Farooq’s ED Attachment ‘Provisional’, No Interim Order Needed: High Court

Srinagar, April 02 : Jammu and Kashmir High Court has said that Enforcement Directorate’s order, attaching National Conference President Farooq Abdullah properties in a case of alleged money laundering was just provisional and as such it does not consider it to be “an appropriate case to pass any interim order at this stage.”

“In view of the facts and circumstances and looking to the fact that presently the petitioner (Farooq) has only been served with a show cause notice in which we are told 20th April, 2021 is the next date fixed and the fact that the order of attachment is provisional in nature which is valid for a period of 180 days only, we do not consider it to be an appropriate case to pass any interim order at this stage particularly when the laundering of Rs 43.69 crores of the amount is not in dispute which in all fairness ought to be returned to the public body i.e., JKCA,” said a bench of Chief Justice Pankaj Mithal and Justice Vinod Chatterji Koul.

The court directed officials to file their counter affidavit to the Farooq’s petition within a period of three weeks and also allowed one week thereafter to the octogenarian to file rejoinder affidavit.

Farooq, the former three-time Chief Minister of J&K, has challenged the action of the Authorities under the PML Act, among others on the issue of jurisdiction, the applicability of PML Act to the erstwhile State as also on grounds of illegality and procedural irregularities.

The 83-year-old parliamentarian has said his ancestral and family properties in J&K have been illegally attached by ED despite the fact that it had “no jurisdiction to do the same.”

Sidharth Luthra, Senior Counsel, representing Farooq Abdullah referred to various provisions of the PMLA and submitted that Farooq can only be proceeded under the PMLA in connection with the scheduled offence as per the Schedule-A of the Act.

“The offences under Sections 406 and 409 of RPC are not the scheduled offences and merely for an offence under Section 120-B RPC, the petitioner (Farooq) is not liable to be proceeded with under the PMLA”.

Moreover, he said, the Schedule enlists the offence of criminal conspiracy under Section 120-B Indian Penal Code as one of the scheduled offences and does not refer to any offence under RPA muchless under Section 120-B RPC. “The order of provisional attachment does not contain any reason to believe nor does the properties inherited by him or received in gift from his ancestors or any property which has been privately acquired by him are liable to attachment as they are not “proceeds of the crime”.”

The order of provisional attachment, he said, greatly undervalues the properties attached so as to attach almost all the properties of Farooq. “Therefore, the entire proceedings are without jurisdiction and are malafide.”

Solicitor General in defence submitted that the PMPLA has been enacted by the Parliament in view of the political declaration adopted by the Special Session of the United Nations General Assembly calling upon the member states to adopt national money laundering legislation. “India being the member State accordingly enacted the aforesaid Act extending it to the whole of India,” he said, adding, “Thus, it cannot be said that the aforesaid enactment is beyond the legislative competence of the Parliament.”

He refers to Section 2(2) of the PMLA to contend that any reference in the Schedule to the Act to any enactment or provision which is not in force in the “area” where it is applicable would be construed as a reference to the corresponding law or the corresponding provision, if any, in force in that “area”.

“Thus, as the Act is applicable to the whole of India, it is applicable to the Jammu & Kashmir also and the reference to Section 120-B in the Schedule to the said Act refers to Section 122-B of RPC as they are corresponding and pari materia.”

After hearing both sides, the court said that an attempted to rely upon certain precedents which “we need not to discuss as we are not adjudicating upon the various issues raised at this stage without giving an opportunity to the respondents to file their response.” gns

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