Case BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal, Prevention of Money Laundering Act (New Delhi): A Coram of Manmohan Singh (Chairman), J. and G.C. Mishra (Member) allowed an appeal under Section 26 of the Prevention of Money Laundering Act, 2002 against an order passed by the Adjudicating Authority for attaching property.

In the instant case the CBI registered a criminal case under Section 120-B of Penal Code, 1860 read with Sections 7, 12, 13(2) and 13(1)(d) of Prevention of Corruption Act, 1988 against one Joint Director of Enforcement Directorate (ED) wherein it was alleged that he assisted the appellant (herein), indulging in corrupt practices in an investigation. It was also alleged that they had taken a huge amount of bribes as quid-pro-quo for acts of omission and commission during the said investigation. As a result, the appellant was arrested by CBI and a charge sheet was filed against him. On the basis of the registration of the case by CBI, a Prevention of Money Laundering Act, 2002 (PMLA) case was also recorded at New Delhi. The ED provisionally attached the immovable property of the appellant which was confirmed by the Adjudicating Authority.

The respondent’s counsel, Shilpi Satyapriya Satyam, contended that the aforesaid property was attached as a “value thereof” in accordance with provision made under Section 2(1)(u) read with Section 2(1)(v) of the PMLA. The counsel for the appellant, R.K. Handoo, drew the attention of the Tribunal to the provision in Section 8(3)(a) of PMLA, 2002 as amended by Act 13 of 2018 which reads as, “a) continue during [investigation for a period not exceeding ninety days or] the pendency of the proceedings relating to any [offence under this Act before a court or under the corresponding law of any other country, before the competent court of criminal jurisdiction outside India, as the case may be. On the basis of this the counsel contended that the confirmation order of attachment passed by the Adjudicating Authority did not survive. Also, no prosecution complaint was filed against the appeal, and hence the appeal be allowed.

The Tribunal found, “It is strange to note here that an immovable property of a person has been made part of a prosecution complaint for confiscation without making that person as a party and affording that person an opportunity to defend his case.” It was further noted, “Section 8(3)(a) of PMLA has been amended by the Act 13 of 2018, wherein a limitation period has been provided for continuation of attachment or retention of property or record post confirmation of attachment/retention and it is the intention of the legislature not to allow the Investigating Authority to get the property attached or retained the record/documents/items indefinitely in the name of investigation.”

Thus, the appeal was allowed. The Tribunal directed the appellant to move to the concerned Special Court for an appropriate remedy, wherein the Prosecution Complaint was pending and his property was made part and parcel of that complaint.[Sanjay Kumar v. Deputy Director Directorate of Enforcement, New Delhi, 2019 SCC OnLine ATPMLA 9, decided on 12-04-2019]

Supreme Court

Supreme Court: Criminalisation of politics was the high point of the discussion in the instant case as the Court sat to decide the constituents of ‘undue influence’ in the context of Section 260 of Tamil Nadu Panchayats Act, 1994 which has adopted the similar expression as has been used under Section 123 (2) of the Representation of People’s Act, 1951. The Court observed that revelation of pending criminal cases is a necessary obligation upon the candidates while filing the nomination and concealment of the same hinders the voter’s right to make an informed choice as it becomes a direct or indirect interference or attempt to interfere with the free exercise of the right to vote by the electorate, on the part of the candidate. It was further observed that since in the present case the candidate had the knowledge of the pending case upon which cognizance has been taken and he had chosen not to disclose the fact, this therefore would amount to ‘undue influence’ and would be a corrupt practice therefore the Election Tribunal is to declare the election null and void under Section 100(1)(b) of Representation of People’s Act, 1951.

In the instant case the validity of the appellant’s election to the post of President of Thekampatti Panchayat, Mettupalayam Taluk, Coimbatore district, Tamil Nadu was challenged due to non- disclosure of full particulars of criminal case by the appellant while filing the nomination. The Tamil Nadu State Election Commission makes it mandatory to every candidate desiring to contest an election to a local body to disclose that whether the candidate has any pending criminal case for any offence punishable with imprisonment for two years or more and in which charges have been framed or cognizance taken by any Court. The Coimbatore Election Tribunal declared the election void on grounds of the non- disclosure which was affirmed by the Madras High Court. V. Mohana and R. A. Padmanabhan represented the appellant and respondent respectively along with noted counsel Harish Salve who was the Amicus Curiae.

The Court raised serious concerns over the mushroom growth in criminalisation of politics and referred various decisions of the past where it was reiterated that a citizen’s right to vote is a medium of expression and the voter has a right to know about the background especially criminal background of any candidate that are in the fray to be elected for it leads to the path of good governance. The Court further observed that transparency is the most cherished feature of democracy and failure to disclose the criminal antecedents by a candidate amounts to corrupt practice eventually destroying the sanctity of constitutional democracy. It was also observed that the basic concept of ‘undue influence’ relating to an election is voluntary interference or attempt to interfere with the free exercise of electoral right; the voluntary act also encompasses attempts to interfere with the free exercise of the electoral right.    Krishnamoorthy v. Sivakumar, 2015 SCC OnLine SC 102, decided on 05.02.2015