Karnataka Congress leader D K Shivakumar on Thursday told the Delhi High Court that a money laundering probe initiated against him following a case of disproportionate assets cannot be sustained, and accused the Enforcement Directorate of taking action after waiting for two years because of the upcoming state assembly elections in May.
Senior advocate Kapil Sibal, appearing for Shivakumar, argued there was neither any attachment of property in the case nor any proceeds of crime in terms of the Prevention of Money Laundering Act. “Why have they waited for two years to proceed in the matter? They knew of these facts in 2020…. Because the elections are in May. I can understand if there was some activity I was indulging in and it needed to be heard today and therefore this matter has to be decided,” Sibal argued before a bench of Justice Mukta Gupta and Poonam A Bamba.
When additional solicitor general SV Raju dubbed the submission as “unfounded”, Sibal retorted saying it was “derivative logic”.
“I am only stating a fact. Rest is derivative logic,” he said.
The court was hearing Shivakumar’s petition seeking quashing of the entire investigation including summons issued to him in the (Enforcement Case Information Record) ECIR registered by the ED in 2020. He has contested the ED’s action on several grounds including that the agency was re-investigating the same offence which it had already probed in a previous case it had lodged in 2018.
The court said it was “hearing the matter finally” instead of first dealing with the issue of interim relief. Shivakumar has sought protection from coercive action as an interim relief.
In its submissions filed through lawyers Mayank Jain, Parmatma Singh and Madhur Jain, the Congress leader said the present investigation constituted a second set of proceedings against him, and was an abuse of the process of law and a malafide exercise of power.
The ED has opposed the petition claiming the two ECIRs lodged by the anti-money laundering agency pertain to different cases with certain overlapping of facts which cannot be termed as re-investigation. The ED has said in its counter affidavit that the two ECIRs against the petitioner are based on different set of facts and even the scheduled offence in both the cases are different and the quantum of proceeds of crime involved is also different.
“…the allegation made in the complaint of the Income Tax department and FIR of CBI depict different modes of generation of the crime proceeds and that role of different accused persons may come into light, thus the petitioner cannot claim that he has already been investigated of the same offence,” the affidavit has said.
The ED, in its reply, said that as per the first ECIR, the scheduled offence is section 120B IPC and the quantum of proceeds of crime recorded therein is Rs 8.59 crore.
The present ECIR is related to amassing disproportionate assets to the tune of Rs 74.93 crore and emanates from a different FIR of the CBI lodged in Bangalore on October 3, 2020 under the Prevention of Corruption Act, it has stated.
It said on the basis of preliminary enquiry done by the CBI, ACB, Bangalore, it was found that Shivakumar and his family are in possession of assets disproportionate to their known sources of income during the check period April 1, 2013 to April 30, 2018.
The ED affidavit added it is well settled that at the stage of investigation it is premature to take the plea of double jeopardy and that it is wholly impermissible in a petition challenging the constitutional validity of certain provisions of the special act to pass the interim orders in the nature of final anticipatory bail.
In jurisprudence, double jeopardy is a procedural defence that prevents an accused from being tried again on the same charges after conviction or acquittal.
Shivakumar had earlier argued there can be no case for the offence of money laundering on allegations of disproportionate assets.
In the plea, the Congress leader has submitted the second set of proceedings is a “complete abuse of process of law and malafide exercise of powers”. He said the proceedings also violate the constitutional provisions related to double jeopardy.
“The entire aspect of disproportionate assets allegedly acquired by the petitioner when he was minister/MLA in the state of Karnataka was thoroughly investigated by the respondent in the first ECIR and thus, the initiation of separate proceedings on the same set of facts and ingredients of the offence is impermissible in law and amounts to malafide exercise of power by the respondent,” the plea has said.
The commencement of fresh proceedings under the PMLA on identical facts and covering the same period is “directly infringing the rights guaranteed under the Constitution more particularly Article 20(2) and Article 21…”, the plea has added.
“Furthermore, the inclusion of Section 13 of the Prevention of Corruption Act in the Schedule of PMLA is ultra vires the Constitution as the ingredients of the offence under the said provision is same as the ingredients required to attract the offence under Section 3 of the PMLA,” it stated.
The plea said Section 13 of the Prevention of Corruption Act is a complete code which envisages the aspect of laundering of ill-gotten wealth by a public servant in the form of assets and there cannot be any further activity of laundering the proceeds again.
It is also alleged that the Delhi office of ED has no territorial jurisdiction to conduct the present investigation and summon the petitioner who is a permanent resident of Bengaluru.
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