Besco International FZE Vs Deputy Director (Appellate Tribunal under Safema At Delhi)
Summary: The Appellate Tribunal under SAFEMA dismissed M/s Besco International FZE’s appeal challenging confirmation of the Provisional Attachment Order under the Prevention of Money Laundering Act, 2002. The sole issue pressed by the appellant was that the attached properties had been acquired in 2015, before registration of the FIR on 08.08.2016 and before the alleged criminal activity, and therefore could not constitute “proceeds of crime.” The Tribunal examined Section 2(1)(u) PMLA and held that the expression covers not only property directly or indirectly derived or obtained from criminal activity but also the “value of any such property.” Consequently, where actual proceeds of crime have vanished or been siphoned off, property of equivalent value may be attached even though it was acquired before commission of the crime. The Tribunal relied particularly on Vijay Madanlal Choudhary v. Union of India, Enforcement Directorate v. Axis Bank, Prakash Industries Ltd. v. Directorate of Enforcement and its decision in Ayush Kejriwal. It considered the contrary reasoning relied upon from Satish Motilal Bidri, while noting the binding Supreme Court interpretation in Vijay Madanlal Choudhary. The Tribunal concluded that prior acquisition by itself does not immunise property from attachment as equivalent-value property where proceeds directly or indirectly derived from criminal activity are unavailable because they have vanished or been siphoned off. Finding no merit in the only issue urged, the Tribunal dismissed the appeal.
Cases Discussed
- Satish Motilal Bidri Vs Union of India, W.P.(Crl.) No. 406/2024, Kerala High Court, dated 28.06.2024 — relied upon by the appellant for the proposition that attachment should extend to property acquired using proceeds of crime and not to an unrelated property acquired much before the predicate offence. The Tribunal considered the ruling but noted that the relevant paragraph 68 of Vijay Madanlal Choudhary had not been referred to therein
- Pavana Dibbur Vs Directorate of Enforcement, 2023 SCC OnLine SC 1586 (Supreme Court) — referred to in the context of the Kerala High Court judgment; the Tribunal observed that the argument concerning “value of any such property” had been considered in Vijay Madanlal Choudhary.
- Vijay Madanlal Chaudhary & Ors. Vs Union of India, 2022 SCC OnLine Supreme Court 929 (Supreme Court) — paragraph 68 was treated as binding by the Tribunal. The three-Judge Bench ruling was relied upon for the interpretation that “proceeds of crime” is wide enough to cover both property derived or obtained from criminal activity and the value of such property.
- Prakash Industries Ltd. Vs Directorate of Enforcement, 2022 SCC OnLine Del 2087 (Delhi High Court) — relied upon for holding that even property acquired before enforcement of PMLA is not completely immune where recourse is taken against equivalent-value property because the actual tainted property cannot be traced or found, subject to the safeguards recognised in Axis Bank.
- Seema Garg Vs Deputy Director, Directorate of Enforcement, 2020 SCC OnLine Punjab & Haryana 738 (Punjab & Haryana High Court) — referred to through the Kerala High Court decision in connection with the interpretation of attachment of property acquired prior to the scheduled offence.
- Enforcement Directorate Vs Axis Bank, 2019 SCC OnLine Del 7854 (Delhi High Court) — relied upon for the distinction between tainted property and alternative attachable/deemed tainted property and for recognising attachment of equivalent-value property where tainted assets are untraceable, inaccessible or insufficient.
- Ayush Kejriwal Vs Deputy Director, Directorate of Enforcement, Kolkata, FPA-PMLA-4358/KOL/2021 (Appellate Tribunal under SAFEMA) — followed by the Tribunal for holding that even where property was not directly or indirectly obtained from crime, property representing its value can be subjected to attachment; the Tribunal held the present matter squarely covered by this decision.
FULL TEXT OF THE APPELLATE TRIBUNAL UNDER SAFEMA ORDER
1. By this Appeal u/s 26 of the Prevention of Money Laundering Act, 2002 (in short the Act of 2002), a challenge has been made to the order dated 19thDecember,2018 passed by the Ld. Adjudicating Authority confirming the Provisional Attachment Order.
2. The brief facts of the case are as under:
a) It is a case where FIR No. RCBD1/2016/E/0007 dated 08.08.2016 was registered by the CBI (BS & FC), New Delhi for offence under section 120B read with 420 of Indian Penal Code, 1860 and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988. It was on a Complaint of the General Manager, Indian Overseas Bank, Zonal Office, Delhi alleging that the accused Ashu Mehra, Assistant Manager, Forex Department, Indian Overseas Bank, Chandigarh Main Branch in conspiracy with other accused persons cheated Indian Overseas Bank, which caused a liability to the tune of USD 47.86 Million equivalent to approximate Indian Rs. 321.00 crores as on date (@Rs. 67 per USD).
b) The accused Ashu Mehra had been working as an Assistant Manager, Forex Department, Indian Overseas Bank, Chandigarh Main Branch since 2010 and was also having the authority to make and check all SWIFT messages of the Bank. Besides, the Accused Ashu Mehra, two more officers namely accused Nitish Negi and Gaurav Bhatia were named by the Bank. They were working as Assistant Managers in the Bank and further informed that they were handling forex operations and were having the authority to make and check all SWIFT messages of the Bank Branch.
c) The accused Ashu Mehra in collusion with other customers of the complainant bank, namely M/s Vision Procon (through its Proprietor Dinesh Kumar, Accused), M/s Heights International (through its Proprietor Amanpreet Singh Sodhi, Accused), and M/s Saibhakti Impex Pvt. Ltd., Accused (through its Directors Aman Kirpal – Accused and Gaurav Kirpal – Accused) to have caused loss to the bank to the tune of USD 47.86 Million equivalent to approximate Indian Rs. 321.00 crores (calculated @ Rs. 67 per USD) as on date.
d) M/s Colour Wave (HK) Ltd., an accused company, having office address at G/F, CAR, PO, Commercial Building, 18-20, Lyndhurst Terrace Central Hong Kong (Also at 4/E, Flat D-E, Wah Factory Building, 50-60, Wong Chuk Hang Road, Aberdeen) was the beneficiary of all the fraudulent SWIFT Messages sent.
e) Further, Brigadier (Retd.) M.S. Dullat, Accused, is the father-in-law of Accused and is Director in M/s Vyapar Agrotech Limited in which the Accused Mr. Amanpreet Singh Sodhi was another Director.
f) The Indian Overseas Bank had informed that Accused Ashu Mehra, the master mind, was indulging in issuing Letters of Undertaking (LOUs) through SWIFT messages fraudulently in collusion with others to cheat the Bank. The overseas banks had provided Buyers Credit to their customers on the basis of the said fraudulent LOUs issued by the IOB, Chandigarh. The overseas banks were demanding IOB to remit the said amount to them. It has been further informed by the IOB that on verification of their records, it was found that no such request for LOUs to the Buyers Credit was authorized by the Branch Manager and LOUs were issued through swift messages by the accused Ashu Mehra and his other bank staff by abusing their official position.
g) The accused Ashu Mehra of IOB in collusion with other staff members by indulging in aforesaid modus-operandi had created liability with the complainant bank to the tune of Rs. 321.00 crores calculated at the exchange rate of Rs. 67.00 per USD which is due for payment between 01.07.2016 to 28.01.2017.It was further alleged that there was no movement of goods & services or underlying commercial transactions behind these fraudulent transfers of funds.
h) On the basis of the fraudulent LOUs issued by Ashu Mehra, the foreign banks have credited the accounts of the beneficiary i.e. M/s Colour Wave (HK) Ltd. The Bank was informed that in the preliminary investigations it was found that the accused Mr. Amanpreet Singh Sodhi, Proprietor of M/s Heights International is also Director in M/s Colour Wave (HK) Ltd., Hong Kong, is the beneficiary for all the Buyers Credit; apart from Mr. Dinesh Kumar, Proprietor of M/s Vision Procon, an authorized signatory for the operations in the account of M/s Heights International and that there are also inter-account transactions between these three entities.
i) The Indian import firms/company M/s Heights International, M/s Vision Procon and M/s Saibhakti Impex Pvt. Ltd. were shown by the accused Ashu Mehra, Assistant Manager, Indian Overseas Bankto be applicants for availing Buyers Credit from the complainant bank, viz. Indian Overseas Bank, Sector 7, Madhya Marg, Chandigarh.
j) As per documents provided by the complainant bank, the applicant Indian importers were importing goods from the accused Hong Kong based company M/s Colour Wave (HK) Ltd. and for the payment of the same to the overseas supplier, the buyers credit scheme was availed by them. In the investigation conducted revealed that in actual no goods were imported corresponding to the buyers credit availed by the Indian importers.
k) For availing the buyers credit, the applicant Indian importers were required to obtain offer letters from the overseas funding banks. For obtaining the offer letters, the accused Ashu Mehra was in touch with another accused Amanpreet Singh Sodhi (Proprietor of M/s Heights International, Ludhiana as well as Director of M/s Colour Wave(HK) Ltd.). The investigation further revealed that the accused Amanpreet Singh Sodhi was in touch with one Nitin Girdhar of M/s Nextgen Financial Services having office in Indirapuram, Ghaziabad (UP) for obtaining the offer letters from the overseas funding banks.
l) Based upon the fraudulent LOUs issued through SWIFT messages, the overseas funding banks, viz. Punjab National Bank, Dubai and Bank of Baroda, Bahamas, disbursed the funds on account of the said fraudulent LOUs to the HSBC bank account of the beneficiary accused company, viz. M/s Colour Wave (HK) Ltd., in Hong Kong.
m)The beneficiary accused Hong Kong based company, viz. M/s Colour Wave (HK) Ltd., used to repatriate the proceeds of crime generated as a result of the said fraudulent LOUs into the bank accounts of the firms/companies owned or controlled by the accused in India, either directly or by routing the same through bank accounts of two firms M/s Besco International FZE (belonging to the accused Atul Kumar Garg, an associate of Mr. Gaurav Kirpal) and M/s Al Dishu Trading FZE (belonging to the accused Mr. Dinesh Kumar) in UAE, by resorting to trade-based money laundering.
n) Atul Kumar Garg, Partner, M/s Besco International FZE, UAE said to have received total amount of USD 2,20,68,810.00 in his firm from M/s Colour Wave (HK) Ltd. and USD 6,83,864.00 from M/s Al Dishu Trading FZE, UAE (M/s Al Dishu Trading USD FZE, UAE. The funds received by M/s Besco International FZE from accused Hong Kong based company, viz. M/s Colour Wave (HK) Ltd., apart from others was utilized for purchase of properties. It was also utilized by them for sending foreign remittances to the various export firms/companies, owned and controlled by the accused Gaurav Kirpal, in lieu of their over-valued exports.
o) The proceeds of crime to the tune of AED 25,45,722.00 (equivalent to approximately Rs. 4,72,48,885/- on taking 1 AED Rs. 18.56/-) were invested by the accused Gaurav Kirpal and Aman Kirpal for acquiring properties in their personal name (viz. in the name of the accused Aman Kirpal) and in the name of the firm M/s Besco International FZE. The Adjudicating Authority found that the properties attached by PAO No. 01/2019 dated 29.06.2018are `proceeds of crime‟ in terms of Section 2(1)(u) of the Act of 2002.
Arguments of the appellant:
3. The learned counsel for the appellant submitted that the properties attached by the respondent were acquired much prior to the alleged offence in the year 2015, and in July 2016 to January 2017 (i.e., when the LOUs stated to have been issued). The properties were thus not obtained or derived out of criminal activity of scheduled offence.
4. It is further submitted by the counsel for the appellant that the respondent registered ECIR on 19.09.2016 and POA was issued on 29.06.2018 i.e., after two years from the date of registration of the ECIR. The question of acquisition of said property as a result of alleged criminal activity does not arise. The appellant thus, prayed to set aside the order of confirmation passed by the Adjudicating Authority.
Arguments of opposite side:
5. The learned counsel for the respondent has contested the appeal. The counsel submitted pursuant to the provision of the Act of 2002, the Authority is empowered to attach not only the property acquired or obtained directly or indirectly from the scheduled offence, but any other property of equivalent value, in case the property acquired out of crime has been vanished or siphoned off. Reference to the definition of `proceeds of crime‟ under Section 2 (1) (u) of the Act of 2002 has been given. The definition includes not only the property directly or indirectly obtained out of the scheduled offence but even property of equivalent value. Thus, it is not necessary that the property attached or seized should be directly or indirectly an outcome of the crime rather in a given case where it has been siphoned off or vanished, it can be a property of equivalent value to the amount involved in the crime even acquired prior to the crime.
6. It is further submitted that if somebody is in possession of the property out of money laundering or falls within the definition of the `proceeds of crime‟ then it could be subjected to seizure or attachment though the person possessing the property or holding it may not be an accused. The requirement is to attach the „proceeds of crime‟ involved in money laundering, thus, no case is made out in favour of the appellant on any of the issues raised by them. The prayer was made to dismiss the appeal.
Finding:
7. The only issue raised by the appellant before us is that the property under attachment were acquired prior to the commission of the crime. The counsel for the appellant had submitted that property in question was acquired in the year 2015 while FIR was registered on 08.08.2016 followed by Provisional Attachment Order dated 28.06.2018. The properties acquired much prior to the commission of offence would not fall within the definition of “Proceeds of Crime”. The aforesaid was the only ground raised before us for challenge to the impugned orders.
We have considered the rival submissions of the parties and perused the record.
8. To analyze the argument aforesaid, it would be gainful to quote definition of Proceeds of Crime given u/s 2(1)(u) of the Act of 2002 and is quoted thus:
“(u) “proceeds of crime” means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property [or where such property is taken or held outside the country, then the property equivalent in value held within the country or abroad];
Explanation. For the removal of doubts, it is hereby clarified that “proceeds of crime” include property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence;]”
A perusal of the definition would show that the „proceeds of crime‟ includes the property derived or obtained directly or indirectly out of criminal activity but that is not end of the definition of Proceeds of Crime. It can be for „value of any such property’. The aforesaid words used in the definition of “Proceeds of Crime” is to cover those properties which are not derived or obtained directly or indirectly out of the criminal activity but attached for value equivalent to the Proceeds of Crime if money acquired has been vanished. The Act of 2002 was enacted pursuant to the International Convention to address the offence of money laundering. If the definition of “Proceeds of Crime” is given restricted meaning to hold that it shall include only the properties obtained or derived directly or indirectly from the criminal activity then it would nullify the very objects of the enactment and the consequence of it would be serious. It would result to a situation where the accused would immediately try to vanish or siphon off the proceeds so that the properties may not be attached. In light of the same, the definition has been framed after taking care of all the circumstances and therefore it is not that only the property derived or obtained directly or indirectly from the crime would come within the sweep of Proceeds of Crime but it would be the property of equivalent value as well which may not have nexus with the proceeds of crime. It would also be when the property is taken or held outside the country then the property of equivalent value held within the country. The argument that attachment can be only of the property derived or obtained directly or indirectly out of the criminal activity was an issue before the Delhi High Court in the case of Enforcement Directorate v. Axis Bank, reported in 2019 SCC OnLine Del 7854 and Prakash Industries Ltd. v. Directorate of Enforcement, reported in 2022 SCC OnLine Del 2087.
9. The Ld. Counsel for the Appellant referred a judgment of Kerala High Court in W.P.(Crl) No. 406/2024 Satish Motilal Bidri vs. Union of India dated 28th June, 2024 to press upon the argument that attachment can be only of the proceeds obtained directly or indirectly out of criminal activity and it cannot be of any other property of equivalent value. Para 9, 17 and 18 of the judgment in the case of Satish Motilal Bidri (Supra) has been referred and are quoted thus:
“9. On a perusal of the above schedule which specifies the properties that have been provisionally attached, it is evident that the immovable property attached was purchased by the petitioner on 05.01.2004. From Ext.P11 it can be understood that M/s Masters Finserv – the proprietary concern promoted by the accused in the predicate offence, commenced its operations in 2017 while the predicate offences are alleged to have been committed between 27-01-2021 and 14-11-2022. Therefore, it is evident that the immovable property that has been provisionally attached as per the impugned order was purchased more than a decade and a half before the alleged offence took place.
17. The aforesaid observations indicate that the properties that can be proceeded against, exercising the powers of attachment must be those that have been acquired utilizing the proceeds of crime. The contention of the learned counsel for the respondents that the term proceeds of crime will also include the value of the property which had been acquired even earlier is, according to me, too far-fetched and will not be justifiable in the light of the constitutional provisions of fairness and reasonableness. It is also necessary to observe at this juncture that the purpose of the PMLA is to remove tainted money and also to initiate proceedings against the proceeds of crime which have been transformed or converted into other property or intermingled with legitimate sources and then the value of the intermingled gain will assume the colour of proceeds of crime. Such a provision cannot be used to enable the authorities to proceed against properties that are unconnected with any of the criminal activity in question.
18. Viewed in the above perspective, as the provisionally attached immovable property was purchased in 2004 more than a decade and a half before the predicate offence was allegedly committed, the order attaching the immovable property is ex-facie, ultra vires the powers of the statute and totally illegal and arbitrary to the extent of the said attachment. Since ex facie illegal acts can be interfered with under Article 226 of the Constitution of India, notwithstanding the existence of an alternative remedy, this Court is of the view that the provisional attachment of the immovable property as seen from schedule A to Exhibit P11 order dated 22.05.2024 is liable to be set aside. However, as relating to the provisional attachment mentioned in schedule B to Exhibit P11, i.e. those relating to the amount in the bank accounts the petitioner has an effective alternative remedy provided by the statute.”
The perusal of the judgment in the case of Satish Motilal Bidri (supra) would show reference of the earlier judgment of different High Courts, which includes the judgment in the case of Seema Garg Vs. Deputy Director, Directorate of Enforcement 2020 SCC online Punjab & Haryana 738 and also the judgment in the case of Axis Bank (supra).
We, however, do not find reference of relevant para of the judgment of the Apex Court in the case of Vijay Madanlal Chaudhary &Ors. Vs. Union of India 2022 SCC online Supreme Court 929rather makes reference of other paras. Para 68 of the said judgment is relevant and quoted thus:
“68. It was also urged before us that the attachment of property must be equivalent in value of the proceeds of crime only if the proceeds of crime are situated outside India. This argument, in our opinion, is tenuous. For, the definition of “proceeds of crime” is wide enough to not only refer to the property derived or obtained as a result of criminal activity relating to a scheduled offence, but also of the value of any such property. If the property is taken or held outside the country, even in such a case, the property equivalent in value held within the country or abroad can be proceeded with. The definition of “property” as in Section 2(1)(v) is equally wide enough to encompass the value of the property of proceeds of crime. Such interpretation would further the legislative intent in recovery of the proceeds of crime and vesting it in the Central Government for effective prevention of money-laundering.”
The para quoted above was not referred before Kerala High Court though a judgment of the Supreme Court in the case of Pavana Dibbur Vs. Directorate of Enforcement 2023 SCC online SC 1586has been referred. The arguments in reference to the issue of definition of proceeds of crime to the words “value of any such property” was raised and decided in the judgment of Vijay Madanlal Chaudhary (Supra).It is by three Judge Bench and would be binding on us. At this stage, we may also refer to the relevant paras of the judgment of Delhi High Court in the case of Axis Bank (Supra) and are quoted thus:
“106. Among the three kinds of attachable properties mentioned above, the first may be referred to, for sake of convenience, as “tainted property” in as much as there would assumably be evidence to prima facie show that the source of (or consideration for) its acquisition is the product of specified crime, the essence of “money laundering” being its projection as “untainted property” (Section 3). This would include such property as may have been obtained or acquired by using the tainted property as the consideration (directly or indirectly). To illustrate, bribe or illegal gratification received by a public servant in form of money (cash) being undue advantage and dishonestly gained, is tainted property acquired “directly” by a scheduled offence and consequently “proceeds of crime”. Any other property acquired using such bribe as consideration is also “proceeds of crime”, it having been obtained “indirectly” from a prohibited criminal activity within the meaning of first limb of the definition.
107. In contrast, the second and third kinds of properties mentioned above would ordinarily be “untainted property” that may have been acquired by the suspect legitimately without any connection with criminal activity or its result. The same, however, are intended to fall in the net because their owner is involved in the proscribed criminality and the tainted assets held by him are not traceable, or cannot be reached, or those found are not sufficient to fully account for the pecuniary advantage thereby gained. This is why for such untainted properties (held in India or abroad) to be taken away, the rider put by law insists on equivalence in value. From this perspective, it is essential that, before the order of attachment is confirmed, there must be some assessment (even if tentative one) as to the value of wrongful gain made by the specified criminal activity unless it be not possible to do so by such stage, given the peculiar features or complexities of the case. The confiscation to be eventually ordered, however, must be restricted to the value of illicit gains from the crime. For the sake of convenience, the properties covered by the second and third categories may be referred to as “the alternative attachable property” or “deemed tainted property”.
The issue aforesaid was considered by Delhi High Court even in the case of Prakash Industries (supra) and relevant paras of the judgment are also quoted hereunder:
“105. It would be pertinent to recall that properties which were acquired prior to the enforcement of the Act may not be completely immune from action under the Act in light of what this Court had held in Axis Bank. As was explained by the Court in Axis Bank, the expression proceeds of crime envisages both ―tainted property as well as ―untainted property with it being permissible to proceed against the latter provided it is being attached as equal to the “value of any such property” or “property equivalent in value held within the country or abroad”. However, both the italicised categories would be liable to be invoked in cases where the actual tainted property cannot be traced or found out. It is only where the respondents are unable to discover the tainted property that they can take the statutory recourse to move against properties which may fall within the ambit of ―value of any such property or ―property equivalent in value held within the country or abroad. To the aforesaid limited extent, properties purchased prior to 01 July 2005 may also become vulnerable and subject to action under the Act. However, enforcement action against such properties would have to satisfy the tests and safeguards as propounded in Axis Bank with the learned Judge observing that in such a situation it would have to be established that the person accused of money laundering had an interest in such property at least till the time that he indulged in the proscribed criminal activity. The learned Judge further observed that bona fide rights acquired by third parties prior to the commission of the predicate offense would stand saved.”
The issue as to whether the properties acquired prior to the commission of the offence can be attached. The issue aforesaid has been dealt with by this Tribunal in the case of Ayush Kejriwal vs. The Deputy Director, Directorate of Enforcement, Kolkata, FPA-PMLA-4358/KOL/2021. Relevant paras are quoted hereunder for ready reference:
“15. It is also necessary to clarify that if the accused derived or obtained the property out of the crime has parked it with other person, then the person holding such property can be subjected to attachment or seizure though he may not be accused in the FIR. It is for the reason that if the interpretation otherwise is taken, it would frustrate the object of the Act of 2002. It can be in a manner that the person who derived or obtained the property out of the crime may immediately park it with a third person and the property in that case would not be liable for attachment or seizure for the reason that the person holding the property has not been named as an accused, in that case, the very purpose and object of the Act would be frustrated. In view of the above, even if the appellant is not named as an accused but he is holding the `proceeds of crime‟ and even if the property if not directly or indirectly obtained out of the crime but is of the value thereof, it would fall in the definition of “proceeds of crime” and such property or document can be subjected to seizure.
16. In the instant case, serious allegations of fraudulent transactions to the tune of Rs.164.99 crores exists against many accused which includes appellant’s grandfather. The appellant’s grandfather purchased a property in the year 1988 but it was gifted to the appellant in the year 2020 after registration of the FIR in the year 2017 and even the ECIR. It was by way of gift the property was transferred to the appellant to overcome with the fraud committed by him with the bank and to save the property from seizure and attachment. It was not gifted bonafide but to save the property from seizure and attachment after registration of FIR though it was not obtained out of the proceeds of crime but is for the value thereof in absence of the availability of the total proceeds out of the crime i.e. Rs.164.99 crores.
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18. The fact is that the property was originally belonging to the accused Nirmal Kumar Kejriwal, the grandfather of the appellant. A gift was made in the year 2020 in favour of the appellant whereas the FIR was registered in the year 2017 followed by the ECIR in the year 2019. The way property was given to the appellant has been noticed and as it was earlier belonging to one of the accused thus, the documents were seized by the respondent and we do not find any illegality in it. The words “the value of such property” does specify it to be earlier to the crime or subsequent and we can insert words “thus value of such property” would mean the property acquired prior or subsequent to the crime.”
It is not that only those properties which have been were derived or obtained directly or indirectly out of the crime can be attached rather in case of non-availability of the property derived or obtained directly or indirectly rather when it is vanished or siphoned off, the attachment can be of any property of equivalent value.
It is necessary to clarify that the proceeds of crime would not only include the property derived or obtained directly or indirectly out of the criminal activity relating to the scheduled offence but any other property of equivalent value. The word “or” has been placed before “the value of any such property” and is of great significance. Any property of equivalent value can be attached when the proceeds directly or indirectly obtained out of the crime has been vanished or siphoned off. Here,the significance would be to the property acquired even prior to commission of crime. It is for the reason that any property acquired subsequent to the commission of crime would be directly or indirectly proceeds of crime and then, it would fall in the first limb of the definition of proceeds of crime. In the second limb, which refers to “the value of any such property” would indicate any other property which was acquired prior to the commission of crime and it would be attached only when the proceeds directly or indirectly obtained or derived out of the criminal activity is not available. It may be on account of siphoning off or vanished by the accused. In those circumstances the property of equivalent value can be attached. The word “the value of any such property” signifies without any embargo that it should be the property purchased after the commission of crime or prior to it rather it would apply in both the eventuality in the given circumstance. Thus, we are not in agreement with the counsel for the appellant who has questioned the attachment in reference to the property acquired prior to commission of crime.
We are not going even further that the properties have nexus with the proceeds out of the crime but even in given circumstances and scenario that the property was acquired prior to commission of crime then, also under certain circumstances, it can be attached for “the value of any such property.”
The issue otherwise has been dealt with by this Tribunal in the case of Ayush Kejriwal (Supra)and the present matter is squarely covered by the aforesaid.
Since, no other issue was raised before us during the course of the arguments, we have discussed the only issue raised before us and decided the same. Finding no merit in any of the issue raised before us, the Appeal would fail and is dismissed.
