Case BriefsForeign Courts

Pakistan Supreme Court: A Full Bench comprising of Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ. dismissed a criminal appeal against the order of the Peshawar High Court where a Nigerian national was convicted under Section 9(c) of the Control of Narcotic Substances Act, 1997.

In the instant case, the respondent (a Nigerian national) was caught by the contingent of Anti Narcotics Force along with 25 kilograms of heroin. He faced trial before the Special Court (CNS) who returned with a verdict of guilty. He was convicted under Section 9(c) of the Control of Narcotic Substances Act, 1997 and was sentenced to imprisonment for life and a fine of rupees one million or five-year simple imprisonment in case of default. He appealed to the Peshawar High Court which acquitted him from the charge primarily on the ground that, contraband allegedly recovered was destroyed in violation of procedure provided under Section 516 A of the Code of Criminal Procedure, 1898. Aggrieved thereby, the State filed the instant criminal appeal.

Mr Muhammad Tariq Khan, learned ASC for the State contended that the destruction of the contraband under magisterial supervision ruled out the possibility of any foul play and thus strict non-compliance with the suggested procedure would not vitiate respondent’s culpability which was otherwise firmly established through massive evidence.

The Court held, “We would abstain to examine the vires of arguments raised before us in absence of the respondent, a Nigerian national, reported to have left Pakistan as in his absence the exercise would be merely an academic discussion without consequential impact.” Further, it was held, “we find it inexpedient to interfere with the impugned judgment as in the event of a reversal of the impugned view, a cumbersome procedure of respondent’s extradition would be a process far from convenient.”  Thus, the appeal was dismissed.[State v. Olufemi, Criminal Appeal No. 16-P of 2013, decided on 29-04-2019]

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]

Legislation UpdatesNotifications

S.O. 1661(E)—Whereas, in exercise of the powers conferred by sub-section (1) of Section 11 of the National Investigation Act, 2008 (34 of 2008) (hereinafter referred to as the said Act), the Central Government had, vide notification number S.O. 2159(E) dated the 1st September, 2010, published in the Gazette of India, Extraordinary, Part-II, Section 3, Sub-section (ii), notified the Court of District and Sessions Judge, Shimla, as the Special Court for the purposes of sub-section (1) of Section 11 of the said Act having jurisdiction throughout the State of Himachal Pradesh for the trial of Scheduled Offences;

And whereas, Shri Virender Singh, District and Sessions Judge, Shimla, who was appointed as the Judge to preside over the said Special Court vide notification number S.O. 1575(E) dated the 16th May, 2017, published in the Gazette of India, Extraordinary, Part-II, Section 3, Sub-section (ii), has been transferred;

Now, therefore, in the exercise of the powers conferred by sub-section (3) of Section 11 of the National Investigation Act, 2008 (34 of 2008) and in supersession of the notification number S.O. 1575(E) dated the 16th May, 2017, except in respect of things done or omitted to be done before such supersession, the Central Government, on the recommendation of the Hon’ble Chief Justice, High Court of Himachal Pradesh, hereby appoints Shri Rajeev Bhardwaj, District and Sessions Judge, Shimla, as the Judge to preside over the said Special Court.


[Notification dt. 29-04-2019]

Ministry of Home Affairs

Case BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal for PMLA Act: The Coram of Ananya Ray (Member) directed to keep an appeal filed against an order directing attachment of properties bought from proceeds of money laundering, till final disposal of the matter by Special Court.

The present appeal was filed against order vide which attachment of 14 immovable properties and 2 movable properties, which were alleged as having been acquired from the proceeds of scheduled offences under Prevention of Money Laundering Act, 2002, was confirmed.

Appellant’s main plea was that he had already been tried by the Sessions Court and been acquitted by it. Hence, once there was no scheduled offence, there could not be proceeds of crime, and therefore attachment of the properties was liable to be set aside.

The Tribunal noted that Section 43(1) of the PMLA empowers the Central Government to designate one or more Courts of Session as Special Court for the trial of offence punishable under Section 4 PMLA. Further, Section 43(2) of the Act prescribes that the Special Court shall also try an offence (other than the offence of money laundering) with which the accused may have been charged under the Code of Criminal Procedure, 1973. A joint reading of these provisions indicated that the Special Court has must try the offence of money laundering as well as the scheduled offence.

It was opined that the Session Courts had not examined Section 4 of PMLA along with the schedule offence as mandated under Section 44 of PMLA. Hence, it could not be said that appellant’s acquittal had attained finality. Since the appellant’s case had already been taken cognizance of by the Special Court, therefore the instant appeal was directed to be kept in abeyance until final disposal of the case by the Special Court.[Bharat Yadav v. Deputy Director, Directorate of Enforcement, Patna, 2019 SCC OnLine ATPMLA 2, decided on 03-04-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal for SAFEMA, FEMA, PMLA, NDPS & PBPT Act: The coram of Manmohan Singh, J. (Chairman) and G.C. Mishra (Member) ordered to keep an appeal filed before this Tribunal in abeyance until the Special Court, which had already taken cognizance of the matter at hand, finally disposed of the case.

Facts of the case were that one Mr Anup Prakash Garg who was a Director in Andhra Bank from had hatched a criminal conspiracy with Sterling Biotech Ltd. (SBL) and cheated Andhra Bank to the tune of Rs 5382 crores, which was received by him as gratification for favouring SBL group in his capacity as Director of Andhra Bank. The case of the Enforcement Directorate was that the said amount was received by Mr. Garg in cash, and was layered into the appellant company set up by him with his son, wife and his daughter-in-law who were Directors in the appellant company. Aggrieved by the ED’s case in Special Court, the instant appeal was filed.

The preliminary objection taken by counsel for the respondent Mr Nitesh Rana was that ED had filed a case in the Special Court under Prevention of Money Laundering Act, 2002 and the Special Court had already taken cognizance of the same. Therefore, it was pleaded that this case be kept pending till disposal by the Special Court.

The Court noted that the entire scheme of PMLA provides that only a Special Court can adjudge on the offence of money laundering. Section 44(1)(a) of PMLA specifically states that an offence punishable under Section 4 and any scheduled offence connected to the offence under that Section shall be triable by a Special Court. Reliance in this regard was placed on Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1.

In view of the above, it was held that only the Special Court had the power to decide on the offence of money laundering.[RAG Buildtech (P) Ltd. v. Deputy Director, Directorate of Enforcement, Delhi, FPA-PMLA-2548/DLI/2018, decided on 26-03-2019]

Case BriefsHigh Courts

High Court of Jharkhand at Ranchi: The Court recently addressed a petition which had been filed for quashing a previous order given by the Chief Judicial Magistrate wherein the CJM took cognizance of offences under certain sections of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the Penal Code.

The facts of the case are that the original complaint petition was filed before the Court of the Chief Judicial Magistrate under Section 156(3) of the Criminal Procedure Code following which it was registered under as a separate complaint under Sections 376, 417 and 506 of the Penal Code and Sections 3(1)(x), 3(1)(xii) and 2(v) of the Scheduled Castes and Tribes (Prevention of Atrocities) Act. The CJM then took cognizance of the alleged offences under the aforementioned sections of the Penal Code and the Scheduled Castes and Tribes (Prevention of Atrocities) Act and kept the file for commitment which gave rise to a separate case.

The counsel for the petitioner argued that the Magistrate did not have the authority to take cognizance under the Scheduled Castes and Tribes (Prevention of Atrocities) Act, as cognizance could only be taken by the Special Court which has been constituted for the purposes of this Act. The counsel pointed out that not only was cognizance taken of the sections under the Penal Code but also all those sections under the Scheduled Castes and Tribes (Prevention of Atrocities) Act. The counsel referred to Moly v. State of Kerala, 2004 CRI. L. J. 1812 (SC) in which the Supreme Court held, “for trial of the offences under the Act that a particular Court of Session in each district is sought to be specified as a Special Court… The Act contemplates only the trial to be conducted by the Special Court”. Hence, keeping this judgment in mind, the counsel argued that the Judge was acting outside of his jurisdiction.

The counsel for the opposite party submitted that the impugned order also saw the Magistrate taking cognizance to provisions of the Penal Code. He also argued that following this, the Magistrate committed the trial to the Court of Sessions for trial and thus the trial had not been vitiated. He pointed out that legislature had provided for the constitution of a Special Court for the purpose of trial of offences under the Act in question.

The bench of B.B Mangalmurti J., held that the Court of the Chief Judicial Magistrate cannot take cognizance of offences under the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 since there stood no ambiguity in the decision of the Supreme Court wherein it necessitated the constitution of a Special Court for trial of offences committed under the Act. Hence, the Court set aside the impugned order. [Dhiraj Kumar v. State of Jharkhand, 2017 SCC OnLine Jhar 2266, order dated 23.11.2017]

Hot Off The PressNews

Supreme Court: Rejecting the plea of Naveen Jindal seeking permission to challenge the Trail Court’s order in Coal Scam, the 3-judge bench headed by Madan B. Lokur, J reiterated that High Courts cannot entertain the appeals challenging the orders of Special Courts. Such pleas can be entertained only by the Supreme Court.

Congress Leader Naveen Jindal had sought for challenging the Trail Court’s order before the Delhi High Court in the Coal Block allocation case where he was charged with corruption, criminal misconduct, cheating and criminal conspiracy in relation to the coal blocks that were allocated to the Jindal Group of companies.

Refusing to entertain his plea, the Court said that it will not revisit it’s July 25, 2014 order which had said that challenge to any interim order of the special court during pendency of trial in coal scam cases will be heard only by it.

Source: PTI