Delhi High Court
Advantage India vs Directorate Of Enforcement & Anr. on 22 August, 2023
$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 1463/2021 & CRL.M.A. 12270/2021
ADVANTAGE INDIA ..... Petitioner
Through: Mr. Shashwat Sarin, Adv.
versus
DIRECTORATE OF ENFORCEMENT & ANR. ..... Respondents
Through: Mr. Joheb Hossain, Special Counsel
for ED, Mr. Vivek Gurnani & Mr.
Baibhav, Advocates for R-1.
Ms. Anubha Bhardwaj, SPP, CBI &
Mr. Sachin Singh, Advocate for CBI
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
ORDER
% 22.08.2023
1. Vide the present petition; the petitioner is seeking following reliefs:
"(i) Issue an appropriate writ or direction thereby declaring
Section 44(1)(c) of the Prevention of Money Laundering Act,
2002 as ultra-vires and unconstitutional and strike it down
consequently;
(ii) Call for the record of the case bearing No. CBI 14/2020
titled - "CBI vs Deepak Talwar & Ors.", now pending before
the court of Ms. Anuradha Shukla Bharadwaj, Ld. ASJ, Rouse
Avenue Courts as C. C. 17/2021;
(iii) Quash and set aside the impugned order dated
18.02.2021 passed by the court of Ms. Ambika Singh, Ld.
CMM, Rouse Avenue Courts, Delhi, in case bearing No.
C.B.I. 14/2020 titled - "CBI vs Deepak Talwar & Ors."
(iv) Direct the court of Ms. Anuradha Shukla Bharadwaj.
Signature Not Verified
DigitallySigned By:SAHIL
SHARMA
Signing Date:25.08.2023
11:28:52
Ld. ASJ, Rouse Avenue Courts, Delhi to transfer/commit the
matter bearing CC No. 17/2021 arising out of RC-36- DAI-
2017, back to the court of Ms. Ambika Singh, Ld. CMM,
Rouse Avenue Courts, Delhi for trial."
2. Learned counsel appearing on behalf of the respondents has produced
two judgments of the Supreme Court, whereby the prayers of the present
petition have been answered.
3. In case of Rana Ayyub vs. Directorate of Enforcement through its
Assistant Director in Writ Petition (CRL.) No. 12/2023 observed and held
that :-
"35. The only contingency that could not have been
provided in the above provisions of the Cr.P.C, is perhaps
where the offence of money-laundering is committed. This is
why Section 44(1) begins with a non-obstante clause. The
whole picture is thus complete with a combination reading
of Section 44 of the PMLA and provisions of Section 177 to
184 of the Cr.P.C."
"36. Once this combined scheme is understood, it will be
clear that in view of the specific mandate of clauses (a) and
(c) of sub-section (1) of Section 44, it is the Special Court
constituted under the PMLA that would have jurisdiction to
try even the scheduled offence. Even if the scheduled offence
is taken cognizance of by any other Court, that Court shall
commit the same, on an application by the concerned
authority, to the Special Court which has taken cognizance
of the offence of money-laundering. This answers the first
question posed before us."
4. Regarding the prayer (ii) the learned counsel has produced a
judgement titled as Vijay Madanial Choudhary and Others vs. Union of
India and Others. 2022 SCC OnLine SC 929, the Supreme Court has
observed and held as under :-
" 366. In the context of this provision, it was
Signature Not Verified
DigitallySigned By:SAHIL
SHARMA
Signing Date:25.08.2023
11:28:52
emphatically argued before us by the petitioners that it
would take away one right of appeal, otherwise available
under the 1973 Code. Resultantly Section 44(1) (c) of the
2002 Act in particular, is unconstitutional. To buttress this
submission, reliance has been placed on the dictum in A.R.
Antulay570. However, this ground need not detain us in
view of the just stand taken by the learned Additional
Solicitor General appearing for Union of India relying on
the decision of this Court in State (Through Central Bureau
of Investigation) vs. Kalyan Singh (Former Chief Minister
of Uttar Pradesh) & Ors.571, which 570 Supra at Footnote
No.134 571 (2017) 7 SCC 444 has considered similar
challenge. The latter decision has distinguished the
exposition in A.R. Antulay 572. In that, the core issue
considered in A.R. Antulay573 was whether the High Court
was competent to transfer the criminal trial pending before
the Special Court dealing with the offence of PC Act, to
itself by invoking powers under Section 407 of the 1973
Code. The Court answered the same in the negative and
held that such power does not exist in the High Court and it
would inevitably violate Article 21 of the Constitution.
However, we are dealing with the dispensation provided by
the law made by the Parliament in the form of 2002 Act.
This being a special legislation and keeping in view the
purport of Sections 65 and 71 of the 2002 Act, it is not
possible to countenance the ground of challenge under
consideration. We may usefully refer to paragraph 28 of
Kalyan Singh 574, which reads thus:
"28. In the present case, the power of transfer is
being exercised to transfer a case from one Special Judge
to another Special Judge, and not to the High Court. The
fact that one Special Judge happens to be a Magistrate,
whereas the other Special Judge has committed the case to
a Court of Session would not make any difference as, as
has been stated hereinabove, even a right of appeal from a
Magistrate 572 Supra at Footnote No.134 573 Supra at
Footnote No.134 574 Supra at Footnote No.571 to the
Sessions Court, and from the Sessions Court to the High
Signature Not Verified
DigitallySigned By:SAHIL
SHARMA
Signing Date:25.08.2023
11:28:52
Court could be taken away under the procedure
established by law i.e. by virtue of Sections 407(1) and (8)
if the case is required to be transferred from the
Magistrate at Rae Bareilly to the High Court itself. Hence,
under Section 407, even if 2 tiers of appeal are done away
with, there is no infraction of Article 21 as such taking
away of the right of appeal is expressly contemplated
by Section 407(1)(iv) read with Section 407(8). In the
circumstances, Antulay575 judgment which dealt with the
right of a substantive appeal from a Special Judge to the
High Court being taken away by an order of transfer
contrary to the non obstante clause in Section 7(1) of the
Criminal Law Amendment Act, 1952 would not apply in
the facts and circumstances before us."
367. Applying the principle underlying this decision,
we have no hesitation in rejecting the challenge to Section
44 as unconstitutional being violative of Articles 14, 20(3)
and 21 of the Constitution."
5. In addition to above, the learned Ld. CMM, Rouse Avenue Courts,
Delhi vide its order dated 18.02.2021 passed order as under :-
"As per section 44 (3c) Prevention of Money-
Laundering Act. 2002:- "if the court which has taken
cognizance of the scheduled offence is other than the
Special Court which has taken cognizance of the complaint
of the offence of money-laundering under sub-clause(b), it
shall, on an application by the authority authorized to file a
complaint under this Act, commit the case relating to the
scheduled offence to the Special Court and the Special
Court shall, on receipt of such case proceed to deal with it
from the stage at which it is committed"."
In view of the aforesaid Section i.e. Section 44 (3) (c), I
deem it appropriate to commit the case to Ld. Sessions
Court. As far as the contention of Ld. Defence counsel that
there is an ambiguity in the PMLA Law and making as
reference to Hon'ble High Court of Delhi, I would like to
say that the present court has no jurisdiction to deal with
Signature Not Verified
DigitallySigned By:SAHIL
SHARMA
Signing Date:25.08.2023
11:28:52
the cases under PMLA and therefore, I am of the opinion
that this request is not maintainable in this case.
Ld. Counsel for the accused has relied upon the
judgments in The Directorate of Enforcement Vs. Karti P
Chidambaram passed by Hon'ble Supreme Court of India
Dairy No. 9360/2018, 9365/2018 dated 09.03.2018.
The Directorate of Enforcement has also relied upon
the judgments in Directorate of Enforcement Vs. Surajpal &
Ors, dated 10.08.2018, Crl. M.A. No. 1025/2017 and
Directorate of Enforcement Vs. CBI and Anr. Crl. Rev. P.
No. 131/2016 dated 08.02.2017. I have gone through the
same. The present court has highest regard for the
authorities as placed on record on behalf of the accused but
they do not apply to facts and circumstances of the case.
"Therefore, in these circumstances, the matter stands
committed to the court of Ld. Sessions Courts and let it be
listed before Principal District & Sessions Judge, RADC for
02.03.2021 at 02.00 PM for appropriate orders."
6. In view of the above, nothing survives in the present petition and is
hereby dismissed.
SURESH KUMAR KAIT, J
NEENA BANSAL KRISHNA, J
AUGUST 22, 2023/AT
Signature Not Verified
DigitallySigned By:SAHIL
SHARMA
Signing Date:25.08.2023
11:28:52
