioners were not in possession of Proceeds of Crime. Therefore, registration of ECIR No.07/2012 in the year 2012 is untenable. Relying on the pre-amended Section 3 of PMLA, the learned Senior Counsel reiterated that no offence under PMLA has been made out against the petitioners and the said ground has not been considered by the Trial Court. Thus, the Crl.R.C. is to be allowed. 13. The learned Special Public Prosecutor, Mr.P.Siddharthan, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt that the amount seized and attached is not involved in money laundering, which can be done during trial and therefore this petition is not maintainable. 16. The Hon'ble Supreme Court has categorically laid down that mere possession of tainted money will also fall within the definition of money laundering and the said provision even before it was amended included possession also as an offence within its fold and that it is not unconstitutional. Hence the contention that the mere possession of tainted money was not an offence at that time cannot be countenanced in view of the clear dictum laid down by the Hon'ble Supreme Court. Therefore, the ground raised by the Petitioner that the offence of money laundering is not made in this case is rejected." 17. Whether retrospective effect can be given to amendment made to Section 3 of PMLA, though the offence was registered in the year 2009, was considered by the Hon'ble Supreme Court of India in the case of Vijay Madanlal Chaudhary Vs. Union of India [2022 SCC Online SC 929]. and the relevant paragraph is extracted as under: "270. Needless to mention that such process or activity can be indulged in only after the property is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Explanation vide Finance (No. 2) Act, 2019, Section 3, as amended. The act of projecting or claiming proceeds of crime to be untainted property presupposes that the person is in possession of or is using the same (proceeds of crime), also an independent activity constituting offence of money-laundering. In other words, it is not open to read the different activities conjunctively because of the word "and". If that interpretation is accepted, the effectiveness of Section 3 of the 2002 Act can be easily frustrated by the simple device of one person possessing proceeds of crime and his accomplice would indulge in projecting or claiming it to be untainted property so that neither is covered under Section 3 of the 2002 Act. Thus, a person who is as longer as in possession and enjoyment of Proceeds of Crime, PMLA can certainly be invoked. It is also submitted that the subsequent amendments made to the PMLA in respect of Section 3 of PMLA has been upheld by the Hon'ble Supreme Court of India on the premise that all the said amendments are in clarificatory in nature. 19. Whether mere receipt of bribe money is an act of money laundering or not is elaborately considered by the Apex Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribe. The crucial part therefore is the requisite intent to hand over the amount as bribe and normally such intent must necessarily be antecedent or prior to the moment the amount is handed over. Thus, the requisite intent would always be at the core before the amount is handed over. Such intent having been entertained well before the amount is actually handed over, the person concerned would certainly be involved in the process or activity connected with "proceeds of crime including inter alia, the aspects of possession or acquisition thereof. By handing over money with the intent of giving bribe, such person will be assisting or will knowingly be a party to an activity connected with the proceeds of crime. Without such active participation on part of the person concerned, the money would not assume the character of being proceeds of crime. The relevant expressions from Section 3 of the PML Act are thus wide enough to cover the role played by such person. 17. On a bare perusal of the complaint made by the Enforcement Directorate, it is quite clear that the respondent was prima facie involved in the activity connected with the proceeds of crime." 21. The very same Division Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X
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