Excelsior Correspondent
SRINAGAR, Mar 17: The High Court today referred the plea of Member Parliament and National Conference president Dr Farooq Abdullah challenging the attachment of his properties by the Enforce Department in connection with alleged irregularities in Jammu and Kashmir Cricket Association (JKCA) to the Division Bench of the court.
Justice D S Thakur while referring the matter to Division Bench of the HC observed that the genesis of the proceedings of petitioner Abdullah and one Ahsan Mirza against whom the ED had issued notice and that came to be challenged before this court and the same is pending before the Division Bench, are common as such required to be considered together.
“Having gone through the writ petition as also the judgment of the coordinate bench in Ahsan Mirza’s case, it can be seen that some of the issues raised by the petitioner-Abdullah in the present petition were also issue, which were raised and decided by the Coordinate Bench, which now, form the subject matter of consideration by the Division Bench of this court”, Justice Thakur recorded while referring the case to the DB.
Court in its opinion expressed that the matter be considered by a Division Bench of this court and the Senior Counsel Sidharth Luthra with Advocate Areeb Kawoosa for petitioner and Senior Counsel Tushar Mehta (Solicitor General of India) expressed no objection on referral of the case.
Court directed the Registrar Judicial to list the matter before the appropriate bench after seeking due permission from the Chief Justice in this regard. Abdullah has challenged the action of the ED under the PML Act on the issue of jurisdiction and the applicability of the said Act to the erstwhile J&K State on the grounds of illegality and procedural irregularities.
The trial of the case pertaining to issuance of the ED notice to Dr Abdullah is pending before the designated court and amongst the others Farooq Abdullah as also Ahsan Mirza (the then treasurer of JKCA) have been reflected as accused in the charge sheet filed by CBI.
Abdullah in his plea has challenged the action of ED attaching his properties, on the ground that Prevention of Money Laundering Act (PMLA) under which his properties have been attached evidently deals with the attachment and confiscation of properties and therefore falls within the subject relating to the transfer and acquisition of property as well as the subject relating to Civil Procedure.
Abdullah stated that in absence of the scheduled offence the ED had no authority to attach his ancestral properties under the PMLA. “It is settled law that the existence of a scheduled offence in ‘sine quo non’ or an essential prerequisite for the triggering of proceedings under the PMLA”, he stated.
He added that the proceedings initiated by the ED qua the petitioner on the basis that Section 120-B is the relevant scheduled offence for petitioner are without jurisdiction and violate the petitioner’s right under Article 21.
It is further argued that the ED’s failure to adhere to the procedural safeguards under Section 5 of the PMLA, while provisionally attaching the properties and restricting the petitioner’s liberty, has violated his fundamental right under Article 21 of the Constitution.
“The ED failed to disclose its reason that ‘proceeds of crime’ amounting to Rs 15 crores are available with the petitioner and has replicated allegations in the CBI charge-sheet and termed it as ‘reason to believe’ and has failed to appreciate that the proceedings under the PMLA are independent from the scheduled offence, which has been made evident in the explanations to section 2 and section 44 PMLA”, read the plea.
Abdullah in his plea before the High Court refused that he was involved or beneficiary of the transactions reproduced by the ED and added that there is no money trial to show that any of these ‘proceeds of crime’ amounting to over Rs 45 crores were ever transferred to him and despite the absence of material the ED arbitrarily concluded that Rs 15 crores are proceeds of crime available with the petitioner.
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