SOWBHAGYA Vs. DEPUTY DIRECTOR DIRECTORATE OF ENFORCEMENT

JUDGEMENT

(1.) The petitioner has called in question the correctness and legality of the prosecution initiated against her in Spl.C.C.No.124/2014 for the alleged offence under section 3 of Prevention of Money Laundering Act, 2002(for short 'PML Act').

(2.) The contention of the learned counsel for the petitioner is that the predicate offence was alleged only against the husband of the petitioner. The charge sheet was also filed against the husband of the petitioner on 07.07.2011 in Spl.C.C.No.135/2011 under sections 420 , 506 and 120(B) IPC; but the provisional attachment order of attachment dated 25.09.2012 has been passed in respect of the properties held by the original accused as well as the petitioner under section 5(1) of PML Act. This attachment was made under the unamended Section 5 of the PML Act. The petitioner as well as the original accused filed their objections to the provisional attachment interalia contending that the properties acquired by the petitioner and her husband were not the "proceeds of crime". They were heard by the Adjudicating Authority and the matter was reserved for orders on 05.10.2012. But no order was passed until the amendment dated 15.02.2013. It is only after the amendment, confirmation order has been passed by the Adjudicating Authority on 22.02.2013 without rehearing the petitioner or her husband/accused No.9.

(3.) It is the submission of learned counsel for the petitioner that prior to amendment of section 5 of PML Act, the provision postulated a charge for the schedule offence. But this requirement was done away with after the amendment Act 2 of 2013 w.e.f. 15.02.2013. Since the petitioner was not prosecuted for the predicate offence and charge for criminal offence specified in the schedule having not been framed against her as required under the pre-amended section 5 of PML Act, a vested right created in favour of the petitioner has been taken away and therefore the confirmation of the attachment and consequent initiation of criminal prosecution against the petitioner is bad in law and violative of Article 20(2) of the Constitution of India.