A single judge bench of Jammu and Kashmir High Court on Thursday referred former Chief Minister and NC president Farooq Abdullah's plea challenging the jurisdiction of the Enforcement Directorate to attach his assets, to division bench.
Bench of Justice Dhiraj Singh Thakur referred the case to division bench after observing that the genesis of the proceedings against the petitioner Dr Farooq Abdullah as also former treasurer of Jammu and Kashmir Cricket Association (JKCA) Ahsan Ahmad Mirza lie in the case which is pending trial before the designated court. The issues, the court said, being common were therefore required to be considered together.
After the case was handed over to CBI for investigation by a division bench of High Court in 2015, the central agency besides others indicted Abdullah and Mirza in the final report filed before the designated court.
While the court noted that the proceedings initiated against Mirza were challenged by him in a petition bearing WP (C) no. 2780/2019 which was dismissed by its coordinate bench vide Judgment and Order dated 15.10.2019, counsel for the parties' informed it that a
Letters Patent Appeal filed, was pending before a division bench of the court.
The Court pointed out that in the present writ petition, the petitioner ( Farooq Abdullah) also challenges the action of the authorities under the Prevention of Money Laundering (PML) Act on the grounds of jurisdiction, the applicability of PML Act to the erstwhile State of Jammu and Kashmir, as also on grounds of illegality and procedural irregularities.
"Having gone through the writ petition as also the Judgement of the Coordinate Bench in Ahsan Mirza's case, it can be seen that some of the issues raised by the petitioner in the present petition were also issues, which were raised and decided by the Coordinate Bench, which now, form the subject matter of consideration by the Division Bench of this Court", Justice Thakur said.
The Court directed its Registrar Judicial to list the matter along with records of WP (C) 2780/2019 before the appropriate Bench after seeking due permission from the Chief Justice.
The Court held that while expressing the opinion that the matter be considered by a Division Bench, both Sr Counsel Sidharth Luthra, as also Tushar Mehta, Solicitor General of India expressed no objection.
In his plea Abdullah submits that his ancestral and family properties in Jammu and Kashmir have been 'illegally' attached by the ED as it had no jurisdiction to do the same.
"On the date of the registration of the ECIR (Enforcement Commission Information Report) and the initiation of investigation, the State of Jammu & Kashmir was governed by the Constitution of Jammu & Kashmir, 1956 and had special status in terms of Article 370 of the Constitution of India", the petition reads.
The petition pleads that on 28.12.2018 the ED registered the ECIR with section 120B RPC in the FIR and failed to appreciate that it had no jurisdiction to register it.
"The PMLA (Prevention of Money Laundering Act) was not a law which could extend to the jurisdiction of the State of Jammu & Kashmir, as the Parliament was not having legislative competence to enact the said law in terms of the Constitution (Application to Jammu and Kashmir) Order, 1954," says the petitioner.
He submits that the Ranbir Penal Code (RPC) enacted in the State of Jammu and Kashmir on 6 August, 1932 was not a central law nor was Section 120B of the RPC or any other provision of it contained in the Schedule to the PMLA.
The ECIR was registered by the ED pursuant to filing of chargesheet (final report) on 11.07.2018 before the CJM Srinagar by the CBI New Delhi in the FIR it had registered.
The petitioner submits that his attached properties are unrelated to the alleged criminal activity mentioned in the Final Report/FIR and is a continuing violation of his fundamental rights.
The petitioner submits that JKCA is a society registered under the Jammu and Kashmir Societies Registration Act, and is governed by the Rules of the Jammu and Cricket Association, 1957.
"All properties attached by the ED are either ancestral or acquired by the petitioner prior to the date of the alleged offences. The attached properties were acquired prior to the alleged commission of the offences, and hence were not involved in any alleged money-laundering or related criminal activity".
The petition is seeking quashing of Original Complaint dated 15.01.2021 pending before Adjudicating Authority under PMLA along with the Provisional Attachment Order dated 18.12.2020 issued in ECIR dated 28.12.2018 as well as notice dated 05.02.2021 issued under Section 8 Prevention of Money Laundering Act, 2002 by the Adjudicating Authority.
Vide the PAO, the ED has attached several properties belonging to the petitioner. It has attached assets of Farooq Abdullah and others and put it worth Rs 11.86 crore in connection with its money laundering probe linked to alleged financial irregularities in JKCA.