Prática de Shadowing: Criminal case very enthusiastic Argument by senior Advocate - Aprenda a falar inglês com vídeo

Objections.

Page one of that synopsis, three dates which will have relevance.

The entire events that have taken place in so far as this case is concerned,

it spans between 1992, my lord's preliminary notification, till my lord's 5-1-20-21, that date may be relevant.

My Lords 5-1-2021.

That was when my Lords Muda allorts 14 sites in favor of the petitioner.

So that date may be of some relevance because one of the aspects

which we intend pointing out is a tearing hurry in which the ECIR is registered which I will point out.

Now my Lords in that list of dates 6 may be noticed.

Serial number 6.

The date of registration of the FIR. are.

Predicate offense.

27-9-20-24.

My Lords on the previous day was the 156-3 order.

So next day the affair comes to be registered.

My Lords 7-1-10-20-24 deed of cancellation where the 14 sites have been surrendered to Muda.

From this date on the petitioner is neither in possession nor enjoying the so-called proceeds of crime.

The very same day, my lads, when the property is returned to Muda, the ECIR is registered same day,

1-10-20-24, which is on four days after the affair and the predicate offence gets registered.

Now my lords, the last part where I mentioned there the subject matter of

that investigation and the subject matter of this inquiry appears to be one and the same.

The illegal allotment of 14 sites to the petitioner.

Now with this my lords, amongst the points that I have raised which my lords would get in the index,

My Lords wanted to know on point number 7

as regard the enjoyment of a proceeds of crime would it be a prerequisite for you to proceed under the PMLA Act.

My Lords may have page 20 where I have elaborated the aspects of enjoying the proceeds of a crime.

My Lords may notice there A.

One of the essential requirements to proceed under the provisions of PMLA Act is the need for the accused

or any other person claiming through him to be enjoying the

proceeds of crime at the time of initiation of the PMLA proceedings.

I have extracted clause 2 which uses the word enjoyment, my lords.

then but in any given case

if the alleged proceeds of crime have been written back to the appropriate authorities

and the person no longer enjoys the same then the question

of initiating the proceedings under PMLA Act does not arise the

object of the act itself is to prevent laundering as I will show from

that sketch my lot what laundering

and after interpretation what they say is the requirement my lot the object is to prevent laundering

and therefore when the alleged proceeds of crime are returned back to the appropriate authorities, then the question of laundering does not arise.

It may be a different scenario where post-initiation of proceedings under the Act, an accused chooses to surrender any proceeds of the crime.

In such a scenario, it is arguable as to whether the said Act of returning

the alleged proceeds of crime post-initiation of the proceedings would only be looked into as a mitigating circumstance if it happens later.

Unlike a case here my lords, on 1-10 it was returned, they registered the ECIR on the same day but they commenced all their inquiry thereafter.

However, in the present case, the records disclose that even before the initiation of any action under the act,

be it attachment, adjudication or confiscation, issuance of any summons under 50, initiation of any search or seizure,

the property in question, that is the 14 sites had already been surrendered to Muda

and the petitioner was no longer enjoying the alleged proceeds of crime, warranting any initiation of the PMLA proceedings.

Next page, post the surrender, the ED would get no jurisdiction to proceed under any provisions of the PMLA Act.

The essential ingredient as spelt out under section 3 of the Act are totally lacking.

There was no alleged proceeds of the crime post 1-10-2024 so as to initiate any action under the PML Act.

I have quoted Vijay Madharalal which I am going to be dealing more extensively my lords.

In Vijay Madharalal though my lords has seen it

but in the aspect of saying what are the ingredients constituting three I will point that out my lords.

E. The present initiation of the proceedings by the ED is without the existence of any jurisdictional fact

and therefore all subsequent and consequential proceedings call through.

That in maxim which my Lord's uses in number of matters.

Then my Lord's please notice the next page my Lord's there 12 aspects

that have to be fulfilled for the ED to assume jurisdiction.

My Lord's may just once quickly glance through those 12 aspects my Lord's.

In which my Lord's in that page last but one which we get such property should be projected as untainted money.

This is diluted my Lord's in Vijay Madanlar.

Because they say that and to be read as or.

So this is diluted.

The rest of it remains, my lords, till the next page.

Now, my lords, kindly now notice the diagram which we had put, my lords.

My lords had seen it on the last occasion.

Please notice page 17 for a minute, my lords.

One seven.

My lords may notice the first column of collection of dirty money.

Now, this is nothing but proceeds of the crime, my lord.

From the scheduled offense, whatever that you get would be proceeds of the crime.

But in the diagrams that we see, they use the word as dirty money, my lord.

Now, post this, there has to be some activity for PMLA to kick in.

Because you need some element of laundering of that dirty money, my lord.

That second aspect, which my lord would get as placement.

Now, under the PMLA Act, we would see they use the word process or activity.

Now process or activity and it's an inclusive definition which says it may include concealment,

possession, acquisition, use or projecting the property as untainted property.

So this is in so far as placement is concerned.

Then it would come to the aspect of layering.

Again they say or layering.

So one of the activities in this diagram would be necessary for you to proceed further under the PMLA.

Just the existence of dirty money is not enough.

You have to do a process or activity beyond that for it to become an offense under the PMLA.

So this layering and integration, my lords, the usage of the word is or.

So my lords, with this, my lords, the entire argument of mine would be, my lords, to attract the provisions of PMLA,

unless there is going to be any process or activity in furtherance of proceeds of crime, The ingredients do not kick in.

Now my lords, while we are talking about process and activity, incidental aspects that come is possession.

Whether you have possession of the property, is it necessary for you to proceed under PMLA?

And the enjoyment of the property, is it necessary for them to initiate action under the PMLA?

These are incidental aspects that come in my lords.

and also what would be the relevant date, my laws, when we say there is an offence under the PMLA.

This along with presumption under Section 24 of PMLA Act all came up for consideration in Vijay Madhan Lal's case, my laws.

Now, in Vijay Madhan Lal's case, when the constitutional validity of the Act itself was challenged,

my laws, the union who defended through the learned Solicitor General of India and the additional Solicitor General of India.

Now my Lord, my emphasis in pointing out Vijay Madhalal is to see it

from the point of view of the union itself as to how they foresaw this entire act

and what are the requirements for the initiation of proceedings under the act.

100

Now, for that, my lots, the entire aspect of Vijay Madan Lal and my lots,

101

I am leaving off the portion where the arguments on behalf of the petitioner challenging the constitutional validity, I am leaving that portion completely, my lots.

102

I will not go on that.

103

I want to go more on the aspect of saying how the central government viewed this Act and what, according to them, are the essential ingredients to constitute the offence.

104

Now, in Vijay Madhalal's case, my lord, in that big compilation, my lord, it's at number two.

105

But, my lord, what I thought would be more easy to follow on Vijay

106

Madhalal is I've extracted it in accordance with the topic-wise under Vijay Madhalal, my lord.

107

It would make it a little easier.

108

This is in specific reference to Vijay Matallal and Waibala Ji.

109

These are the two judgments that I am going to be pointing out

110

which mandates a process or activity in furtherance of a proceeds of crime.

111

My lords, kindly notice the first page, my lords, the three essentials to constitute the offense.

112

The first, that the criminal activity relating to the scheduled offense has been committed.

113

This is a mandate.

114

There should be a scheduled offense committed.

115

Second, my lords, that the property in question has been derived as a result of criminal activity.

116

Now, this property is proceeds of the crime.

117

That should have been derived.

118

Third is the most essential ingredient, my lords, in page one,

119

that the person concerned is directly or indirectly involved in any process or activity connected with the said property.

120

Now my lords, in our case, kindly notice my lords, 1-10-20-24,

121

the property is returned back.

122

So, two aspects there my lords.

123

The so-called proceeds of crime is no longer with the petitioner is one aspect

124

so to say that she is enjoying the proceeds of the crime doesn't arise

125

and definitely my lords the third aspect of saying she has done a process

126

or an activity force that will definitely not be there

127

so this third ingredient which i have pointed out my lords

128

if there's not going to be a process or activity you can't initiate an action under PMLA.

129

Now my lots please notice at page one in the bottom

130

once a proceeds of crime is established from a scheduled offense

131

then the person concerned should have involved himself into a process or activity connected with the said proceeds of crime.

132

My lots on the next page Vijay Madallal my lots

133

if for any reason there is no process

134

or activity in connection with the proceeds of crime then the provisions of the act are inapplicable.

135

This is how the union of India led by so-and-so had interpreted the act in the case of Vijay Madhalal, which till date holds the field, Malaz.

136

Even now, it is of precedential value.

137

The said argument had also been advanced by so-and-so who supplemented the argument.

138

Incidentally, the court would also interpret words such as need for possession, whether direct or indirect, dealing with proceeds of crime

139

and also the date from when it is to be held that an offence under the act has been committed.

140

The court also interprets the legal presumption under 24.

141

My Lord, I have gone to the next page.

142

So, my Lord, as regards the need for process or activity,

143

my Lord, the argument of the learned Solicitor General begins from paragraph 20, my Lord, the relevant portion for process or activity 20.30.

144

Summing up the recommendation of FATF, it is clarified by the learned solicitor general

145

that even in an act of mere concealment so my lords

146

and process of activity of concealment mere possession or mere use

147

or activity connected with the proceeds of crime per se is an offense in other words

148

if a person conceals the proceeds of crime, keeps it in his possession and uses it,

149

he is guilty of money laundering irrespective of as to whether he is projecting it as an untainted or not.

150

This is for the simple reason that

151

if a person conceals something proceeds of the crime it's an act committed knowingly

152

and thus the question of that person projecting that very thing either as tainted or untainted does not arise.

153

Melods may recollect section 3 the last portion of it use the word

154

and to answer that this was the argument that and should be read as or.

155

So 20.31 thus so long as any person knowingly becomes a party

156

or is actually involved in any process or activity connected with proceeds of crime such a person is guilty of money laundering.

157

20.33 the learned solicitor general submitted

158

that the interpretation put forth by the other side would effectively

159

result in granting the accused a license to commit the offense of money laundering

160

and thereafter either conceal the proceeds of crime

161

or keep them in their position or use them

162

and thereby wriggle out of the legislative intent of preventing money laundering by raising a plea that say what they were intended.

163

30.35 again strong emphasis is laid on the use of the words any interface any process or activity.

164

A careful reading of section 3 PMLA clearly provides that any process or activity of concealment, these are all the activities my laws,

165

concealment, possession, acquisition, use and or projecting claiming it as untainted property,

166

it is submitted that all or every type

167

or species of proceeds of activity connected with proceeds of crime shall be included while interpreting the nature of proceeds.

168

Then again, 20.36, activity required in furtherance of proceeds of trial.

169

Now, 20.37, my lords, it's page 4.

170

Again, the emphasis, there should be a process or activity.

171

My lords would get that at 20.37.

172

Now, my lords, at this point itself, I'll point out, my lords,

173

this process or activity which they speak about is not for the generation of proceeds of trial.

174

The process or activity which is spoken about is post the proceeds of crime laundering.

175

That's why my lord, prevention of money laundering.

176

So you may have proceeds of crime and you have done nothing about it.

177

It doesn't amount to laundering.

178

And you will have huge tax.

179

Don't use it for no laundering.

180

So here my lord, activity for laundering.

181

My lord, anything that happens prior to the proceeds of crime my lord is investigation of the predicate offense.

182

Because you investigate, now for example a drugs case, my Lord, which has come from some place.

183

The investigation takes place under NDPS Act.

184

Ultimately, what is the outcome of that?

185

It proceeds.

186

It stops.

187

Investigation stops there.

188

Now, if that proceeds is used, any further activity PMLA kicks in.

189

This is how, my Lord, the whole aspect of laundering takes place and that is where PMLA comes in.

190

But if the attempt is to say, we will investigate the generation of crime,

191

then you are intruding into the power and jurisdiction of the investigating officer who is investigating the predicate offense, which you cannot do, my lords.

192

No power or jurisdiction to do that.

193

Now kindly notice the submissions of the additional solicitor general, my lords.

194

How additional solicitor general at page 4 itself, Roman 4, paragraph 53 onwards are the submissions of the learned additional solicitor general.

195

Relevant is his interpretation of the presumption under section 24 of the PMLA Act,

196

his contention is that even to have the presumption under the Act, foundational facts have to be established.

197

He says which are the two foundational facts, my lord.

198

First is that the person should be charged with the offense of money laundering.

199

Kindly notice that, my lord.

200

And secondly, there should be proceeds of crime.

201

Probably it should have been the other way around, my lord.

202

You should first have proceeds of the crime and then laundering

203

but these two are foundational facts even for presumption under 24 to kick in

204

that in paragraph 53.31 my lord is 53.31

205

and then the additional solicitor general would contain concept of possession

206

is central to an offense of money laundering not skits that as roman number two at page, Roman 4, my lord, page 2.

207

Because they say, position is not there.

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Prática de Shadowing: Criminal case very enthusiastic Argument by senior Advocate - Aprenda a falar inglês com vídeo

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