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The PMLA Act and the Poaching Syndrome

The PMLA Act and the Poaching Syndrome:

  1. In this article "We The People" are going the explore, whether there is mere poaching, or something more involved in the much discussed PMLA Poaching. And at the end, question ourselves.
  2. In this regard 1st we need to understand the basic provisions of PMLA

Section 2(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;

Section 3: Offence of money-laundering:

Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money-laundering.

Explanation.: For the removal of doubts, it is hereby clarified that:
  1. a person shall be guilty of offence of money-laundering if such person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with proceeds of crime, namely:
    1. concealment; or
    2. possession; or
    3. acquisition; or
    4.  projecting as untainted property; or
    5. use; or
    6. claiming as untainted property, in any manner whatsoever;
  2. the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever.

24. Burden of proof.: In any proceeding relating to proceeds of crime under this Act:

  1. In the case of a person charged with the offence of money-laundering under section 3, the Authority or Court shall, unless the contrary is proved, presume that such proceeds of crime are involved in money-laundering; and
  2. In the case of any other person the Authority or Court, may presume that such proceeds of crime are involved in money-laundering.
Section 45 -Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence under this Act shall be released on bail or on his own bond unless - �..the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence��.

3. In this back ground, and as per the law laid by the Reference Bench of the Honble Supreme Court in Vijay Madanlal Chaudary vs UOI, it is clear that the person against whom investigation is started is deemed guilty unless he is acquittal by the Special Court.

4. Poaching Definition

As per Blacks Law Dictionary
POACHING poaching, n. The illegal taking or killing of fish or game on another's land. [Cases: Fish 13(1); Game 7.] - poach,vb

As per Mariam Webster - to encroach upon especially for the purpose of taking something

5. Lets explore very deep meaning/s involved.

6. 1st lets take the terminology of: 'Concealment' as is used in section 3 of PMLA, for which we need to see the Definition in Blacks Law Dictionary

CONCEALMENT - concealment, n.
  1. The act of refraining from disclosure; esp., an act by which one prevents or hinders the discovery of something; a cover-up.
  2. The act of removing from sight or notice; hiding.
  3. Insurance. The insured's intentional withholding from the insurer material facts that increase the insurer's risk and that in good faith ought to be disclosed. Cf.
 NONDISCLOSURE. [Cases: Insurance 2961. C.J.S. Insurance �� 538, 591�593, 693, 701, 757, 771, 774.] - conceal,vb. "Concealment is an affirmative act intended or known to be likely to keep another from learning of a fact of which he would otherwise have learned. Such affirmative action is always equivalent to a misrepresentation and has an effect that a misrepresentation would have ...." Restatement (Second) of Contracts � 160 cmt. a (1979).

Active concealment. The concealment by words or acts of something that one has a duty to reveal. [Cases: Fraud 16.]

Fraudulent concealment. The affirmative suppression or hiding, with the intent to deceive or defraud, of a material fact or circumstance that one is legally (or, sometimes, morally) bound to reveal. - Also termed hidden fraud. [Cases: Fraud 16.]

Passive concealment. The act of maintaining silence when one has a duty to speak. [Cases: Fraud 16.]

Concealment rule. The principle that a defendant's conduct that hinders or prevents a plaintiff from discovering the existence of a claim tolls the statute of limitations until the plaintiff discovers or should have discovered the claim. - Also termed fraudulent-concealment rule. [Cases: Limitation of Actions 104.]

7. It is necessary to understand meaning of some more words.: Screening: In terms of any offence of PMLA, it means: 'preventing detection'. This is the same meaning as the above definition of 'concealment' as above.

8. Before we proceed: its worth mentioning that, it is not the primary offender I am referring to, but the offender who abets, conspires, using corrupt practices; and harboring with knowledge, that it would amount to concealment and more.

9. In this background: lets understand the very important definition: Gratification: As per the law laid by the Hon'ble Supreme Court in AIR 2007 SC 1247, AIR 2004 SC 960, AIR 2004 SC 2042, AIR 2004 SC 1242, (2000) 8 SCC 571, AIR 1976 SC 27, AIR 1973 SC 28, AIR 1964 SC 575, - gratification cannot be confined to only to payment of money, and includes pleasure, satisfaction, material advantage, or forbearing to do official act, and the wider Oxford Dictionary meaning is applied.

10. Here come the modus of committing the offence of corrupt concealment. IPC offences

52A - the term "Harbour" means helping the person by providing shelter, food, money, drink, arms, ammunition, or assisting the person by any means. Except, IPC Sections 130 & 157 in which the harbor is given by the wife or husband of the aggrieved person.

212. Harbouring offender:
Whenever an offence has been committed, whoever harbours or conceals a person whom he knows or has reason to believe to be the offender, with the intention of screening him from legal punishment;

213. Taking gift, etc., to screen an offender from punishment.-Whoever accepts or attempts to obtain, or agrees to accept, any gratification for himself or any other person, or any restitution of property to himself or any other person, in consideration of his concealing an offence or of his screening any person from legal punishment for any offence, or of his not proceeding against any person for the purpose of bringing him to legal punishment,

214 -Offering gift or restoration of property in consideration of screening offender.-Whoever gives or causes, or offers or agrees to give or cause, any gratification to any person, or restores or causes the restoration of any property to any person, in consideration of that person's concealing an offence, or of his screening any person from legal punishment for any offence, or of his not proceeding against any person for the purpose of bringing him to legal punishment;

171B- 71B. Bribery.
  1. Whoever
    1. gives a gratification to any person with the object of induc�ing him or any other person to exercise any electoral right or of rewarding any person for having exercised any such right; or
    2. accepts either for himself or for any other person any gratification as a reward for exercising any such right or for inducing or attempting to induce any other person to exercise any such right; commits the offence of bribery:

      Provided that a declaration of public policy or a promise of public action shall not be an offence under this section.
  2. A person who offers, or agrees to give, or offers or attempts to procure, a gratification shall be deemed to give a gratifica�tion.
  3. A person who obtains or agrees to accept or attempts to obtain a gratification shall be deemed to accept a gratification, and a person who accepts a gratification as a motive for doing what he does not intend to do, or as a reward for doing what he has not done, shall be deemed to have accepted the gratification as a reward.

107 - Abetment of a thing.-A person abets the doing of a thing, who:
  1. Instigates any person to do that thing; or
  2. Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or
  3. Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1.: A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to dis�close, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

11. Lets see the provisions of Representation of Peoples Act

123. Corrupt practices.-The following shall be deemed to be corrupt practices for the purposes of this Act:
  1. "Bribery", that is to say:
    1. any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing:
      1. a person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate at an election, or
      2. an elector to vote or refrain from voting at an election, or as a reward to:
        1. a person for having so stood or not stood, or for 3[having withdrawn or not having withdrawn his candidature; or
        2. an elector for having voted or refrained from voting;
    2. the receipt of, or agreement to receive, any gratification, whether as a motive or a reward:
      1. by a person for standing or not standing as, or for withdrawing or not withdrawing from being, a candidate; or
      2. by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate 2[to withdraw or not to withdraw] his candidature.
      Explanation: For the purposes of this clause the term "gratification" is not restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bona fide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in section 78.

(7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the consent of a candidate or his election agent, any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election, from any person in the service of the Government and belonging to any of the following classes, namely:
  1. gazetted officers;
  2. stipendiary judges and magistrates;
  3. members of the armed forces of the Union;
  4. members of the police forces;
  5. excise officers;
  6. revenue officers other than village revenue officers known as lambardars, malguzars, patels, deshmukhs or by any other name, whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions; and
  7. such other class of persons in the service of the Government as may be prescribed:
Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid, in the discharge or purported discharge of his official duty, makes any arrangements or provides any facilities or does any other act or thing, for, to, or in relation to, any candidate or his agent or any other person acting with the consent of the candidate or his election agent (whether by reason of the office held by the candidate or for any other reason), such arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate's election.

12. Lets go to Prevention of Corruption Act
2'(d) "undue advantage" means any gratification whatever, other than legal remuneration.

Explanation.-For the purposes of this clause,-
(a) the word "gratification" is not limited to pecuniary gratifications or to gratifications estimable in money;

Section 7 - Any public servant who,
  1. obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or
  2. obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or
  3. performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine
13. In view of the above provisions and the Law Laid by the Hon'ble Supreme Court it undisputable that:
  1. The person accused of the offence of "proceed of crime" is presumed guilty unless acquitted by Court of Law. Therefore the person accused in "convict".
  2. Therefore any person who harbors/screens/conceals such offender is not only offender under the PMLA act itself, but also offender under the Prevention of Corruption Act, Indian Penal Code and Representation of Peoples Act.

14. It is note worthy and as we have all are fully aware, that, once the primary offender is screened/concealed/harbored, by political party, the Authorities under the PMLA, DSPFA, Income Tax Act, Election Commission, cant see, feel, sense these primary offenders. Therefore the concealment is complete and undisputed.

15. Next, what we see iro such primary criminal offenders; once they are screened as above; there is give/take of 'gratification' to a political party; which is, in the form of power, votes in legislature, either by breaking the original party, or by cross voting, gaining majority, making opposition defunct etc. Thus the offence of 'gratification' is undisputable and complete.

16. Next, We the people, are entitled to "criminal free" political representative and 'non criminal political party'. Therefore the representative and/or the political party who commits offence of harboring, screening, concealment; with clear receipt of several forms of gratification, is no more than mere direct offenders, but also abettor, conspirator[PMLA scheduled offence], under PMLA, PCA and RPA, at the least.

17. Question 1 - The question is, whether the primary offender under PMLA, should be immediately debarred, from which ever party he/she/it is?

18. Question 2: Do, We the People, therefore have right or are We entitled to, get such, harboring, screening, concealing, conspirating and gratifying parties, disqualified?

19. Question 3: Are, the elected Parties and their members, who are Public Servants, who take oath to follow the law of land; bound to reveal and handover the primary offenders to the authorities and bring these offenders to justice? Or themselves acquit these offenders?

20. Question 4: Are, the Authorities under the aforesaid Acts, who are Public Servants, bound to prosecute such conspirators, abettors, haborers, politician/party and bring them to justice?

21. Question 5 - Are, the Authorities under the aforesaid Acts, themselves conspirators, abettors, in haborers, giving/taking gratification?

22. Leave it to the Esteemed readers to ponder upon each of questions in permutation and combinations above, and many more questions that may come to their mind.

Written By: Sandeep Kapatkar, Advocate Pune

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