Orissa High Court
The Enforcement vs State Of Odisha(Eow) on 4 July, 2022
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.549 of 2019
The Enforcement .... Appellant
Directorate
Mr.B.N.Nayak, Advocate
-versus-
State of Odisha(EOW) .... Respondent
Mr. B.N. Bhuyan,
Special Counsel (OPID)
CORAM:
JUSTICE S.K. SAHOO
ORDER
Order No. 04.07.2022
17. This matter is taken up through Hybrid arrangement (video conferencing/physical mode).
The appellant, the Enforcement Directorate, has challenged the impugned order dated 26.07.2017 passed by the Designated Court under the OPID Act, Balasore in C.T. Case No. 4(C)/2015 in which prayer made by the appellant by filing an application under section 44(1)(c) of the Prevention of Money-Laundering Act, 2002 (in short, 'PML Act') for passing an order to commit the case record to the Special Court under the PML Act -cum- Special Court, Bhubaneswar, Khurda for trial, has been rejected.
// 2 // Mr. Bibekananda Bhuyan, learned Special Counsel appearing for the State of Odisha in OPID Act matters submitted that before the Designated Court under the OPID Act, charge has been framed against the accused persons under section 6 of OPID Act, sections 420, 120-B read with section 34 of the Indian Penal Code and sections 4, 5 and 6 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 and some witnesses have already been examined.
Mr. Bibekananda Nayak, learned counsel for the appellant relying on section 44(1)(c) of the PML Act submitted that the Special Court under PML Act apart from trying the offences under section 4 of the PML Act can also try any scheduled offences connected to the offences under that section. He further submitted that 'scheduled offences' has been defined under section 2(y) of the PML Act, which reads as follows :
"2(y) 'scheduled offence' means-
(i) the offences specified under Part A of the Schedule; or
(ii) the offences specified under Part B of the Schedule if the total value involved in such offences is one crore rupees or more; or
(iii) the offences specified under Part C of the Schedule."
According to the learned counsel for the appellant, under section 44(1)(c) of the PML Act, if the Court which has taken cognizance of the scheduled offence, is other Page 2 of 4 // 3 // than Special Court under PML Act, which has taken cognizance of the complaint of the offence of money- laundering under sub-section (b), then on an application filed by the authority authorised to file a complaint under the PML Act, the Court has to commit the case relating to the scheduled offence to the Special Court under the PML Act and the Special Court shall on receipt of such case, proceed to deal with it from the stage at which it is committed. Learned counsel further submitted that sections 420 and 120-B of the Indian Penal Code are scheduled offences, which would be evident from Part A of the Schedule specified under section 2(y) and therefore, these two particular offences should be now tried before the Special Court under the PML Act along with section 4 of the PML Act. Learned counsel for the appellant drew the attention of this Court to the provision under section 71 of the PML Act, which states that the provision of the PML Act shall have the effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.
Mr. Bhuyan, learned counsel further submitted that in view of Article 246(2) of the Constitution of India and the fact that criminal law including all matters included in the Indian Penal Code comes under List III - Concurrent List, the State has enacted OPID Act. He further submitted that where a law passed by the State comes into collusion with a law passed by Parliament on an Entry in the Concurrent List, the State Act shall prevail to Page 3 of 4 // 4 // the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article
254. Where a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Article 254(2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only. (Ref. (1979) 3 Supreme Court Cases 431, M.Karunanidhi -Vrs.-Union of India). Mr. Bhuyan further submitted that OPID Act has received the assent of the President on 12.08.2013 and published in Odisha Gazette dated 19.08.2013. He further placed reliance on Section 8(4) of the OPID Act, which empowers the Designated Court while trying any case under OPID Act to try any other offence with which the accused may, under Cr.P.C., be charged at the same trial. He also placed reliance to section 16 of the OPID Act which states about the Act to override other laws.
At this stage, both the learned counsel for the parties submitted that the matter may be taken up next week in order to study the case laws on this particular issue.
Page 4 of 4// 5 // In view of such submission, list this matter on 11th July 2022.
Let a free copy of this order be handed over to the learned counsel for both the parties.
( S.K. Sahoo) Judge PKSahoo Page 5 of 4