ED's power confined to probe money laundering offence, can't assume predicate offence committed: HC
New Delhi (PTI): The Delhi High Court has held that the Enforcement Directorate (ED) has the power to investigate and inquire into an offence of money laundering under the Prevention of Money Laundering Act (PMLA) only and it cannot assume that a predicate offence has been committed.
The high court said the predicate offence has to be necessarily investigated and tried by the authorities empowered by law in that regard and the ED cannot possibly arrogate unto itself the power to investigate into the alleged commission of those offences.
"What needs to be emphasised is that the PMLA empowers the ED to investigate Section 3 offences only. Its power to investigate and enquire stands confined to the offence of money laundering as defined in that section. However, the same cannot be read as enabling it to assume from the material, that it may gather in the course of that investigation, that a predicate offence stands committed.
"The predicate offence has to be necessarily investigated and tried by the authorities empowered by law in that regard," Justice Yashwant Varma said in a 111-page judgement passed on January 24.
The high court said, "The primary function to investigate and try such offences remains and vests in authorities constituted under those independent statutes In any case, it (ED) cannot and on its own motion proceed on the surmise that a particular set of facts evidence the commission of a scheduled offence and based on that opinion initiate action under the PMLA."
It said if in the course of its enquiry and investigation, ED was to come to the conclusion that the material in its possession evidences the commission of an offence created under any other enactment, it would be obliged to furnish requisite information in respect thereof to the agency concerned for necessary action.
The high court's verdict came while allowing two separate petitions filed by Prakash Industries Limited and Prakash Thermal Power Limited challenging the Provisional Attachment Orders (PAO) issued by the ED on November 29, 2018.
The proceedings drawn by the ED emanate from an allocation of the Fatehpur Coal Block in Chhattisgarh.
It was alleged that the two companies misrepresented their net worth to procure coal block. An FIR was lodged by the CBI under the provisions of the Indian Penal Code and Prevention of Corruption Act. Based on the FIR, the ED registered an Enforcement Case Information Report on the allegations relating to share price manipulation and generation of proceeds of crime from such activities.
Later, the allocation of coal block was cancelled following the Supreme Court's judgement in 2014.
The high court quashed the November 29, 2018 PAO as well as the original complaint. It also dealt with the objection raised by ED counsel that in view of the directions of the Supreme Court, the high court would not be permissible to either entertain these petitions or take cognisance of the challenged raised.
The ED counsel referred to the July 25, 2014 order passed by the apex court in the coal block allocation matter in which was held that any prayer for stay or any order impeding the progress of investigation relating to coal block allocations would be liable to be placed before the special court only and that no other court could entertain the same.
The high court, however, said it was unable to accede to the preliminary objection raised by ED and said the special court which came to be constituted was so identified solely to deal with and exclusively try offences emanating from coal block allocations and for the trial of offences that may have been alleged to have been committed either under the IPC, PC Act and PMLA.
"The direction for transfer of pending cases also clearly appears to be confined to criminal matters arising out of coal block allocations," it said, adding that those directions cannot possibly be construed or interpreted as extending to PAOs that may be made under PMLA.
Justice Varma said the special judge constituted to try criminal cases and offences would clearly lack the authority to either deal with or rule upon the validity of PAOs that may be made.
"If the submission addressed by and on behalf of the ED in this regard were be accepted, it would also amount to short circuiting the adjudicatory mechanism with respect to attachment orders as structured and placed in terms of the provision of the Act," the high court said.
It said the apex court's directions cannot be construed as denuding the high court of the jurisdiction to entertain a challenge relating to a PAO and the exercise of power by the ED under Section 5 of the PMLA.
If the submissions of ED are accepted, it would essentially amount to recognising a power inhering in the special judge to not only don the robes of the adjudicating authority but to also deprive the appellate forums of the jurisdiction to decide appeals against the orders that may ultimately come to be passed under section 8 of the PMLA.
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4 children test HIV positive in MP govt hospital; contaminated blood transfusion suspected
Satna/Bhopal (PTI): Four children suffering from thalassemia have tested HIV positive at Satna District Hospital in Madhya Pradesh allegedly due to contaminated blood transfusions, officials said on Tuesday.
The case is four months old and an investigation is underway into it, an official said.
Officials suspect the use of contaminated needles or blood transfusions for the spread of infection to the children.
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MP Health Minister Rajendra Shukla told reporters in Bhopal that he has ordered a probe into the matter and sought a report.
“It is also being investigated whether the blood transfusion took place in other hospitals also or only in the government hospital,” he said.
The affected children, aged between 12 and 15 years, received blood transfusions from the hospital's blood bank, as per an official.
Devendra Patel, in-charge of the blood bank at Sardar Vallabhbhai Patel District Hospital in Satna, said four children have tested HIV positive and an investigation is underway to determine how they got infected.
"Either an infected needle was used or a blood transfusion occurred. These are the two main reasons I believe. Blood transfusion seems to be the most likely cause," he told PTI Videos.
All these children suffer from thalassemia, and some have received 80 or 100 blood transfusions, he said.
A family member of one of the affected children said that their child was found to be HIV positive during a routine checkup about four months back, and he has been receiving medication, but it had proven to be of no use.
After taking the medication for HIV, the child starts vomiting, feels low and becomes ill, he said.
After the four children were detected with HIV infection, their family members were also tested and the results came out negative, he added.
The Opposition Congress targeted the government over the matter and demanded the resignation of Health Minister Shukla.
Speaking to reporters in Bhopal, Congress MLA and former minister Sachin Yadav claimed such incidents were continuously occurring in Madhya Pradesh.
Earlier, a case of toxic cough syrup came to light in Chhindwara, followed by incidents of rat bites at hospitals in Indore and Satna, and now children have been given HIV-infected blood, he said.
"The health minister is unable to manage the department. He should resign. A murder case should be filed against those responsible for the Satna incident," Yadav said.
Senior Congress leader Sajjan Singh Verma termed it a failure of the government. Chief Minister Mohan Yadav's government has no connection with ground realities, he charged.
"Somewhere rats are roaming in hospitals, somewhere children are being given HIV-infected blood. Instead of preventing HIV, you are spreading it. Mohan Yadav should wake up from his slumber. Children are the nation's heritage and should be taken care of," he added.
