Sakina Tashrifwala
Published on: November 2, 2022 at 20:34 IST
The Delhi High Court issued a notice on Wednesday in a petition filed by Karnataka Congress Chief DK Shivakumar challenging the ED’s investigation into him in a money laundering case.
A division bench of Justice Mukta Gupta and Justice Anish Dayal sought the ED’s response before scheduling the case for the next hearing on December 15.
Shivakumar has opposed the ED’s 2020 proceedings, claiming that the agency is “re-investigating the same offence” that it had already probed in a previous case lodged by it in 2018.
It has thus been requested that the entire investigation, as well as the ongoing investigation, including the issuance of summonses in the 2020 case, be invalidated.
Furthermore, the Congress leader has questioned the constitutionality of Section 13 of the Prevention of Money Laundering (Amendment) Act, 2009, which altered the Act’s schedule and put Section 13 of the Prevention of Corruption Act within the anti-money laundering law.
In this context, it has been contended that including Section 13 of the Prevention of Corruption Act in the PMLA’s schedule violates the Constitution because the ingredients of the offence under the said provision are the same as those required to trigger the offence under Section 3 of the PMLA.
“As a result, there is complete overlapping of investigation by two separate agencies,” the plea adds. “The agency investigating the predicate offence under Section 13 of the Prevention of Corruption Act and the respondent agency investigating the same under Section 3 of the PML Act.”
During today’s hearing, Senior Advocate Kapil Sibal, who represented Shivakumar, contended that the case raises an issue about the Amendment Act of 2009’s inclusion of Section 13 of the Prevention of Corruption Act in the list of predicate offences under the PMLA.
“Once you conclude that the assets are excessive, there cannot be money laundering as a matter of law,” Sibal explained.
He continued: “They conducted an investigation in a previous prosecution for money laundering…this was done in the 2018 ECIR. Now that the elections are approaching, they have begun the process…so that I can be detained before the elections….”
The matter dates back to August 2017, when the Income Tax Department conducted seizures at Shivakumar’s premises. The ED then filed an ECIR in 2018 based on the prosecution complaint filed by the Income Tax Department.
According to the government, there was a criminal conspiracy among various individuals to conceal and project unaccounted and unlawful money as untainted property.
In September 2019, Shivakumar was summoned and arrested. On October 23, 2019, the Delhi High Court granted him bail.
Meanwhile, the Karnataka government authorised the CBI to investigate Shivakumar and other individuals for violating the provisions of the Prevention of Corruption Act.
The CBI then filed a FIR in October 2020, saying that between April 1, 2013 and April 30, 2018, Shivakumar was in possession of assets that were disproportionate to his known sources of income.
Following that, the ED filed another ECIR in 2020 to investigate the laundering of criminal funds with respect to the scheduled offence, Section 13 of the Prevention of Corruption Act.
In Shivakumar’s case, the ED exhaustively probed the entire issue of disproportionate assets allegedly obtained by him when he was an MLA in Karnataka in the 2018 ECIR.