Fayaz Bukhari
SRINAGAR, Aug 14: In a significant judgement, the High Court today quashed charge sheets filed by the Enforcement Directorate (ED) against former Chief Minister Dr Farooq Abdullah and others in alleged money laundering linked to irregularities in the Jammu and Kashmir Cricket Association (JKCA).
Justice Sanjeev Kumar said no predicate offence was made against petitioner Ihsan Mirza who was then treasurer of JKCA and hence the charge sheet and supplementary charge sheet filed by the ED are quashed.
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The ED had Abdullah, Mirza, Mir Manzoor Gazanffer (another ex-treasurer of the JKCA) and some others as accused in the charge sheet that have been quashed now.
Advocate Shariq J Reyaz, representing Mirza and Gazanffer, had moved the High Court saying that the ED had no jurisdiction over the case and the charge sheets filed against the duo be quashed.
“We were representing Mirza and Gazanffer and the court accepted our plea that no predicate offence was made out and that the ED had no jurisdiction over the case, so entire prosecution has been quashed including against Abdullah,” Advocate Reyaz told Excelsior.
Mirza through a petition sought quashing of ED complaint and order dated 18th March, 2020 passed by the Designated Special Court against him. Click here to watch video
“This petition is, accordingly, allowed. The complaint, the charge-sheet and the charges framed by the designated Special Court (Principal Sessions Court, Srinagar) vide order dated 18.03.2020 are quashed”, Justice Kumar concluded.
The court, however, notwithstanding quashing of the charges, left it open to the ED to register ECIR afresh and launch prosecution against Mirza under Section 3 of the PMLA if ultimately the Court of Chief Judicial Magistrate, Srinagar frames charges for offence/offences, which are specifically mentioned in the schedule of PMLA.
Advocate Shariq Riyaz submitted that regarding allegation of misappropriation of JKCA funds, the CBI has already registered an FIR for commission of offences under Sections 120-B. 406 and 409 RPC. Both the aforesaid offences i.e. S.406 and S.409 RPC, it is contended, are not the scheduled offences as defined under Section 2(y) of PMLA.
The stand of the respondent, as was articulated by S.V. Raju, Additional Solicitor General of India, is that though the CBI charge-sheet filed before the competent Court of law is in respect of offences under Section 120-B, 406 and 409 RPC, yet a perusal of the CBI charge-sheet would reveal the ingredients of commission of scheduled offences punishable under Section 411 and 424 RPC, therefore, there is no escape for the Mirza from facing prosecution under PMLA when he has been found to have indulged in activities connected with the proceeds of crime, an offence under Section 3 of PMLA and punishable under Section 4 of PMLA.
Justice Kumar after having heard the counsel for the parties and perused the material on record said the facts, as are projected before this Court by both the sides, are not in dispute. On the allegations of misappropriation of funds by JKCA, the Police Station Ram Munshi Bagh, Srinagar (J&K) had registered an FIR No.27/2012 dated 10.03.2012 under Sections 120- B, 406 and 409 of the Ranbir Penal Code.
The FIR was registered against the petitioner and one Mohd. Saleem Khan, the then office bearers of the JKCA. During the course of investigation by the police and on the intervention made by this Court, investigation in the FIR was transferred to the Central Bureau Investigation (CBI).
Upon completion of investigation, the CBI has filed a charge-sheet against six accused persons including the petitioner for commission of offences under Sections 120-B, 406 and 409 RPC, which is pending consideration before Chief Judicial Magistrate, Srinagar. It is not in dispute that Sections 406 and 409 RPC/IPC are not the scheduled offences.
“Going by the charge sheet filed by the CBI, it is evident that the offence of money laundering, as defined under Section 3 of PMLA, is not made out. For commission of offence of money laundering under Section 3 of PMLA, it is required to be demonstrated that the accused has directly or indirectly, knowingly or unknowingly involved in any process or activity connected with the proceeds of crime. Such activity could be concealment, possession, acquisition or use of the proceeds of crime and projecting it as untainted property”, read the judgment.
Court said that the authorities under PMLA cannot resort to action against any person for money laundering only on the assumption that the property recovered by them must be proceeds of crime and that a scheduled offence has been committed unless the same is registered with jurisdictional police or pending enquiry by way of complaint before the competent forum.
“In the instant case, indisputably, the jurisdictional police, the CBI has not registered any case for commission of any scheduled offence. Enquiry by way of complaint before the CJM, Srinagar is also not in respect of any scheduled offence. In the absence of there being any case registered for commission of scheduled offence or any case pending enquiry or trial in respect of scheduled offence, authorities under PMLA have no jurisdiction to register ECIR and launch prosecution for offence of money laundering under Sections 3/4 of PMLA”, the Court said.
The Enforcement Directorate, court said, if so permitted, may approach the Chief Judicial Magistrate and canvass before it that apart from the offences of Section 120-13, 406 and 409 RPC, scheduled offences like Section 411 and 424 RPC are also made out. “If the Court of Chief Judicial Magistrate frames charges against the petitioner for any of the scheduled offences, it shall be open for the Enforcement Directorate to register fresh ECIR and launch prosecution against the petitioner, if he is found to have been involved in the commission of offence of money laundering under Section 3 PMLA”.
“The Enforcement Directorate cannot be permitted to pre-empt the outcome of an exercise, which is yet to be undertaken by a competent Court of law at the stage of charge/discharge. As on date, the charge-sheet presented by the CBI is only in respect of Section 120-B, 406 and 409 RPC, which are admittedly not the scheduled offences”, Justice Kumar recorded.
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