Thread by @LiveLawIndia

Bombay High Court is hearing Shiv Sena (Uddhav B Thackeray) leader #ANILPARAB's plea to quash Enforcement Directorate's ECIR in Dapoli Resort Case.

#BombayHighCourt #ED

Sr Adv Amit Desai - The complaint that constitutes the predicate offence is by the Ministry of Environment. On 11 May 2022, the ECIR gets registered.

This is imp because there is no order of the court taking congnisanze of the offence.

#BombayHC #AnilParab

Desai - In June he was made to sit for 12 hours before the ED and statement was recorded.

In November the process is issued by the magistrate. The complaint was under 420 but cognisance was not taken under 420 which is a scheduled offence.

#BombayHighCourt #AnilParab

Desai - On Nov 28, 2022 a revision was filed by Parab and the order issuing process was stayed in Feb 2023, which has been extended till date.

Clarification - Process has been issued under sections of MoEF.

#BombayHighCourt #ED

Desai - In March 2023, ED went to MR Kadam's house and arrested him. Mr. Kadam is Para 's friend and owner of the resort.

Desai says that at 11am Kirit Somaiya gave interviews saying Kadam was arrested. However the arrest actually took place at 9pm

#BombayHighCourt #ED

J Dere - Isn't there an order of this very court that information regarding investigation should not be leaked. If it is leaked it would amount to contempt...

#BombayHighCourt #ED

Desai has said that statements were leaked to the media.

J Dere - You are saying the matter is pending before the Sessions Court. What happens till that is quashed. We will protect you till the sessions court decides.

#BombayHC #AnilParab

ASG Anil Singh submits that the petitioner should use the alternative remedy of ABA as there is also a second FIR pending.

J Dere - Oh we didn't know there is a second FIR.

#BombayHC #AnilParab

Desai continues arguing - He says that while MoEF's complaint was pending a stranger to the matter files an FIR.

#BombayHC #AnilParab

Desai - The allegation is that there was an order of the Central Government to demolish the resort. MRTP asked for demolition of part of the resort. They are saying there is a Sec 5 violation, but that is not a predicate offence.

#BombayHighCourt #AnilParab

Desai - All these are (BJP leader) Kirit Somaiya complaints... The substance of the charge in the FIR and the private complaint is the same.

With judicial application of mind the process issue in the private complainant has been stayed.

#BombayHighCourt #AnilParab

Desai points out that Parab is also helping in the constitution bench matter before the SC and while that is on, action is being taken against him by ED.

Desai - This is not the manner in which the agency must operate

#BombayHighCourt #AnilParab

Desai points out that on mere filing of a complaint the ECIR is registered...Someone is sitting in jail today because of this because on the day he was arrested there was no predicate offence.

#BombayHighCourt #ED #AnilParab

Desai - There has to be a prima facie determination when the predicate offence is registered.

#BombayHC #ED

J Ravati Mohite Dere - What happens if the FIR is registered and ED arrests and then a C Summary is filed?

Desai - It must depend on the facts of the case.. but the court must balance the interest of the state and the accused.

#BombayHighCourt #ED

Desai - Please see PMLA itself. The property is already attached...

It is any property derived or obtained by any person relating to a scheduled offence.

#BombayHighCourt #ED #AnilParab

Desai - The heart is 'proceeds of crime'. The legal principle should be...

Desai says that the magistrate should be given an opportunity to apply its mind before registering the ECIR.

#BombayHighCourt #ED #AnilParab

Desai - We can't have a legislation so draconian, where the judicial officer is asked to apply it's mind, but there is no wait before registering the ECIR.

#BombayHighCourt #ED #AnilParab

ASG Anil Deshmukh for ED - His two prayers are for quashing the ECIR and no coercive action. My submission is the same as earlier. He has an alternative remedy of ABA. If relief has to be given the twin conditions under PMLA would apply.

#BombayHighCourt #ED #AnilParab

ASG Anil Singh on ECIR filed prior to the court taking cognisance of the complaint.

"If there is an existence of a scheduled offence..

J Dere - What happens if it is the private complaint. Assuming it is filed earlier...

#BombayHighCourt #AnilParab #ED

ASG Anil Singh - The second FIR is different in this case. He has illegally constructed the resort.

#BombayHighCourt #AnilParab #ED

J Dere - We will grant you protection (to approach sessions court).This definitely needs to be dealt with. We need to decide this sometime.

Desai makes a final attempt to convince the court.

#BombayHC #AnilParab

J Dere - Also you've not challenged the second FIR...

Sr Adv Desai requests that the matter be kept tomorrow for legal submissions.

#BombayHighCourt #ED #AnilParab

J Dere - We will see what is happening in the sessions court. We propose to keep the matter on Thursday.

ASG says that even if the Sessions Court takes a decision, the 2nd FIR is always there.

#BombayHighCourt #ED #AnilParab

Desai - I've just been informed that the revision has been allowed in the sessions court.

J Dere - We will grant no coercive action.

#BombayHighCourt #ED #AnilParab