Delhi High Court seeks ED response on plea by Congress' DK Shivakumar challenging PMLA probe against him

The Delhi High Court on Wednesday issued notice to the Directorate of Enforcement (ED) on Karnataka Congress president DK Shivakumar's plea challenging investigation into a money laundering case against him. .A Division Bench of Justices Mukta Gupta and Anish Dayal gave the ED time till December 15 to respond to the plea. .The Court, however, did not pass any order staying coercive action against Shivakumar noting that there was no application for the same. .Shivakumar approached the court arguing the ED is re-investigating the same offence which it had already investigated in a previous case lodged against him in 2018. The plea said that in the predicate offence in 2018, allegations were that Shivakumar conspired with others to launder illegal money acquired during the period he served as the Minister and MLA in the State of Karnataka..It argued that the predicate offence in the second ECIR alleges acquisition of assets by the petitioner during the period between 2013 to 2018 disproportionate to his known sources of income.This clearly shows that the investigation under the PMLA offence is identical in both the cases, the plea stated. "The respondent in the 1st ECIR had sought custody of the petitioner primarily to investigate the issue pertaining to the growth in assets of the petitioner during the period he served as the Minister and MLA in the State of Kamataka. The commencement of fresh proceedings under the PML Act on identical facts and covering the same period is directly infringing the rights guaranteed under the Constitution more particularly A1iicle 20(2) and Article 21," the petition argued..The petition also challenged Section 13 of the Prevention of Money Laundering (Amendment) Act, 2009 which included Section 13 of the Prevention of Corruption Act (PC Act) in the list of predicate offence under the PMLA. Section 13 of PC Act deals with criminal misconduct by a public servant and punishes a public servant for receiving illegal gratification by using their public office, misappropriating property or owning property beyond known sources of income. The amendment effectively provides that an accused who is alleged to have committed an offence u/s 13 of the PC Act can also be investigated under Section 3 (money laundering) of the PMLA. "It is humbly submitted that offence u/s 13 of the Prevention of Corruption Act, 1988 cannot lead to generation of proceeds of crime and thus, PML Act in such cases cannot be invoked against the person alleged to have amassed disproportionate assets. Thus, the inclusion of offence u/s 13 of the Prevention of Corruption Act is violative of Article 20(2) of the Constitution and Section 300 of CrPC.".Senior Advocate Kapil Sibal, appearing for Shivakumar, argued that the Section raises a very fascinating question because once it is concluded that the assets are disproportionate assets, there cannot be money laundering."Once, in the predicate offence it is found out that the money received from illegal means has been spent in disprportionate assets, no further offences of money laundering can be made out," he argued.