{"id":53894,"date":"2009-12-02T00:00:00","date_gmt":"2009-12-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sanjay-kumar-choudhary-vs-govt-of-india-anr-on-2-december-2009"},"modified":"2016-02-08T19:05:50","modified_gmt":"2016-02-08T13:35:50","slug":"sanjay-kumar-choudhary-vs-govt-of-india-anr-on-2-december-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sanjay-kumar-choudhary-vs-govt-of-india-anr-on-2-december-2009","title":{"rendered":"Sanjay Kumar Choudhary vs Govt. Of India & Anr. on 2 December, 2009"},"content":{"rendered":"
Jharkhand High Court<\/div>\n
Sanjay Kumar Choudhary vs Govt. Of India & Anr. on 2 December, 2009<\/div>\n
              In the High Court of Jharkhand at Ranchi\n\n                    W.P.(Cr.) No.419 of 2009\n\n              Sanjay Kumar Choudhary .......................................Petitioner\n\n                    VERSUS\n\n              Government of India through the\n              Director, Directorate f Enforcement and another... Respondents\n\n              CORAM: HON'BLE MR. JUSTICE R.R.PRASAD\n\n              For the Petitioner: M\/s.Indrajit Sinha and Kumar Vimal\n              For the Respondents: M\/s. A.K.Das and A. Arohi Bhalla\n\nReserved on 19.11.09.                                 Pronounced on 2.12.09.\n\n4. 2.12.09<\/pre>\n
.         A complaint bearing complaint case no.9 of 2009 was lodged<\/p>\n
              in the court of Special Judge (Vigilance) -cum- Additional Judicial<\/p>\n
              Commissioner, Ranchi by the complainant Rajiv Sharma alleging<\/p>\n
              therein that the then Chief Minister Shri Madhu Koda, on being<\/p>\n
              elected from one of the Assembly Constituencies, held office of the<\/p>\n
              Minister, Mines and Co-operative, from February, 2005 to<\/p>\n
              September, 2006 and then the office of the Chief Minister from<\/p>\n
              September, 2006 to August, 2008. During the aforesaid period he<\/p>\n
              amassed huge properties moveable as well as immovable by<\/p>\n
              indulging in corrupt practices for embezzlement of the public fund<\/p>\n
              in collusion with Vinod Sinha and Sanjay Kumar Choudhary<\/p>\n
              (petitioner). While holding the said offices, he entered into an<\/p>\n
              agreement (M.O.U) with 44 big Industrial Houses to set up the<\/p>\n
              industries in the State of Jharkhand and thereby he received bribe<\/p>\n
              through Vinod Sinha and this petitioner. Having acquired ill-gotten<\/p>\n
              money in crores in connivance with Vinod Sinha and this petitioner,<\/p>\n
              they purchased\/invested money in number of Companies not only<\/p>\n
              in India but also at abroad including Dubai where crores of rupees<\/p>\n
              were transferred through Hawala.     That apart, money was also<\/p>\n
              invested in crores in purchasing land and also in purchasing Mines<\/p>\n
              in a foreign country, namely, Liberia. The complainant has also
\n                             2<\/span><\/p>\n
alleged that other Ministers named in the complaint petition also<\/p>\n
amassed huge properties by illegal means.\n<\/p>\n
       Learned court below on receiving the said complaint<\/p>\n
forwarded it to the Officer-in-Charge, Vigilance Police Station,<\/p>\n
Ranchi under section 156(3) of the Code of Criminal Procedure for<\/p>\n
its institution and investigation. Accordingly, it was registered as<\/p>\n
Vigilance P.S. case no. 9 of 2009 under Sections 420, 423, 424,465<\/p>\n
read with Section 120B of the Indian Penal Code and also under<\/p>\n
Sections 7, 10,11 and 13 of the Prevention of Corruption Act,<\/p>\n
1988.Subsequently, on the basis of the allegation made in the<\/p>\n
vigilance case, Enforcement Directorate lodged Enforcement Case<\/p>\n
Information Report ( ECIR) against Shri Madhu Koda and other<\/p>\n
Ministers including this petitioner and other persons alleging therein<\/p>\n
that there has been reasons to believe from the facts disclosed in<\/p>\n
the vigilance case that the accused persons under criminal<\/p>\n
conspiracy acquired huge assets both in India and outside India by<\/p>\n
indulging themselves in criminal act under the Indian Penal Code<\/p>\n
and also under the Prevention of Corruption Act and as such, prima<\/p>\n
facie, materials or there to form an opinion that the offence of<\/p>\n
money laundering has been committed which is punishable under<\/p>\n
Section 4 of the prevention of Money Laundering Act, 2002<\/p>\n
(hereinafter referred to as ‘the Act’).\n<\/p>\n
       Being aggrieved with the lodgment of the said Enforcement<\/p>\n
Case Information Report (ECIR), the instant application has been<\/p>\n
filed on behalf of the petitioner praying therein to quash the entire<\/p>\n
criminal proceeding of Enforcement Case Information Report<\/p>\n
No.ECIR\/0\/PAT\/09\/AD.\n<\/p>\n
       The said prosecution has been sought to be quashed on the<\/p>\n
ground that unless and until it is established that accused persons<\/p>\n
acquired properties by committing an offence under Sections 420,
\n                            3<\/span><\/p>\n
423, 424 read with Section 120B of the Indian Penal Code, one in<\/p>\n
terms of Section 3 of Act can not be said to have acquired property<\/p>\n
with the proceeds of crime and projected it as untainted property.<\/p>\n
Thus, it was submitted that the instant prosecution by the<\/p>\n
Enforcement Directorate under Section 4 of the Act is pre-matured<\/p>\n
and is liable to be quashed.\n<\/p>\n
      Learned counsel appearing for the petitioner in this respect<\/p>\n
submits that one can be held liable for an offence under Section 4<\/p>\n
of the Act, if he is involved in any process or activities with the<\/p>\n
proceeds of Schedule offence and not any other offence but<\/p>\n
surprisingly, the petitioner and others are being prosecuted on the<\/p>\n
premise that the properties acquired by the money are proceeds of<\/p>\n
the crime committed under Sections 420, 423, 424 of the Indian<\/p>\n
Penal Code but those offences were declared to be the Scheduled<\/p>\n
offences under the prevention of Money Laundering (Amendment)<\/p>\n
Act, 2009    which came into force with effect from 6.3.2009<\/p>\n
whereas Shri Madhu Koda did hold post of Chief Ministership from<\/p>\n
September, 2006 to August, 2008 and, therefore, the petitioner or<\/p>\n
any other accused cannot be said to have acquired properties in<\/p>\n
connivance with other accused with the proceeds of the crime and<\/p>\n
as such, the prosecution under Section 4 of the Act is quite bad.<\/p>\n
      Learned counsel further submits that before proceeding with<\/p>\n
the prosecution under Section 4 of the Act, the prosecuting agency<\/p>\n
needs to establish that Scheduled crime\/crimes have been<\/p>\n
committed and out of proceeds of such crime properties have been<\/p>\n
acquired which have been projected as untainted properties which<\/p>\n
stand gets substantiated from the provision of the Act relating to<\/p>\n
attachment as proviso to Section 5       does stipulate that unless<\/p>\n
report in terms of Section 173 of the Code of Criminal Procedure in<\/p>\n
relation to Scheduled offence is submitted, provision of attachment
\n                                 4<\/span><\/p>\n
needs not be resorted to. Thus, when such restriction has been put<\/p>\n
under the statute in the matter of attachment of the property<\/p>\n
acquired by the tainted money, one can easily comprehend that the<\/p>\n
Legislature would not have intended to get the prosecution<\/p>\n
launched under the Act unless it is established first that any<\/p>\n
Scheduled offence has been committed. But, surprisingly, instant<\/p>\n
prosecution has been launched only on the vague allegations that<\/p>\n
too nastly on Newspaper reportings about the indulgence of the<\/p>\n
accused persons in the schedule offence and hence, the instant<\/p>\n
proceeding is nothing but an abuse of the process of law and<\/p>\n
hence, it be quashed.\n<\/p>\n
       As     against   this,   learned   counsel   appearing   for   the<\/p>\n
respondents submits that as per the allegation made in the ECIR,<\/p>\n
the petitioner and other accused persons in collusion\/connivance<\/p>\n
with the public servant acquired huge properties not only in India<\/p>\n
but even at abroad, description of which has been given in the said<\/p>\n
report, by the proceeds of crime committed under the Indian Penal<\/p>\n
Code and also under the Prevention of Corruption Act. Taking that<\/p>\n
fact into consideration and also the assets of the public servants<\/p>\n
including the then Chief Minister disclosed at the time of filing<\/p>\n
nomination on the eve of election, there was every reason on the<\/p>\n
part of the informant to believe that offence of money laundering<\/p>\n
has been committed and as such, the said report never warrants to<\/p>\n
be interfered with by this Court.\n<\/p>\n
       Before adverting to the submission advanced on behalf of<\/p>\n
the parties, one needs to take notice of the provision as contained<\/p>\n
in Section 3 of the Act which speaks about the offence of money<\/p>\n
laundering:\n<\/p>\n
                ” Office of money-laundering – Whosoever directly or
\n                indirectly attempts to indulge or knowingly assists or
\n                knowingly is a party or is actually involved in any
\n                            5<\/span><\/p>\n
             process or activity connected with the proceeds of
\n             crime and projecting it as untainted property shall be
\n             guilty of offence of money-laundering.<\/p><\/blockquote>\n
      Section 4 of the Act which prescribes the punishment of<\/p>\n
money laundering reads as under:\n<\/p>\n
             “Punishment for money-laundering- Whoever commits
\n             the offence of money-laundering shall be punishable
\n             with rigorous imprisonment for a term which shall not
\n             be less than three years but which may extend to
\n             seven years and shall also be liable to fine which may
\n             extend to five lakh rupees:\n<\/p><\/blockquote>\n
               Provided that where the proceeds of crime involved
\n             in money-laundering relates to any offence specified
\n             under paragraph 2 of Part A of the Schedule, the
\n             provisions of this section shall have effect as it for the
\n             words “which may extend to seven years”, the words
\n             “which may extend to ten years” had been
\n             substituted.”<\/p><\/blockquote>\n
      Amplitude of the provision as contained in Section 3 appears<\/p>\n
to be quite wide as anyone who gets himself involved directly or<\/p>\n
indirectly or assists in the activity connected with the proceeds of<\/p>\n
crime and projecting it as untainted property shall be guilty for the<\/p>\n
offence of money-laundering.\n<\/p>\n
      The allegations made in the complaint upon which first<\/p>\n
information report was lodged by the vigilance and then ECIR was<\/p>\n
drawn do indicate about the involvement of this petitioner in the<\/p>\n
activities whether it relates to purchase of the companies or mines<\/p>\n
or investment of      monies in companies\/mines at abroad or<\/p>\n
purchase of the land by the proceeds of the crimes which were<\/p>\n
committed under the Indian Penal Code and also under the<\/p>\n
Prevention of Corruption Act with the aid and abetment of the<\/p>\n
petitioner. However, submission advanced on behalf of the<\/p>\n
petitioner that one cannot be said to have committed offence of<\/p>\n
money-laundering unless it is established that, that person has<\/p>\n
committed crime proceeds of which is being projected as untainted<\/p>\n
property is only to be noticed to be rejected.      The provision as<\/p>\n
contained in Section 3 never does suggest that         the offence of
\n                            6<\/span><\/p>\n
money-laundering can be launched only when one is found guilty of<\/p>\n
a crime, proceeds of which has been projected as untainted<\/p>\n
property, rather the offence of money-laundering as defined under<\/p>\n
Section 3 unambiguously prescribes that anyone, who directly or<\/p>\n
indirectly meddles with the property connected with the proceeds<\/p>\n
of the crime projecting it as untainted property, is liable to be<\/p>\n
punished for the offence of money-laundering. However, learned<\/p>\n
counsel by taking cue of the first proviso of Section 5 of the Act<\/p>\n
tried to impress upon that proceeding relating to attachment of the<\/p>\n
property acquired through tainted money can only be initiated<\/p>\n
under the Act after submission of the report under Section 173 of<\/p>\n
the Code of Criminal Procedure. No doubt such provision is there<\/p>\n
but that seems to have been made purposely as any proceeding<\/p>\n
relating to attachment of the property would be affecting the right<\/p>\n
of the parties. Moreover, the second proviso of Section 5 does<\/p>\n
prescribe that authority can resort to the provision of attachment<\/p>\n
before submission of the police report under Section 173 of the<\/p>\n
Code of Criminal Procedure, if there has been reason to believe<\/p>\n
that if the property involved in money-laundering is not attached, it<\/p>\n
would likely to frustrate any proceeding under this Act. Thus, the<\/p>\n
petitioner cannot draw any strength from the provision contained in<\/p>\n
the first proviso of Section 5 that prosecution for offence of money-<\/p>\n
laundering cannot be launched unless it is established that the<\/p>\n
person has committed crime proceeds of which is being projected<\/p>\n
as untainted property.\n<\/p>\n
      In the instant case, the officers of the Enforcement<\/p>\n
Directorate having taken notice of assets of the then Chief Minister<\/p>\n
possessing at the time of filing nomination and the ill-gotten money<\/p>\n
acquired during his tenure as Minister and the Chief Minister which<\/p>\n
was allegedly invested through this petitioner and other accused
\n                             7<\/span><\/p>\n
persons in acquiring number of companies in India and even at<\/p>\n
abroad and also purchase of land of the value more than crores,<\/p>\n
there was every reason to believe on the part of the officers of the<\/p>\n
Enforcement Directorate that offence of money-laundering has<\/p>\n
been committed.\n<\/p>\n
          The other submission is to the effect that the then Chief<\/p>\n
Minister has been alleged to have acquired huge properties by<\/p>\n
committing offence under Sections 420, 423, 424 read with Section<\/p>\n
120B of the Indian Penal Code and proceeds thereof is a subject<\/p>\n
matter of the offence of money-laundering but the aforesaid<\/p>\n
offences has been incorporated      in Part B of paragraph      1 with<\/p>\n
effect from 6.3.2009 whereas tenure of Shri Madhu Koda as<\/p>\n
Minister was from February, 2005 to September, 2006 and as Chief<\/p>\n
Minister from September, 2006 to August, 2008 and therefore, the<\/p>\n
petitioner even in the face of allegation that he associated himself<\/p>\n
with the activities of the proceeds of the crime cannot be said to<\/p>\n
have committed offence under Section 3 of the Act as the money<\/p>\n
from which properties have been alleged to have been acquired<\/p>\n
can not be said to be proceed of crime. Such submission is devoid<\/p>\n
of any merit on the face of the provision as contained in Section 3<\/p>\n
itself.    I have already noticed that one can be said to have<\/p>\n
committed offence of money- laundering if he directly or indirectly<\/p>\n
associates himself with the activities connected with the proceeds<\/p>\n
of the crime projecting it as untainted property. Proceeds of crime<\/p>\n
as defined under section 2(u) means any property derived or<\/p>\n
obtained, directly or indirectly, by any person as a result of criminal<\/p>\n
activity relating to a scheduled offence or the value of any such<\/p>\n
property. It be noted that during the period when the then Chief<\/p>\n
Minister is said to have amassed the properties, Sections 7 and 10<\/p>\n
of the Prevention of Corruption Act were very much scheduled
\n                                   8<\/span><\/p>\n
      offences and therefore, the properties found in India or abroad has<\/p>\n
      rightly been taken by the prosecuting agency to be proceeds of<\/p>\n
      crime. Admittedly, the petitioner is not a public servant but in view<\/p>\n
      of the allegation disclosing therein the act of abetment of this<\/p>\n
      petitioner towards commission of the said offences, he can not<\/p>\n
      escape from the liability of the offence under Section 7 of the<\/p>\n
      Prevention Act.\n<\/p>\n
             Thus, in the facts and circumstances as stated above, I do<\/p>\n
      not find any merit in this application. Hence, it is dismissed.<\/p>\n
                                                        ( R. R. Prasad, J.)<\/p>\n
ND\/\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Jharkhand High Court Sanjay Kumar Choudhary vs Govt. Of India & Anr. on 2 December, 2009 In the High Court of Jharkhand at Ranchi W.P.(Cr.) No.419 of 2009 Sanjay Kumar Choudhary …………………………………Petitioner VERSUS Government of India through the Director, Directorate f Enforcement and another… Respondents CORAM: HON’BLE MR. JUSTICE R.R.PRASAD For the Petitioner: M\/s.Indrajit Sinha […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,18],"tags":[],"class_list":["post-53894","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jharkhand-high-court"],"yoast_head":"\nSanjay Kumar Choudhary vs Govt. 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