Saturday, Nov 29, 2014

SG changes opinion: Money laundering Act applies to Kanimozhi

Under Section 4 of the amended PMLA, a conviction can lead to seven-year imprisonment, and attachment of properties identified as “proceeds of crime”. PTI Under Section 4 of the amended PMLA, a conviction can lead to seven-year imprisonment, and attachment of properties identified as “proceeds of crime”.PTI
Written by Amitav Ranjan | New Delhi | Posted: January 13, 2014 4:04 am | Updated: January 13, 2014 8:20 am

In what could spell fresh trouble for DMK MP Kanimozhi, Solicitor General Mohan Parasaran has reversed his earlier opinion and said that the Enforcement Directorate can file a chargesheet against her and others in the 2G spectrum case on money laundering charges.

Asked to review his opinion of July 2013, the Solicitor General told the Law Ministry last month that the Prevention of Money Laundering Act could be applied on the transfer of Rs 200 crore to the DMK family-run Kalaignar TV.

The Rs 200-crore transfer from DB Realty group (which was awarded 2G spectrum) to Kalaignar TV, in which Kanimozhi was a 20 per cent stakeholder, forms the crux of the CBI and ED’s case against the DMK leader. The money laundering charges could put Kanimozhi, who spent six months in jail in 2011 after being charged by the CBI in the 2G scam, back behind bars.

Under Section 4 of the amended PMLA, a conviction can lead to seven-year imprisonment, and attachment of properties identified as “proceeds of crime”.

Kanimozhi’s advocate Joseph Aristotle said it was “too premature” to comment on the development. “Once it is out in the court, I would be able to comment,” he said.

The ED, through the Revenue Department, had asked for a review of the legal opinion from the Law Ministry on filing of the PMLA charges in September 2013.

On December 18, the Solicitor General wrote: “I find considerable force in the view of the Revenue Department and also taking into account the views of Attorney General as well as High Court judgments. While recalling my earlier opinion, I would like to state that in the facts and circumstances of the present case, the ED will be at liberty to await the launch of prosecution or launch prosecution.”

Parasaran also advised the Revenue Department to move quickly. “If the department defers launching prosecution for a considerable length of time, then the persons accused, by virtue of the change in the position of law subsequent to the amendments, may also challenge belated launch of prosecution and take advantage of delay and seek to challenge the very order of attachment (of property).”

The accused had challenged the application of the PMLA to the money transfers saying that 2G licences were allotted on January 10, 2008, much before the PMLA was amended on June 1, 2009, that made criminal conspiracy a ‘scheduled offence’ under the IPC.

In his previous opinion, on July 27, 2013, Parasaran had taken the same position, saying since the “offences under Section 13 of the Prevention of Corruption Act and Sections 120B, 420, 471 of the IPC were not scheduled offences under the PMLA” at the time, “prosecution for the offence of money laundering under Section 3 of the Act would be barred by Article 20 of the Constitution”.

Article 20 says that no person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence.

Parasaran’s view had run contrary to the Attorney General’s opinion, of June 14, 2013, that the PMLA would apply from the date on which the proceeds from a crime were projected as being untainted or, simply put, being laundered. Money was transferred to Kalaignar TV between December 23, 2008, and February 28, 2011 — after the amendment of the PMLA.

In his opinion last month that showed a reversal of stand, Parasaran also wrote: “The AG being the principal law officer for the government, his views customarily have to be given the highest weight and regard, and this is not a matter where any doubt has been cast on the earlier opinion given by the AG, which was accepted by the Law Ministry.”

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