Team Code – 131

NATIONAL LAW UNIVERSITY DELHI INTERNAL MOOT COURT COMPETITION, 2017

SUPREME COURT OF INDIA

AT NEW DELHI
IN THE MATTER OF

SPECIAL LEAVE PETITION arising in

SHALINI MUKHERJEE VERSUS UNION OF INDIA

Clubbed with

SHALINI MUKHERJEE & ORS. VERSUS. CBI & ORS.

(Criminal Appeal No. 200 of 2017)

Clubbed with

DIBYOJYOTI BASU VERSUS CBI & ORS.

(Criminal Appeal No. 201 of 2017)

Clubbed with

SHALINI MUKHERJEE VERSUS DIRECTORATE OF ENFORCEMENT & ORS.

(Writ Petition (Civil) No. 130 of 2017)

MEMORIAL FOR THE PETITIONER

 -TABLE OF CONTENTS-

TABLE OF CONTENTS

Title Page
Table of Authorities iv-vi
Table of Abbreviations vii-viii
Statement of Jurisdiction ix
Statement of Facts x-xi
Issues Raised Xii
Summary of Arguments xiii-xiv
Arguments Advanced
I. All the proceedings arising out of O.C. 240/2015 are in violation of the 1-4
Article 20 of the Indian Constitution
A. Provisions under Chapter II and Chapter III of the PML Act are not stand
alone provisions
B. Amendment made to the PML Act is prospective in nature and not
retrospective
II. Section 50 of the PML Act is contrary to Article 20(3) of the Constitution of 5-8
India
A. Immunity is available to the accused of an offence
B. Immunity is available against the compulsion to be a witness
C. Immunity is available against such compulsion resulting in his giving
evidence against himself
III. The Supplementary Report filed against the Private persons by the CBI must 9-13
be rejected as it is bad in law
A. The Investigation lacked legal sanctity due to grave procedural lacunae
B. The evidence collected does not disclose the commission of any offence
or fulfill the essential ingredients of the alleged offences
IV. Supplementary Report filed by the CBI making allegation under section 14-15
13(1)(d)(iii) PC Act in absence of any mens rea, must be set aside as bad in
law
A. The literal interpretation of the statute does not negate its requirement

MEMORIAL FOR PETITIONER ii | P a g e

 -TABLE OF CONTENTS-

B. Strict liability does not further the object of the Statute

V. Cognizance of offences could not be taken in the absence of sanction under 16-17
section 19 of PC Act and section 197 of Cr.P.C.
A. Dibyojyoti was a public servant who could not have been removed
without obtaining the previous sanction from the competent authority
B. The offence alleged was an act done in discharge of official duty
VI. Supplementary Complaint filed before the Ld. Special Court, Delhi was 18-21
illegal and must be set aside as bad in law
A. It is in contravention to Article 21 of the Indian Constitution and does not
follow procedure established by law
B. It does not disclose the essential ingredients of offences U/s Section 3
and 4 of PML Act
Prayer xv

MEMORIAL FOR PETITIONER iii | P a g e

 -TABLE OF AUTHORITIES-

TABLE OF AUTHORITIES

Cases

A.K Gopalan v State of Madras AIR 1950 SC 27. ....................................................................... 18

Amanullah v State of Bihar [MANU/SC/0403/2016]. .................................................................. 10
Amanullah v State of Bihar [MANU/SC/0403/2016]; Parminder Kaur v State of U.P
[MANU/SC/1765/2009] ............................................................................................................ 10
Amrik Singh v. State of Pepsu [AIR 1955 SC 309]....................................................................... 16
Anil Kumar v M.K. Ayyappa [MANU/SC/1002/2013] ................................................................. 16
Arun Kumar Mishra v Directorate of Enforcement, 2015 VAD(Delhi) 353 ............................ 4, 20
Baijnath Gupta v State of Madhya Pradesh [MANU/SC/0081/1965] ......................................... 17
Brend v Wood [(1946) 110 J.P. 317]............................................................................................. 14
Collector of Customs v Calcutta Motor & Cycle Co AIR 1958 Cal 682; Ram Swarup v State AIR
1958 All. 119 ............................................................................................................................... 6
Dinabandhu Bannerjee v Nandini mookherjee [MANU/WB/0292/1993] ................................... 12
Hari Narayan Rai v Union of India & Other, Jhar High Court, [ W.P.(Cr.) No. 325 of 2010]. ... 3
Hemant Dhasman v CBI [MANU/SC/0459/2001] ....................................................................... 10
Indo-China Steam Navigation Co Ltd v Jasjit Singh [MANU/SC/0094/1964] ............................ 12
K T Moopil Nair v State of Kerala, 1961 AIR 552 ......................................................................... 6
Kanaiyalal v Indumati, AIR 1958, SCR 1394 ................................................................................. 1
King Emperor v Benoari Lal Sharma 1945 F.C.R. 161 ............................................................... 18
M.P. Sharma v Satish Chandra, District Magistrate, Delhi & Ors AIR 1954 SC 300 ................. 5
Major B. G. Darsay v The State of Bombay [1961 CriLJ 828] ..................................................... 13
Mangaldas Raghavji Ruparel v The State of Maharashtra and Anr [MANU/SC/0070/1965] .... 14
Matajog Dobey v H.C.Bhari [1956 AIR 44]................................................................................. 17
Mohammad Dastagir v the State of Madras AIR 1960 SC 756 ..................................................... 5
Mrs. Maneka Gandhi v Union of India AIR 1978 SC 597. .......................................................... 18
N.K. Ganguly v CBI [MANU/SC/1326/2015]. ............................................................................. 17
N.K. Ganguly v CBI, New Delhi [MANU/SC/1326/2015] ........................................................... 16
N.K. Ganguly v CBI, New Delhi [MANU/SC/1326/2015]. .......................................................... 16
Nadini Satpathy v P.L. Dani AIR 1978 SC 1025 ....................................................................... 5, 7

MEMORIAL FOR PETITIONER iv | P a g e

 -TABLE OF AUTHORITIES-

Narayan Nambiar v State of Kerala [1963 AIR 1116] ................................................................. 14

Nathulal v State of MP [MANU/SC/0384/1965] .......................................................................... 14
Quinn v Leathem [1901 AC 495] .................................................................................................. 13
R. Balakrishna Pillai v State of Kerala [MANU/SC/0212/2003]................................................. 14
Raja Narayanlal Bansilal v Maneck Phiroz Mistry & Anr. AIR 1961 SC 29 ................................ 6
Rajiv Thapar v Madan Lal Kapoor [(2013) 3 SCC 330] .............................................................. 10
Ram Narayan Popli v Central Bureau of Investigation [2003 (3) SCC 641] ............................... 11
Ravula Hariprasada Rao v The State [MANU/SC/0026/1951] ................................................... 14
Ritesh Agarwal v SEBI, (2008) 8 SCC 205............................................................................... 3, 20
Romesh Chandra Mehta v State of West Bengal, 1970 AIR 940.................................................... 5
Runu Ghosh v CBI [MANU/DE/6909/2011] ................................................................................ 14
S.P. Bhatnagar v State of Maharashtra [MANU/SC/0230/1979]................................................ 14
Saunders v United Kingdom AIR 2010 SC 1974............................................................................ 7
Shiv Bahadur v Vindhya Pradesh, 1953 SCR 1188.................................................................... 1, 3
Shreekantiah Ramayya Munipalli v State of Bombay [AIR 1955 SC 287] ............................ 16, 17
Soni Devrajbhai v State of Gujarat, AIR 1991 SC 2173 ................................................................ 1
State of Andhra Pradesh v Ch. Gandhi (2013) 5 SCC 111 ...................................................... 3, 20
State Of Gujarat v Jaswantlal Nathalal [1968 AIR 700] ............................................................. 11
State of Haryana v Bhajan Lal [MANU/SC/0115/1992] ............................................................. 10
State of Haryana v Ch. Bhajan lal & Ors. AIR 1992 SC 604 ...................................................... 21
State of Himachal Pradesh v Krishna Lal Pradhan [1987 (2) SCC 17] ...................................... 12
State of Karnataka v Selvi J. Jayalalitha [ MANU/SC/0157/2017] ............................................. 17
State of Madhya Pradesh v Sheetla Sahai [MANU/SC/1425/2009] ............................................ 17
State of Maharashtra v K.K. Subramaniam, AIR 1977 SC 2091 ................................................... 1
State Of Maharashtra v Mayer Hans George [1965 AIR 722] .................................................... 14
State of Maharashtra v Mayer Hans George [1965 AIR 722]. .................................................... 15
State of Rajasthan and others v. Gotan LimeStone Khanij Udyog [MANU/SC/0058/2016] ....... 11
Subramaniam Swamy v A. Raja [(2012) 9 SCC 257] ................................................................... 13
Superintendent of Police v Nalini [1999 (5) SCC 253] ................................................................ 12
Tarlochan Dev Sharma v State of Punjab [MANU/SC/1466/2001] ............................................ 15

MEMORIAL FOR PETITIONER v|Page

 -TABLE OF AUTHORITIES-

Tech Mahindra Ltd. v Joint Director of Enforcement, AP High Court, Writ Petition No.
17525/2014 .................................................................................................................................. 4
The State of Bihar v Maharajadhiraja Sir Kameshwar, 1952 1 SCR 889 ..................................... 6
V. Suryanarayhana Prabhakara v Union of India, MANU/AP/0518/2011 ................................... 2
Velji Raghavji Patel v State of Maharashtra [AIR 1965 SC 1433].............................................. 11
Vinay Tyagi v Irshad Ali [MANU / SC / 1101 / 2012] ................................................................. 10
Yashpal Mittal v State of Punjab [1977 (4) SCC 540].................................................................. 13

Statutes

Prevention of Money Laundering Act, 2002 .................................................................................. 1

The Code of Criminal Procedure 1973 ......................................................................................... 11
The Constitution of India,1950 ....................................................................................................... 5

Other Authorities

Halsbury's Laws of England (4th edn ) vol 11 .............................................................................. 13

Law Commission of India Report, 2002 ......................................................................................... 7

Books and Commentaries

GP Singh, Principles of Statutory Interpretation (9th edn, Lexis Nexis 2011)............................ 14

PSA Pillai, Criminal Law (12th edn, Lexis Nexis 2015).............................................................. 11
Russell on crime (12th edn ) vol I ................................................................................................. 13

MEMORIAL FOR PETITIONER vi | P a g e

 -TABLE OF ABBREVIATIONS-

TABLE OF ABBREVIATIONS

¶/¶¶ Para/Paras

AA Adjudicating Authority

AIR All India Reporter

Art. Article

CBI Central Bureau of Investigation

Cr M P Criminal Miscellaneous Petition

CrPC Criminal Procedure Code

DD Deputy Director

ED Enforcement Directorate

HC High Court

IPC Indian Penal Code

Jhar Jharkhand

OC Original Complaint

Ors Others

PAO Provisional Attachment Order

PC Prevention of Corruption

PML Prevention of Money Laundering

Pvt Private

MEMORIAL FOR PETITIONER vii | P a g e

 -TABLE OF ABBREVIATIONS-

QB Queen‟s Bench

RC Regular Complaint

s Section

SC Supreme Court

SCALE Supreme Court Almanac

SCC Supreme Court Cases

SCR Supreme Court Reporter

SLP Special Leave Petition

u/s Under Section

UOI Union of India

USA United States of America

v Versus

MEMORIAL FOR PETITIONER viii | P a g e

 -STATEMENT OF JURISDICTION-

STATEMENT OF JURISDICTION

The private persons along with Shalini Mookherjee and Dibyojyoti Basu had filed two different
Special Leave Petitions under Article 136 before the Hon‟ble Supreme Court. Shalini had also
preferred a writ petition under Article 32 to seek remedy for violation of her fundamental rights.
The Hon‟ble Supreme Court had clubbed all the petitions together due to common questions of
law and fact.

The Petitioners respectfully submit themselves to the jurisdiction of this Hon‟ble Court and shall
accept the judgment of this Court in its entirety, executing it in good faith.

MEMORIAL FOR PETITIONER ix | P a g e

 -STATEMENTS OF FACTS-

STATEMENT OF FACTS

Rise of Gladiator
The return of Shalini Mukherjee to India in 1999 resulted in series of events, bringing fortunes
for her father‟s ailing energy business, M/s Gladiator Pvt. Ltd. She shifted the company‟s focus
from coal-based energy to green fuels. With Shalini‟s demonstration and her father‟s contacts,
Gladiator got required license along with prime real-estate for 2 projects from the communist
Govt. of West Bengal as a part of state‟s „Looking Forward Policy‟ and became the 1 st Private
Player in the field of hydel and air production.

Alliance between Gladiator and Energize India

M/s Energize India Ltd., the Indian subsidiary of global giant M/s Energize Inc [USA] which
wanted to enter India‟s business landscape. After the meetings held among members of State
Govt., managements of Gladiator and Energize USA, Energize India became 100% shareholder
in Gladiator by 31.12.2004. Shalini continued to be remunerated for being an advisor for the next
10 years by Gladiator. She and her family, leaving West Bengal, purchased a bungalow in Delhi,
registered in her name on 01.02.2005.

Change of Political Regime in State of West Bengal

By 2014, the communist govt. was overthrown, making way for new govt. Their leader Pushpa
Didi with an aim to check corruption brought many policies of the previous govt. under scanner.
In that series of events, Dibyojyoti Basu, Secretary, Ministry of tourism, who was an old
communist sympathizer, dared to stop an entourage, which had Pushpa didi‟s family, from
running amok in Sunderbans. The subsequent events unfolded his prior involvement in the
„Looking Forward Policy‟ and granting of licenses to Gladiator when he was joint-secretary in
the Ministry of Power.

The Aftermath
The Chief Minister directed the CBI to look into this matter and a RC was filed on 01.04.2015
u/s 120-B, 420, 467, 467 of IPC and S. 13(2) r/w S. 13(1)(d) of the PC Act against Gladiator and
Unknown Persons in the Ministry of Power. CBI filed a Final Report u/s 173(2) Cr.P.C. on
01.10.2015 before Ld. Metropolitan Magistrate, Kolkata Sessions Court against Shalini.

MEMORIAL FOR PETITIONER x|Page

 -STATEMENTS OF FACTS-

Gladiator, Energize India & Energize USA u/s 406, 420 r/w S.120-B IPC while closure report
was filed with regard to Dibyojyoti. Court directed further investigation against public servants.

PROCEEDINGS UNDER THE PREVENTION OF MONEY LAUNDERING ACT, 2002

 01.11.2015: Deputy Director (DD) of ED passed PAO u/s 5 of PMLA in respect of Shalini‟s
bungalow situated at Delhi as he had reasons to believe it to be proceeds of crime.
 04.11.2015: Summons was issued to her u/s 50 of PMLA.
 10.11.2015: She made her statements under objection before the Deputy Director
 01.12.2015: OC filed before Ld. AA seeking confirmation of PAO as proceeds of crime.
 01.02.2016: Attachment was confirmed by AA resulting in Shalini filing an appeal against
these orders. She also preferred Civil Writ Petiton before Delhi High Court.
 28.02.2016: DD also filed complaint against Shalini, and other private persons before Ld.
Special court, Delhi for offences u/s 3 & 4 of PMLA. No cognizance taken on this date.
MEANWHILE,
 01.03.2016: CBI Filed Supplementary Report u/s. 173(8) Cr.P.C. against Dibyojyoti Basu
and 2 other public servants, alleging them along with all the accused for offences u/s 120-B
r/w S. 420 IPC & 13(1)(d) of PC Act. All proceedings transferred before the Court of Ld.
Special Judge as offences under PC Act were added.
 01.04.2016: Cognizance of all the offences taken by Ld. Special Judge.
 01.07.2016: ED filed Supplementary Complaint against Dibjyoti Basu for offences u/s. 3 & 4
PMLA. Then, Cognizance for these offences was taken by the Ld. Special Court, Delhi.
Proceedings in Kolkata were transferred to Delhi as per law.
THE CURRENT LEGAL BATTLE
Shalini withdrawing her writ petition before Delhi HC, filed Special Leave Petition [SLP] under
Art. 136, and a separate Writ Petition under Art. 32 before the SC. She was joined by other
accused except Energize USA. Dibyojyoti preferred to challenge the proceedings against him
separately.However, the SC granted leave to appeal in SLPs as they are arising out of common
questions of law and fact, and clubbed these petitions together with the Shalini‟s Writ Petition.
Consequently, Criminal Appeal No. 200 of 2017, Criminal Appeal No. 201 of 2017 and Civil
Writ Petition No. 130 of 2017 are presented before 15 judges Constitutional Bench.

MEMORIAL FOR PETITIONER xi | P a g e

 -ISSUES RAISED-

ISSUES RAISED
I.
Whether all the proceedings arising out of O.C. 240/2015 are contrary to Article 20(1) of the
Constitution of India?

II.

Whether section 50 of the PMLA is contrary to Article 20(3) of the Constitution of India?

III.

Whether supplementary report filed by the CBI, making allegations under Sections 406 IPC, and
those of Section 120-B read with 13(1)(d) PC Act against the private persons, must be set aside
as bad in law?

IV.

Whether supplementary report filed by the CBI, making allegations under Section 13(1)(d)(iii)
PC Act in absence of any mens rea, must be set aside as bad in law?

V.

Whether cognizance of offences could not be taken in the absence of prior sanction under
Section 19 PC Act and Section 197 Cr.P.C.?

VI.
Whether the supplementary complaint filed before the Ld. Special Court, Delhi, was
illegal and must be set aside as bad in law?

MEMORIAL FOR PETITIONER xii | P a g e

 -SUMMARY OF ARGUMENTS-

SUMMARY OF ARGUMENTS
I. PROCEEDINGS ARISING OUT OF O.C. 240/2015 ARE IN VIOLATION OF
ARTICLE 20 OF THE INDIAN CONSTITUTION
It is humbly submitted that proceedings arising out of OC 240/2015 are in violation of Article
20(1) of the Indian Constitution. It is argued that attachment of property is based on reason that it
is proceed of crime and proceed of crime as defined under section 2(u) of the PML Act provides
that it must be obtained as a result of a criminal activity pertaining to scheduled offence,
therefore, occurrence of scheduled offence is the fundamental condition for the attachment of
property. In factual matrix, scheduled offence was occurred way before the enforcement of the
PML Act, therefore, it does not attract any application. Consequently proceedings under PML
Act would be in violation of constitutional mandate.

II. SECTION 50 OF THE PMLA IS CONTRARY TO ARTICLE 20(3) OF THE

CONSTITUTION OF INDIA
It is humbly submitted that section 50 of PML Act is unconstitutional on the ground of article
20(3). It is argued that „any person‟ as mentioned in the section 50 is very broad and it covers
within its ambit a person accused of an offence. In the name of doing investigation and collecting
evidence, state cannot force a person to give incriminating evidences against himself which may
be used later on for his prosecution. This clearly is a device to circumvent what cannot be done
directly. Moreover, failure to give information results into prosecution in the legislative scheme
of the PML Act forces a person to be a witness against himself and giving incriminating
evidences which is within the ambit of his personal knowledge.

III. THE SUPPLEMENTARY REPORT FILED AGAINST THE PRIVATE

PERSONS BY THE CBI MUST BE SET ASIDE AS BAD IN LAW.
According to the position of law, the supplementary report is liable to be quashed as it is bad in
law due to serious procedural lacunae and prima facie absence of essential ingredients of the
alleged offences. Further, only private servants can be tried under PC Act, 1988 only when there
is criminal conspiracy to commit an offence under the purview of the act and since there was no
criminal conspiracy, the special judge could not act upon the alleged offences. Therefore the
supplementary report was bad in law and must be set aside.

MEMORIAL FOR PETITIONER xiii | P a g e

 -SUMMARY OF ARGUMENTS-

IV. SUPPLEMENTARY REPORT FILED BY THE CBI, MAKING

ALLEGATIONS UNDER SECTION 13(1)(D)(III) PC ACT IN ABSENCE OF
ANY MENS REA, MUST BE SET ASIDE AS BAD IN LAW
The supplementary report filed by the CBI is bad in law and must be set aside since there was no
mens rea and the offence of criminal misconduct by a public servant, constituted u/s 13(1)(d)(iii),
does not rule out intention to make a person liable. Since there is nothing to show that Dibyojyoti
had the wrong intention while doing his public duty the offence of criminal misconduct does not
apply. Therefore the supplementary report filed must be rejected.

V. COGNIZANCE OF OFFENCES COULD NOT BE TAKEN IN THE ABSENCE

OF SANCTION UNDER SECTION 19 OF THE PC ACT AND SECTION 197
OF THE Cr.P.C.
It is submitted that the Dibyojyoti is a public servant and the offence alleged was an act done in
discharge of his public duty. Therefore previous sanction was required before prosecuting him
under section 19 of the PC Act and the section 197 of Cr.P.C.

VI. THE SUPPLEMENTARY COMPLAINT FILED BEFORE THE LD. SPECIAL

COURT, DELHI, WAS ILLEGAL AND MUST BE SET ASIDE AS BAD IN
LAW
It is submitted that supplementary complaint is illegal and bad in law on both procedural and
substantive counts. It is argued that procedure established by law is not followed in this case as
neither Cr.P.C. nor PML Act provides for the provision of supplementary complaint. Moreover,
the offence for which petitioner is charged has not been made out under section 3 and 4 of the
PML Act as offence was committed earlier the enforcement of the PML Act, therefore, no
ground for initiating proceedings by filing supplementary complaint.

MEMORIAL FOR PETITIONER xiv | P a g e

 -ARGUMENTS ADVANCED-

ARGUMENTS ADVANCED

I. ALL THE PROCEEDINGS ARISING OUT OF O.C. 240/2015 ARE IN VIOLATION

OF ARTICLE 20 OF THE INDIAN CONSTITUTION

It is humbly submitted that to invoke the protection of article 20(1) of the Indian Constitution,
[A] it is necessary to prove that a person is being convicted for an offence for violating a law
which was not in force at the time of commission of such act1, [B] that person is subjected to
greater penalty than what was provided in the statute at the time of commission of such act. 2 In
the first prong of this Article, „offence‟ would mean any act or omission which is made
punishable by any law which is in force.3 And the expression „law in force‟ connotes that law
which exists in fact at the time of commission of the offence.4 The immunity as provided under
this Article is only extended and afforded against punishment by courts for a criminal offence
which is made punishable by enacting an ex-post facto law.5

It is most humbly argued that proceedings arising out of O.C. 240/2015 are in violation of the
express prohibition contained in the Article 20(1) of the Indian Constitution. It is argued that [A.]
provisions under Chapter II and Chapter III of the PMLA Act are not standalone provisions, [B.]
Amendment made to the PMLA Act is prospective in nature and not retrospective.

A. PROVISIONS UNDER CHAPTER II AND CHAPTER III OF THE PMLA ACT ARE
NOT STANDALONE PROVISIONS
It is submitted that section 5 of the PMLA Act requires that the officer who attaches the property
alleged to be proceeds of crime under section 5(1) is supposed to file a complaint before the
Adjudicating authority under section 8 of the PMLA Act. 6 Under section 8, the adjudicating
authority, whom the complaint is filed in relation to attachment of property, if believes that there

1
Kanaiyalal v Indumati, AIR 1958, SCR 1394.
2
State of Maharashtra v K.K. Subramaniam, AIR 1977 SC 2091.
3
Soni Devrajbhai v State of Gujarat, AIR 1991 SC 2173.
4
Shiv Bahadur v Vindhya Pradesh, 1953 SCR 1188.
5
Ibid.
6
Prevention of Money Laundering Act, 2002, Section 8(1).

MEMORIAL FOR PETITIONER 1|Page

 -ARGUMENTS ADVANCED-

exists reasons that any person is in the possession of proceeds of crime7, such adjudicating
authority may reach to a finding that property in question was involved in the offence of money
laundering and can confirm the provisional attachment of the property.8

It is submitted that in the current scheme of legislation, when adjudicating authority confirms the
provisional attachment order on the ground that there exists reason which indicates that property
in question was obtained or derived from the proceeds of crime, such attachment of the property
shall be in operation till the conclusion of proceedings pertaining to the offence of money
laundering.9

„Proceeds of crime‟ has been defined in the PMLA Act as any property which has been obtained
by any person resulting from a criminal activity pertaining to scheduled offence as provided
under the PMLA Act10. Therefore, combined reading of all these provisions would lead to an
inevitable conclusion that property as attached under chapter III should only be that property
which is resulting from a criminal activity pertaining to scheduled offence as provided under the
PMLA Act.11

Thus, in furtherance of the legislative intention12, the commission of scheduled offence is the
fundamental condition for giving rise to any proceedings in relation to attachment of property
alleged to be proceeds of crime. Therefore, once it is shown that no scheduled offence under the
PMLA Act is committed then „proceeds of crime‟ arising from it cannot come into existence,
thus, leading to the conclusion that no proceedings for attachment of property can be attracted.

The fundamental object of the PMLA Act is to prevent and control the offence of money
laundering and to take control over the proceeds of crime.13 Therefore, counsel humbly submits

7
Ibid.
8
Ibid.
9
Prevention of Money Laundering Act, 2002, Section 8(3).
10
Prevention of Money Laundering Act, 2002, Section 2(u).
11
Prevention of Money Laundering Act, 2002, Section 2(u), 5 & 8.
12
Prevention of Money Laundering Act, 2002, Object Clause.
13
V. Suryanarayhana Prabhakara v Union of India, MANU/AP/0518/2011.

MEMORIAL FOR PETITIONER 2|Page

 -ARGUMENTS ADVANCED-

that there exists a difference between money laundering offence and commission of scheduled
offence and for the purposes of PMLA Act, the important consideration to be taken into account
is the date of the offence of money laundering.14 The offence of money laundering pertains to
projection of the proceeds of crime as untainted property, and the origin of proceeds of crime is
the commission of scheduled offence.

Therefore, where commission of money laundering offence takes place before the enforcement
of the Act then in such cases proceedings cannot be attracted under the PMLA Act, otherwise it
would mean the retrospective application of the penal statute which is prohibited within the
ambit of protection afforded under the Article 20(1) of the Indian Constitution.15

B. AMENDMENT TO THE PMLA ACT IS PROSPECTIVE IN NATURE AND NOT

RETROSPECTIVE.
It is most humbly argued that in the current factual matrix, the commission of alleged offence
was not incorporated in the schedule offences at the time of the commission of the same16 and
the proceeds of the same had already been utilized before Feb 2005 therefore, for the sake of
argument also, if we consider that the projection of the proceeds of crime had taken place but
that had also taken place well before the incorporation of the amendment in the PMLA Act.17
The amendment to the PMLA Act done in the year 2009 is prospective in nature as it affects the
substantial rights of the parties18 and it is a settled law that a statute cannot be applied
retrospectively unless the intention of the legislature is explicit in this respect.19

It is humbly submitted that the offence of money laundering requires element of intention on the
part of the accused person, therefore, it has to be seen from the point when such projection of the

14
Hari Narayan Rai v Union of India & Other, Jhar High Court, [ W.P.(Cr.) No. 325 of 2010].
15
Shiv Bahadur, (n 4).
16
Amendment Act, 2009 to PML Act, 2002 added section 120B, Section 420 of IPC and Section 13 of Prevention of
Corruption Act, 1988.
17
Moot Proposition ¶ 4 & 5.
18
State of Andhra Pradesh v Ch. Gandhi (2013) 5 SCC 111.
19
Ritesh Agarwal v SEBI, (2008) 8 SCC 205.

MEMORIAL FOR PETITIONER 3|Page

 -ARGUMENTS ADVANCED-

proceeds of crime as untainted property took place.20 Since the offence for which she is charged
took place well before its incorporation21, therefore, under this act no proceedings can be
initiated, otherwise that would tantamount to application of a criminal law retrospectively.22

20
Arun Kumar Mishra v Directorate of Enforcement, 2015 VAD(Delhi) 353.
21
Moot Proposition ¶ 5.
22
Tech Mahindra Ltd. v Joint Director of Enforcement, AP High Court, Writ Petition No. 17525/2014.

MEMORIAL FOR PETITIONER 4|Page

 -ARGUMENTS ADVANCED-

II. SECTION 50 OF THE PMLA IS CONTRARY TO ARTICLE 20(3) OF THE

CONSTITUTION OF INDIA

Article 20(3) of the Indian Constitution provides that “No person accused of any offence shall be
compelled to be a witness against himself.”23 The immunity under this clause is available, [A.] to
a person who is accused of an offence, [B.] against compulsion to be a witness and [C.] against
such compulsion which results in “incriminating himself".24

The Supreme Court has stated in Mohammad Dastagir v. the State of Madras25 that Art. 20(3)
provides protection to a person against whom a formal accusation is made with regard to
commission of an offence which consequently may lead to his prosecution.26

It is humbly submitted that current scheme of section 50(2) is in contravention to Article 20(3) of
the Constitution of India.

A. ACCUSED OF AN OFFENCE
It is well settled that to invoke protection under this clause, the person has to stand in the
capacity of the accused at the time when he is required to make statements.27 The Supreme Court
has observed that “a formal accusation is deemed to be made” in case where an authority which
is authorized under a statute and is bound to summon a person prior to the filing of complaint,
calls a person for an explanation by serving a formal notice.28 But, in the case of Nandani
Sathpathy, Justice Krishna Iyer observed that „realism should prevail over formalism in cases
where preliminary inquiry is made in a criminal statute is of accusatory in nature and is bound
to result in prosecution when offence alleged is grave and evidence collected good.29 And in such
cases if protection under article 20 is refused to a suspect on the pretext that inquiry is only

23
The Constitution of India,1950, Article 20(3).
24
M.P. Sharma v Satish Chandra, District Magistrate, Delhi & Ors AIR 1954 SC 300.
25
Mohammad Dastagir v the State of Madras AIR 1960 SC 756.
26
Ibid.
27
State of Bombay v Kathi Kalu AIR 1961 SC 1808.
28
Romesh Chandra Mehta v State of West Bengal, 1970 AIR 940.
29
Nadini Satpathy v P.L. Dani AIR 1978 SC 1025.

MEMORIAL FOR PETITIONER 5|Page

 -ARGUMENTS ADVANCED-

preliminary and might not reach to courts then it would essentially be eroding the substance
while pretending to be following verbalism of the article 20(3).30

It is humbly submitted that the PMLA Act uses the word „any person‟ under section 50,
therefore, this broadly worded vague term does not differentiate between the persons who are
accused or witness or suspects of a crime and this is merely a device to do something indirectly
which cannot be done by the state directly.31 Therefore, it is humbly argued that section 50 of
PMLA is a device to take the incriminating evidences indirectly from the accused person on the
pretext that he is not an accused since no formal charges are imposed against him under the
PMLA Act but in reality, he is facing prosecution on substantially the same charges under IPC
proceedings. If this is permitted under the guise of this broadly worded term, then it would be
fraud on the authority of the constitution.32

B. COMPULSION TO BE A WITNESS
Another prerequisite to attract protection under this clause is “compulsion” which as observed by
the Apex Court means “duress which must be proved”33 It covers in its ambit an accused person
where he is issued a notice to produce a document under pain of penalty.34 If a person is bound to
give oral/documentary evidence under provisions of any law or statute, then it will amount to
compelling him to be a witness.35 The immunity under this clause extends to an accused not only
to the testimonial compulsion in the courtroom but also to the compelled testimony which was
obtained from him earlier.36

30
Ibid.
31
K T Moopil Nair v State of Kerala, 1961 AIR 552; The State of Bihar v Maharajadhiraja Sir Kameshwar, 1952 1
SCR 889.
32
Ibid.
33
Kathi Kalu (n 27).
34
Raja Narayanlal Bansilal v Maneck Phiroz Mistry & Anr. AIR 1961 SC 29.
35
Collector of Customs v Calcutta Motor & Cycle Co AIR 1958 Cal 682; Ram Swarup v State AIR 1958 All. 119.
36
MP Sharma (n 24).

MEMORIAL FOR PETITIONER 6|Page

 -ARGUMENTS ADVANCED-

The Supreme Court in State of Bombay v. Kathi Kalu Oghad37 held that “The words “to be a
witness” implies oral as well as written testimony. The compulsory process for the production of
documents or written statement conveying the personal knowledge of the accused person with
regard to the charges leveled against him, violates Art.20(3) of the Constitution, if those
documents/statements are likely to support the prosecution against such person.”

Justice Krishna Iyer observed that any means of pressure, direct or indirect, subtle or crude,
mental or physical, however, adequately substantial which is applied by the policeman to retract
information from an accused, amounts to 'compelled testimony‟.38Frequent threats of
prosecution in case of failure to answer may take on the complexion of undue pressure which
would amount to violate Art. 20(3).39

Therefore, it is humbly argued that „any person‟ may be called by the authorities under S.50 of
PMLA and may be forced them to state the truth involuntarily under the threat of prosecution as
per S. 63 of PMLA in case of her failure to produce statements or giving false statements. This
clearly amounts to compulsion to give evidences against oneself and is violative of Article 20(3).

C. COMPULSION WHICH RESULTS IN SELF-INCRIMINATION

The protection provided by this clause is available from the stage of investigation where a person
can refuse to answer incriminating questions.40 The right against self-incrimination is related
with respecting accused person‟s will to remain silent.41 Law Commission of India also, in its
report suggested that there are various aspects related to Right to Silence which also include right
against self-incrimination where an accused cannot be compelled to be witness against himself.42

37
State of Bombay v Kathi Kalu AIR 1961 SC 1808.
38
Nadini Satpathy v P.L. Dani AIR 1978 SC 1025.
39
Ibid.
40
Nadini Satpathy v P.L. Dani AIR 1978 SC 1025.
41
Saunders v United Kingdom AIR 2010 SC 1974.
42
Law Commission of India Report, 2002, 180th Report.

MEMORIAL FOR PETITIONER 7|Page

 -ARGUMENTS ADVANCED-

This right is available to an accused before and during the trial where he is entitled not to answer
any question which can reasonably result in his prosecution.43

The Supreme Court in State of Bombay v. Kathi Kalu Oghad44 explaining the meaning of “self-
incrimination” observed that:

“Self-incrimination must imply conveying information based upon the personal knowledge of the
person giving such information and cannot just include the mechanical process of producing
documents in Court which may throw a light on any of the points in the controversy, but which
do not contain any statement of the accused based on his personal knowledge.”

It is humbly submitted that in the present case, summons issued to Shalini compelling her to
make statements under section 50 in addition to threat of prosecution under S.63 of PMLA in
case she refuses to give any information will amount to incriminating her not only in the case
filed by CBI but also in leveling charges against her under PMLA. Therefore, it is submitted that
Section 50 is contrary to Article 20(3) of the Constitution of India.

43
Nandani Sathpathy (n 38)
44
State of Bombay v Kathi Kalu AIR 1961 SC 1808.

MEMORIAL FOR PETITIONER 8|Page

 -ARGUMENTS ADVANCED-

III. THE SUPPLEMENTARY REPORT FILED AGAINST THE PRIVATE PERSONS

BY THE CBI MUST BE REJECTED AS IT IS BAD IN LAW.

The CBI had filed a supplementary report which alleged that offences under sec. 13(1)(d) had
been committed by private persons.45 It is submitted that the said supplementary report must be
set aside as bad in law since [A.] first, the further investigation lacked legal sanctity due to grave
procedural lacunae. [B.] Second, the evidence collected does not disclose the commission of any
offence or fulfil the essential ingredients of the alleged offences.

A. THE INVESTIGATION LACKED LEGAL SANCTITY DUE TO GRAVE

PROCEDURAL LACUNAE.
The investigation lacked legal sanctity as [i.] first, the CBI could not have summoned Shalini to
Kolkata. [ii.] Second, the Ld. Metropolitan judge could not have directed further investigation
against the public servants.

i. THE CBI COULD NOT HAVE SUMMONED SHALINI

It is an established principle of law that women cannot be summoned for interrogation 46 at a
place different from their residence as there is threat of torture and coercion to get an unintended
and self-incriminatory statement from them.47 In the present case the CBI served summon upon
Shalini in Delhi and consequently she had to visit the CBI office in Kolkata where she was
interrogated.48 It is submitted that such act on the part of the CBI to ignore the due process of law
led to a violation of justice and hence vitiates the investigation.

ii. THE LD. METROPOLITAN JUDGE COULD NOT HAVE DIRECTED FURTHER
INVESTIGATION AGAINST THE PUBLIC SERVANTS.
A Ld. Metropolitan Judge cannot order the further investigation against a particular person or in
a particular manner under section 156 and section 173(8) of the Cr.P.C.49 The investigating

45
Moot proposition ¶ 21, 22.
46
The Code of Criminal Procedure 1973, s 160(1).
47
Nandini Satpadi v Dani [1978 AIR 1025].
48
Moot Proposition ¶ 10, 11.
49
Tavinder Kaur v State of Haryana [MANU/PH/3130/2011].

MEMORIAL FOR PETITIONER 9|Page

 -ARGUMENTS ADVANCED-

agency can investigate further after filing a closure report under section 173(2) of the Cr.P.C and
this power of the investigating agency can be invoked by a judge by ordering further
investigation but the course of the investigation cannot be dictated by the judge. 50 Only the
investigation agency can decide the course of the investigation on the basis of its finding.51 In the
instant case the judge could not have ordered further investigation52 into the offence against
public servants as this act was beyond his jurisdiction. This direction by the Ld. Court resulted in
biased, pre-meditated and non-independent investigation, which if considered would amount to
violation of the fundamental right of the accused to have a fair and independent investigation53.

B. THE EVIDENCE COLLECTED DOES NOT DISCLOSE THE COMMISSION OF

ANY OFFENCE OR FULFILL THE ESSENTIAL INGREDIENTS OF THE ALLEGED
OFFENCES.
Proceedings can be quashed at a pre-trial stage if the allegations are malafide, frivolous and
vexatious such that all the evidence adduced does not disclose any evidence. 54 In light of
preventing the abuse of process of court and securing the ends of justice such report can be
quashed.55 It is submitted that the supplementary report must be set aside as prima facie [i] first,
there was no criminal breach of trust and [ii] second, the criminal conspiracy is not made out

i. NO CRIMINAL BREACH OF TRUST

Criminal breach of trust is committed when a person or entity entrusted with the „property‟ or
having „dominion‟ over it, dishonestly misappropriates the property to his own use or disposes it
in violation of the of any law or legal contract may it be expressed or implied.56 The offence of

50
Hemant Dhasman v CBI [MANU/SC/0459/2001].
51
Ibid.; Tavinder Kaur v State of Haryana [MANU/PH/3130/2011].
52
Moot proposition ¶13.
53
Vinay Tyagi v Irshad Ali [MANU / SC / 1101 / 2012].
54
State of Haryana v Bhajan Lal [MANU/SC/0115/1992]; Amanullah v State of Bihar [MANU/SC/0403/2016];
Parminder Kaur v State of U.P [MANU/SC/1765/2009].
55
Rajiv Thapar v Madan Lal Kapoor [(2013) 3 SCC 330]; Amanullah v State of Bihar [MANU/SC/0403/2016].
56
The Code of Criminal Procedure 1973, s 405.

MEMORIAL FOR PETITIONER 10 | P a g e

 -ARGUMENTS ADVANCED-

criminal breach of trust has two distinct essential ingredients. These include [a]first,
„entrustment‟ or „dominion‟57 and [b]second, „dishonest misappropriation‟58.

ENTRUSTMENT OR DOMINION
„Entrustment‟ of a particular property is the handing over of a particular property by the owner to
another without there being a change in ownership of the property59 or transfer of proprietary
right.60 „Dominion‟ refers to a control over the property same as that of an owner but not the
ownership.61
A company applying for a license under various statutory schemes of the different statutes
becomes the owner of the said license on being awarded the same. 62 Thus Gladiator could not
have been „entrusted‟ with the licenses since they had become the owners of the same and
entrustment can only be done when a property belongs to someone other than the accused.

DISHONEST MISAPPROPRIATION
„Dishonest Misappropriation‟ is said to be completed when:63

1- Property belonged to another

2- It was misappropriated or converted and put to wrongful use for personal benefit by the
accused, and

3- There was dishonest intention.

There was no misappropriation

57
PSA Pillai, Criminal Law (12th edn, Lexis Nexis 2015) 789.
58
Ibid.
59
State Of Gujarat v Jaswantlal Nathalal [1968 AIR 700].
60
Ram Narayan Popli v Central Bureau of Investigation [2003 (3) SCC 641].
61
Velji Raghavji Patel v State of Maharashtra [AIR 1965 SC 1433].
62
State of Rajasthan and others v. Gotan LimeStone Khanij Udyog [MANU/SC/0058/2016].
63
PSA Pillai, Criminal Law (12th edn, Lexis Nexis 2015) 789; The Code of Criminal Procedure 1973, s 405.

MEMORIAL FOR PETITIONER 11 | P a g e

 -ARGUMENTS ADVANCED-

Misappropriation occurs when there is transition of possession, control or use of property which
is „non-offensive‟ in nature to an „offensive‟ possession, control or use of property. 64 As has
been shown in the aforementioned arguments the property/licenses belonged to Gladiator and
therefore could not have been misappropriated by gladiator itself.

There was no dishonest intention.

Even if it is assumed that there was misappropriation it cannot be said that there was dishonest
intention. Intention has to be determined on the basis of facts and circumstances of the case.65 It
is humbly submitted that there was no interaction between two parties prior to awarding of
licenses and the business deal is an everyday affair of the corporate world. Shalini only sold the
shareholding and assets because she was getting an excellent business deal. There are no facts to
show a dishonest intention on her part.

Hence it is submitted that there is no criminal misappropriation as the neither of the criterion is
satisfied.

In view of the above it is humbly submitted that there was no criminal breach of trust.

ii. THE CRIMINAL CONSPIRACY IS NOT MADE OUT

The offence of criminal conspiracy is not made out as the necessary ingredients of it are not
fulfilled. The offence of criminal conspiracy requires:66

1- Two or more people

2- Prior agreement between the accused.

3- The agreement must be to do or cause to be done an illegal act or legal act by illegal means.

64
Dinabandhu Bannerjee v Nandini mookherjee [MANU/WB/0292/1993].
65
Indo-China Steam Navigation Co Ltd v Jasjit Singh [MANU/SC/0094/1964].
66
State of Himachal Pradesh v Krishna Lal Pradhan [1987 (2) SCC 17]; Superintendent of Police v Nalini [1999 (5)
SCC 253] .

MEMORIAL FOR PETITIONER 12 | P a g e

 -ARGUMENTS ADVANCED-

It is submitted that there was no criminal conspiracy as there was no prior agreement between the
accused to commit an illegal act.

There was no prior agreement between the accused.

The offence of conspiracy is the agreement to achieve a common goal 67 and it is this act of
agreement to realize their unified object which brings the criminal conspiracy into existence. 68 A
business meeting between parties cannot in isolation give rise to a presumption of criminal
conspiracy between them.69 In the instant case there was no prior meeting of mind as the accused
did not even know each other at the time of grant of licenses. The only interaction between the
public servant and private persons was in the form of business meeting. 70 In light of these facts it
is submitted that there was no criminal conspiracy as there was no prior meeting of minds.

67
Major B. G. Darsay v The State of Bombay [1961 CriLJ 828]; Halsbury's Laws of England (4th edn ) vol 11, page
44, page 58; Yashpal Mittal v State of Punjab [1977 (4) SCC 540].
68
Yashpal Mittal v State of Punjab [1977 (4) SCC 540]; Quinn v Leathem [1901 AC 495]; Russell on crime (12th
edn ) vol I, page 202.
69
Subramaniam Swamy v A. Raja [(2012) 9 SCC 257].
70
Moot proposition ¶ 9.

MEMORIAL FOR PETITIONER 13 | P a g e

 -ARGUMENTS ADVANCED-

IV. SUPPLEMENTARY REPORT FILED BY THE CBI, MAKING ALLEGATIONS

UNDER SECTION 13(1)(D)(III) PC ACT IN ABSENCE OF ANY MENS REA, MUST BE
SET ASIDE AS BAD IN LAW.

Mens Rea to do the act alleged is necessary in case of any criminal offence.71 This requirement is
removed only if the language of the statute specifically implies that it was the intention of the
legislators that it be so but in the absence of the same there will be presumption of the
requirement of mens rea.72 An offence is made of strict liability when it can be shown that it will
further the objects of the law.73

It is submitted that mens rea under section 13(1)(d)(iii) is necessary as [i] first, the literal
interpretation of the statute does not negate its requirement. [ii]Secondly, strict liability does not
further the object of the statute.

A. THE LITERAL INTERPRETATION OF THE STATUTE DOES NOT NEGATE ITS

REQUIREMENT.
The Supreme Court while interpreting the provision has laid down that a dishonest motive or
intention is the requirement of the section.74 The word „abuse‟ mentioned in the section 13 of the
PC act has been read as the use of an office for unintended purposes.75 It is necessary to show
that the accused has done an act with a dishonest or corrupt intention.76 This intention is a must
to show that an accused had done something for his own or someone else‟s, pecuniary interest.77

71
Brend v Wood [(1946) 110 J.P. 317]; Indo-China Steam Navigation Co Ltd v Jasjit Singh [MANU/SC/0094/1964].
72
Runu Ghosh v CBI [MANU/DE/6909/2011]; Nathulal v State of MP [MANU/SC/0384/1965]; Mangaldas
Raghavji Ruparel v The State of Maharashtra and Anr [MANU/SC/0070/1965]; Ravula Hariprasada Rao v The
State [MANU/SC/0026/1951].
73
GP Singh, Principles of Statutory Interpretation (9th edn, Lexis Nexis 2011) 779 880; State Of Maharashtra v
Mayer Hans George [1965 AIR 722]; Runu Ghosh (n 72).
74
Runu Ghosh (n 72).
75
Narayan Nambiar v State of Kerala [1963 AIR 1116].
76
S.P. Bhatnagar v State of Maharashtra [MANU/SC/0230/1979].
77
R. Balakrishna Pillai v State of Kerala [MANU/SC/0212/2003]; Nathulal (n 70).

MEMORIAL FOR PETITIONER 14 | P a g e

 -ARGUMENTS ADVANCED-

At no point does the statute categorically deny the requirement of mens rea and hence mens rea
is required.

An erroneous but honest use of power will not be considered an abuse of office. 78 It is submitted
that Dibyojyoti merely did what he was supposed to do as his public duty and helped the
government in the process.

B. STRICT LIABILITY DOES NOT FURTHER THE OBJECT OF THE STATUTE.

Strict liability can be imposed on a grave social evil if it can be shown that the same will help in
the enforcement of the law but not just result in catching an innocent person. 79 A social
legislation itself does not mandate strict liability and it needs to be shown that without strict
liability the object of the legislation will be defeated.80 It is submitted that making the offence
under section 13(d)(iii) strictly liable does not serve any purpose but rather creates a bigger
problem. If the provision is interpreted strictly, public servants will be afraid to work for the fear
of being imposed with liability if something goes wrong in the future. This will defeat the
objective of the provision which is only to prevent corruption and not paralyze the public
servants with the fear of prosecution.

78
Tarlochan Dev Sharma v State of Punjab [MANU/SC/1466/2001].
79
State of Maharashtra v Mayer Hans George [1965 AIR 722].
80
Nathulal (n 70).

MEMORIAL FOR PETITIONER 15 | P a g e

 -ARGUMENTS ADVANCED-

V. COGNIZANCE OF OFFENCES COULD NOT BE TAKEN IN THE ABSENCE OF

SANCTION UNDER SECTION 19 OF PC ACT AND SECTION 197 OF CR.P.C.

No cognizance of the offences can be taken when the accused is a public servant unless as
previous sanction is obtained.81 A judge is barred from taking cognizance as per section 19 of the
PC Act and Section 197 of the Cr.P.C in the absence of a previous sanction from the relevant
authority.82

It is submitted that the accused Dibyojyoti Basu was a public servant as he was under the
employment of the state government of West Bengal during the period of the alleged offence83
and hence the cognizance of any offence against him could not have been taken without the
previous sanction of the government. The necessary ingredients to be fulfilled for bringing the
offence under the purview of these two sections include:

1- The post of the accused is or was of a public servant who cannot be removed without previous
sanction.

2- The offence alleged was done in discharge of duty.84

The counsel submits the [A] first, Dibyojyoti was a public servant who could not have been
removed without obtaining previous sanction from the competent authority. [b] Secondly, the
offence alleged was an act done in discharge of duty.

A. DIBYOJYOTI WAS A PUBLIC SERVANT WHO COULD NOT HAVE BEEN

REMOVED WITHOUT OBTAINING PREVIOUS SANCTION FROM THE
COMPETENT AUTHORITY.
A „public servant‟ is anyone who is remunerated by the government for the performance of his
duty owed to the public.85 The definition of public servants should not to be restricted and must

81
Shreekantiah Ramayya Munipalli v State of Bombay [AIR 1955 SC 287]; Amrik Singh v. State of Pepsu [AIR
1955 SC 309].
82
Anil Kumar v M.K. Ayyappa [MANU/SC/1002/2013]; N.K. Ganguly v CBI, New Delhi [MANU/SC/1326/2015].
83
Moot Proposition ¶ 9.
84
N.K. Ganguly v CBI, New Delhi [MANU/SC/1326/2015].
85
Indian Penal Code 1860, s 21.

MEMORIAL FOR PETITIONER 16 | P a g e

 -ARGUMENTS ADVANCED-

be taken in a wide sense.86 Dibyojyoti was a public servant at the time of the commission of the
alleged offence as he was a Joint Secretary in the Ministry of Power under the state government
of West Bengal.87 His post was such that he could only have been removed from office after
obtaining sanction of the government. Thus it is submitted that he could not have been
prosecuted without previous sanction from the government.

B. OFFENCE ALLEGED WAS AN ACT DONE IN DISCHARGE OF OFFICIAL DUTY.

Sanction is required for an act which is inseparable from the duty of the public servant.88 If the
accused was able to do an act only because he was a public servant then it can be said that the act
was done in discharge of official duty.89 If the act had been entirely unconnected to the duty of
the accused then there would have been no need for the sanction.90 In the case of N.K Ganguly v
CBI91, the Supreme Court stated that if a public servant who was authorized to sell a property
sells the same at a price lower than the market rate then this act of his is done in discharge of
public duty and a previous sanction would be required to prosecute him. In such situations the
act of the accused has to be examined with respect to his public duty. 92 In the instant case, the
alleged act could not have been committed by Dibyojyoti had he not been a public servant
authorized to allocate lands and award licenses.

In light of these facts it is submitted that the accused was a public servant who was only
discharging his public duty and hence the judge could not have taken cognizance of offences
against him without obtaining previous sanction form the government.

86
State of Karnataka v Selvi J. Jayalalitha [ MANU/SC/0157/2017].
87
Moot proposition ¶ 9.
88
Matajog Dobey v H.C.Bhari [1956 AIR 44]; State of Madhya Pradesh v Sheetla Sahai [MANU/SC/1425/2009].
89
Matajog Dobey v H.C.Bhari [1956 AIR 44]; State of Madhya Pradesh v Sheetla Sahai [MANU/SC/1425/2009].
90
Baijnath Gupta v State of Madhya Pradesh [MANU/SC/0081/1965].
91
N.K. Ganguly v CBI [MANU/SC/1326/2015].
92
Shreekantiah Ramayya Munipalli v State of Bombay [AIR 1955 SC 287]

MEMORIAL FOR PETITIONER 17 | P a g e

 -ARGUMENTS ADVANCED-

VI. THE SUPPLEMENTARY COMPLAINT FILED BEFORE THE LD. SPECIAL

COURT, DELHI, WAS ILLEGAL AND MUST BE SET ASIDE AS BAD IN LAW

It is submitted that the supplementary complaint which was filed before the Ld. Special Court,
Delhi was illegal and must be set aside as bad in law on the following grounds: [A] firstly, it is
in contravention to Article 21 of the Indian Constitution as the investigation which was
undertaken does not follow procedure established by law. [B] Secondly, it does not disclose the
essential ingredients of offence u/s. 3 & 4 of PMLA.

A. IT IS IN CONTRAVENTION TO ART. 21 OF THE INDIAN CONSTITUTION AND

DOES NOT FOLLOW PROCEDURE ESTABLISHED BY LAW
Article 21 of the Constitution of India provides that “No person shall be deprived of his life or
personal liberty except according to the procedure established by law”.93 The phrase “procedure
established by law” means procedure established by law i.e. enacted either by Parliament or State
Legislature.94 The Supreme Court has observed that „procedure established by law‟ may also
imply ordinary well-established criminal procedure which means settled and established modes
of proceedings authorized by the Criminal Procedure Code i.e. the general legislation of criminal
procedure followed in India.95

The procedure established by law should be just, fair and reasonable instead of being arbitrary,
oppressive or fanciful.96 It is submitted by the counsel that in the present case, the procedure
established by the law was not followed while filing supplementary complaint before the Ld.
Special Court, Delhi. Neither the scheme of the Code of Criminal Procedure, 1973 [herein after
Cr.P.C.] nor the Prevention of Money Laundering Act, 2002 envisage the provision of
“Supplementary Complaint”.

93
The Constitution of India, Article 21.
94
A.K Gopalan v State of Madras AIR 1950 SC 27.
95
A.K Gopalan v State of Madras AIR 1950 SC 27; King Emperor v Benoari Lal Sharma 1945 F.C.R. 161.
96
Mrs. Maneka Gandhi v Union of India AIR 1978 SC 597.

MEMORIAL FOR PETITIONER 18 | P a g e

 -ARGUMENTS ADVANCED-

i. PROCEDURE ESTABLISHED UNDER CR.P.C.

The Criminal Procedure Code only allows for „Supplementary Report‟ under S. 173(8) and not
„supplementary complaint‟. „Complaint‟ under Cr.P.C. is defined as accusations, either made in
writing or orally to a Magistrate, with view that the Magistrate takes an action, that some known
or unknown person has committed an offence, however, it does not include police report in its
ambit.97 This clearly indicates that complaint is different from police report. Therefore, it is
submitted that the Criminal Procedure Code of the country does not warrants for „supplementary
complaint.‟

ii. PROCEDURE ESTABLISHED UNDER PMLA

S.44 (1)(b) of PMLA entitles Special Court for taking cognizance of the offence u/s. 3 when a
complaint is made by authority who is authorized to do so under the said Act.98 In addition to it,
it is also provided that a complaint made to the Special Court for taking cognizance of offence
u/s. 4 shall be in writing.99 Therefore, it is submitted that by incorporating the words „a
complaint‟, it appears that the legislature never envisaged of having more than one complaint or
supplementary complaint under the scheme of this Act.

Therefore, on the basis of the above contentions, it is submitted that the Supplementary
Complaint filed before the Ld. Special Court violates Article 21 of the Indian Constitution as it
does not follow the procedure established by law.

B. THE COMPLAINT DOES NOT DISCLOSE THE ESSENTIAL INGREDIENTS OF

THE OFFENCE UNDER S.3 AND 4 OF PMLA.
It is submitted that the supplementary complaint filed before Ld. Special Judge does not disclose
ingredients of offence under S.3 and 4 of PMLA.

S.3 of PMLA defines offence of money laundering for which it has to be established that there is
some direct or indirect involvement of the accused in any process or activity connected with

97
The Criminal Procedure Code, 1973, Section 2 (d).
98
The Prevention of Money Laundering Act, 2002, Section 44(1)(b).
99
The Prevention of Money Laundering Act, 2002, Section 45 Proviso.

MEMORIAL FOR PETITIONER 19 | P a g e

 -ARGUMENTS ADVANCED-

proceeds of crime.100 „Proceeds of crime‟ has been defined in the PML Act as any property
which has been obtained by any person resulting from a criminal activity pertaining to scheduled
offence as provided under the PML Act.101 Therefore, offence of money laundering pertains to
projection of the proceeds of crime as an untainted property, and the origin of proceeds of crime
is the commission of scheduled offence. It is submitted that the petitioner has been falsely
implicated for the charges under S.13 (1)(d) of the Prevention of Corruption Act [hereinafter, PC
Act] on the basis of which cognizance of offence u/s.3 of PMLA has been taken,102 however, S.
13 of the PC Act was added as a scheduled offence under PML only by virtue of the amendment
in 2009. Therefore, even if the petitioner is said to be involved in projection of proceeds of
crime, it cannot be said that it is resulting from a criminal activity relating to a scheduled
offence.

Moreover, the amendment to the PML Act done in the year 2009 by virtue of which S. 13 of the
PC Act was added as a scheduled offence is prospective in nature as it affects the substantial
rights of the parties103 and it is well-settled that a statute affecting substantive rights cannot be
applied retrospectively unless the intention of the legislature is explicit in this respect. 104 It is
further submitted that the offence of money laundering requires intention on part of the accused,
therefore, it has to be seen from the point when such projection of the proceeds of crime as
untainted property took place.105

Therefore, the counsel submits that since the supplementary complaint does not disclose
essential ingredients of offence committed by the petitioner under S.3 and 4 of PMLA, and when
the accusations made in the complaint does not prima facie constitute any offence, then

100
The Prevention of Money Laundering Act, 2002, Section 3.
101
Prevention of Money Laundering Act, 2002, Section 2(u).
102
Moot Proposition ¶ 21.
103
State of Andhra Pradesh v Ch. Gandhi (2013) 5 SCC 111.
104
Ritesh Agarwal v SEBI, (2008) 8 SCC 205.
105
Arun Kumar Mishra v Directorate of Enforcement, 2015 VAD(Delhi) 353.

MEMORIAL FOR PETITIONER 20 | P a g e

 -ARGUMENTS ADVANCED-

proceedings against the petitioner instituted in furtherance of the supplementary complaint

should be quashed.106

106
State of Haryana v Ch. Bhajan lal & Ors. AIR 1992 SC 604.

MEMORIAL FOR PETITIONER 21 | P a g e

 -PRAYER-

PRAYER

In light of the submissions made, facts explained, arguments given for issues raised and
authorities cited for substantiation, may it please this Hon‟ble Court to:

A. DECLARE that all the proceedings arising from the O.C. 240/2015 are inconsistent with
Article 20(1) the Constitution of India.
B. HOLD that Section 50 of PMLA violates the Article 20(3) of the Constitution.
C. QUASH the Supplementary Report filed by the CBI.
D. HOLD that the Cognizance of offences against the public servants could not have been taken
in the absence of previous sanction.
E. QUASH the Supplementary Complaint filed by the Enforcement Directorate.

AND/OR

Pass any other order, which the Hon’ble Court finds in the interest of justice, equity and
good conscience.

All of which is most respectfully submitted.

Counsels for Petitioners

MEMORIAL FOR PETITIONER xv | P a g e