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Submissions on behalf of PIL

17. Per contra, the learned senior counsel for PIL, controverting the submissions advanced by the learned counsel for the Directorate, has made the following submissions:

17.1 It is the case of PIL that the PAO issued by the Directorate, based on the presumption of proceeds of crime as defined under Section 2(1)(u) of the PMLA, would not be equivalent to the value of the coal already extracted, rather it would be equivalent to the benefit derived by the accused from the offence and the equivalent loss caused to the exchequer. Reliance in this regard has been placed on ML Sharma (Supra) to contend that such allocations were cancelled by the Supreme Court as on 24.09.2014, wherein the Court also directed the allotees to pay an additional levy of Rs. 295/- per metric ton of coal extracted from the respective coal blocks. Additionally, reference is made to Section 415 of the IPC to submit that the loss caused to the exchequer is emanating from the offence of cheating, which, in the present case, constitutes the benefit derived by PIL through allocation obtained on the basis of false and forged documents.

17.3 Additionally, the learned senior counsel for PIL has submitted that PIL has already paid a sum of Rs. 186,24,24,058/- to the Government by way of various cesses and duties from July 2006 to March 2015. Moreover, an amount of Rs. 680,93,44,083/- has been incurred by PIL towards development, operation and maintenance of the mine. All the three sums when aggregated, reflect a total expenditure of Rs. 1116,23,72,016/- incurred by PIL. It is the case of PIL that this aggregate amount is significantly higher than the alleged proceeds of crime, i.e., Rs. 951,77,34,115/-and as such there are no proceeds of crime liable to be attached as the alleged benefit is outweighed by the legitimate expenditure incurred by PIL.

48. In the present case, PIL misrepresented facts and figures in the process of obtaining coal block allocations, which typically attracts offences under Sections 420 and 467 of the IPC and Section 13(1)(d) of the PCA. Thereafter, the coal block allocation letter obtained through such criminal activity conferred valuable rights in favour of PIL which enabled the party to secure mining leases from the government and subsequently undertake coal excavation. As a result, it led PIL to obtain financial benefits in the form of profits earned from the extraction and sale of coal or through the usage of the financial benefits to substitute or derive assets, which qualifies as proceeds of crime within the meaning of Section 2(1)(u) of the PMLA.

56. In the present case, the Directorate‟s evaluation of Rs. 951.77 crores corresponding to the coal excavated during the financial years from 2006-07 to 2014-2015, reflects the financial gain derived by PIL pursuant to attaining the coal block allocation through misrepresentation. The quantification reached by the Directorate as also elaborated in the preceding paragraphs is not constrained to the date of allocation, rather continues as long as the benefit from the tainted property subsists. In the aforesaid background, although it is the case of PIL that the quantification by the Directorate is baseless, no credible evidence to rebut the said quantification has been produced, thereby failing to discharge the onus of proof imposed upon it once the procedural presumption arises.