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TMI Blog2024 (9) TMI 933X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the Enforcement Directorate has registered an ECIR/KCZO/11/23 in the above matter and the same is being enquired into as well. Thus we see no reason to direct the consideration of Ext. P3. The prayer in Ext. P5 is that suitable action be taken by the State Government under Section 6 of the NIA Act 2008. This is misconceived. A reading of Section 6 of the NIA Act, 2008 shows that the process starts with the registration of an FIR under Section 154 Cr.P.C in respect of an offence set out in the Schedule to the NIA Act, 2008. A reading of Ext. P2 final report indicates that even in the final report there is no indication that any of the offences in the Schedule to the NIA Act, 2008 has been committed. The Writ Petition is liable to be dismissed and is dismissed. - HONOURABLE MR. JUSTICE GOPINATH P. and HONOURABLE MR. JUSTICE SYAM KUMAR V.M. For the Petitioner: By Advs. Manu Ramachandran, M. Kiranlal, T.S. Sarath, R. Rajesh (Varkala), Sameer M Nair, Sailakshmi Menon, Jothisha K.A., Shifana M. For the Respondents: By Adv. Krishna T C, SCGC, Jaishankar V. Nair, SC, Ed. JUDGMENT SYAM KUMAR V.M. J. The prayers sought in this Writ Petition, which is filed as a public interest litig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in that several persons have been questioned and their statements recorded. That effective steps are being presently undertaken by the Enforcement Directorate to ascertain the proceeds of crime including the money trail and that meticulous investigation is required in cases of such nature to find out the money trail, the proceeds of the crime and the persons involved in the money laundering case, are also pointed out by respondents 2 and 3 in their statement. The Enforcement Directorate has through the said statement sought dismissal of the Writ Petition at the very threshold on the ground of maintainability and lack of locus standi in the petitioner . 6. Respondents 1 and 5 have in their statement contended that the Writ Petition is not maintainable and that no public interest is involved in the matter. It is alleged by them therein that the Writ Petition has been filed with political interest and ulterior motives by the petitioner who is admittedly the State President of a political party. It is also averred therein that Ext. P2 Final Report clearly reveals that the State Police has completed the investigation and has filed the Final Report before the jurisdictional Magistrate wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... based on the complaints received from various persons, a file has been opened by the Enforcement Directorate and they are in receipt of the charge sheet in Crime No. 146 of 2021 of Kodakara Police Station and the Enforcement Directorate is examining the details and appropriate action under the 2002 Act will be taken as envisaged in law. This Court had also in the said judgment recorded the statement that the State Police is also conducting further investigation in Crime No. 146 of 2021. Based on the above said judgment in W.P.(C) No.11797 of 2021, counsel for the petitioner submits that nothing much has further transpired in the matter after the said judgment and that there is a stalemate in proceeding further, which it alleged is deliberate, purposeful and a result of undue political interference. 10. This argument of the petitioner is countered by the learned counsel appearing for respondents 2 and 3 relying on the judgment of the Hon'ble Supreme Court in State of Jharkhand v. Shiv Shankar Sharma and others (2022 SCC Online SC 1541), wherein it has been held that for entertaining a public interest litigation, the court needs to be satisfied credentials of the person approach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thus be granted without the necessary parties in the respondent array. It is also relevant to note that Exts.P3 and P5 representations are dated 24.04.2024 and 28.04.2024 respectively. The Writ Petition filed based on the said exhibits is dated 29.04.2024. Thus the Writ Petition has been filed within less than a week of the date in Exts. P3 and P5 representations. The said facts read in conjunction, fortifies the contention of respondents 1 and 5 that the Writ Petition has been filed with political objectives in mind and for instrumentalising the Court as a platform for furthering partisan political interest. 12. With respect to the contention put forth by the petitioner based on Dr. P. Nalla Thampy Thera v. Union of India and others (supra), the mandate laid down therein that public interest litigation necessitates appreciation of doctrine of locus standi on a case to case basis is not satisfactorily met with or satisfied by the petitioner in the facts and circumstances of the case at hand. We note that the petitioner has not sought to enforce any fundamental right of the general public nor does he complain that any of his fundamental rights for being violated. As revealed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value of any such property or where such property is taken or held outside the country, then the property equivalent in value held within the country or abroad . The Explanation to Section 2 (1) (u) of the 2002 Act states thus For the removal of doubts, it is hereby clarified that proceeds of crime include property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence . Section 2 (1) (v) of the 2002 Act defines property as any property or assets of every description, whether corporeal or incorporeal, movable or immovable, tangible or intangible and includes deeds and instruments evidencing title to, or interest in, such property or assets, wherever located . The Explanation to Section 2 (1) (v) of the 2002 Act reads thus : For the removal of doubts, it is hereby clarified that the term property includes property of any kind used in the commission of an offence under this Act or any of the scheduled offences . Section 3 of the 2002 Act sets out the ingredients of the offence of money laundering and the provision reads thus:- Whosoev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of proceeds of crime involved in money-laundering. For accomplishing that objective, the authorities appointed under Chapter VIII have been authorised to make inquiry into all matters by way of survey, searches and seizures of records and property. These provisions in no way invest power in the Authorities referred to in Chapter VIII of the 2002 Act to maintain law and order or for that matter, purely investigating into a criminal offence. The inquiry preceding filing of the complaint by the authorities under the 2002 Act, may have the semblance of an investigation conducted by them. However, it is essentially an inquiry to collect evidence to facilitate the Adjudicating Authority to decide on the confirmation of provisional attachment order, including to pass order of confiscation, as a result of which, the proceeds of crime would vest in the Central Government in terms of section 9 of the 2002 Act. In other words, the role of the Authorities appointed under Chapter VIII of the 2002 Act is such that they are tasked with dual role of conducting inquiry and collect evidence to facilitate adjudication proceedings before the Adjudicating Authority in exercise of powers conferred u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the stated scheduled offence. This interpretation alone can be countenanced on the basis of the provisions of the 2002 Act, in particular Section 2 (1) (u) read with Section 3. Taking any other view would be rewriting of these provisions and disregarding the express language of definition clause proceeds of crime , as it obtains as of now. (underline supplied) 16. In paragraphs 269 and 270, this Court held thus: 269. From the bare language of Section 3 of the 2002 Act, it is amply clear that the offence of money-laundering is an independent offence regarding the process or activity connected with the proceeds of crime which had been derived or obtained as a result of criminal activity relating to or in relation to a scheduled offence. The process or activity can be in any form be it one of concealment, possession, acquisition, use of proceeds of crime as much as projecting it as untainted property or claiming it to be so. Thus, involvement in any one of such process or activity connected with the proceeds of crime would constitute offence of money-laundering. This offence otherwise has nothing to do with the criminal activity relating to a scheduled offence except the proceeds of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Paragraph 1 of the Schedule to the PMLA. An accused may commit a crime of extortion covered by Sections 384 to 389 of IPC and extort money. Subsequently, a person unconnected with the offence of extortion may assist the said accused in the concealment of the proceeds of extortion. In such a case, the person who assists the accused in the scheduled offence for concealing the proceeds of the crime of extortion can be guilty of the offence of money laundering. Therefore, it is not necessary that a person against whom the offence under Section 3 of the PMLA is alleged must have been shown as the accused in the scheduled offence. What is held in paragraph 270 of the decision of this Court in the case of Vijay Madanlal Choudhary supports the above conclusion. The conditions precedent for attracting the offence under Section 3 of the PMLA are that there must be a scheduled offence and that there must be proceeds of crime in relation to the scheduled offence as defined in clause (u) of sub-section (1) of Section 3 of the PMLA. 19. From the above, it is clear that the Enforcement Directorate is not an investigating agency stricto sensu. The command and mandate of the Enforcement Directora ..... X X X X Extracts X X X X X X X X Extracts X X X X
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