Jammu & Kashmir High Court judge recuses in Farooq Abdullah plea challenging ED jurisdiction to attach his property in JKCA money laundering case

Justice Ali Mohammad Magrey of the Jammu & Kashmir High Court today recused from hearing the petition filed by Member of Parliament and former Chief Minister of Jammu & Kashmir Farooq Abdullah challenging the proceedings initiated by the Enforcement Directorate (ED) against him in a money laundering case..The case will now be posted before another Bench of the High Court..The case arises out of allegations regarding siphoning off funds of Jammu and Kashmir Cricket Association (JKCA) which surfaced in 2012. .When the allegations of fund siphoning emerged, Abdullah, who was then the President of JKCA, convened an immediate meeting of the office bearers of JKCA. Subsequently, an FIR was registered for criminal breach of trust under Sections 409, 406, and 120B of the Ranbir Penal Code (RPC). Then General Secretary and Treasurer Saleem Khan and Ahsan Ahmad Mirza were named as accused persons. .Simultaneously, Abdullah constituted an in-house probe committee to look into the issue. In May 2012, this committee submitted its interim report, in which it confirmed the embezzlement of funds by certain office bearers of the JKCA.Then in September 2015, the Jammu & Kashmir High Court directed that the investigation in the case be transferred to the Central Bureau of Investigation (CBI)..During the course of its investigation, the CBI arraigned Abdullah as an accused. It was alleged that he had appointed Ahsan Ahmad Mirza as Treasurer of the JKCA in violation of the provisions of the JKCA Rules, 1957, and thereby facilitated the actions of Mirza. It was further alleged that Abdullah unduly authorised Mirza to operate bank accounts and authorised the return of a loan to the tune of Rs. 1.9 crore to Mirza..The ED registered a case against Abdullah in 2018. .Abdullah's petition contends that the ED did not have jurisdiction to register the said case. On the date of registration of the Enforcement Case Information Report (ECIR), the erstwhile State of Jammu & Kashmir was governed by the Constitution of Jammu & Kashmir, 1956 and had special status in terms of Article 370 of the Constitution of India. Thus, the Prevention of Money Laundering Act (PMLA) was not a law which could extend to the State, as Parliament had did not have legislative competence to enact the said law in terms of the Constitution (Application to Jammu and Kashmir) Order, 1954..Despite having no jurisdiction, the ED initiated its investigation and summoned Mirza and others under Section 50 PMLA. This was challenged by Mirza before the High Court. However, in a judgment passed in October 2019, the Court declined the challenged on the basis of its interpretation of the term ‘corresponding law’. While doing so, the petition contends, the lack of legislative competence of Parliament to extend the PMLA to J&K was not raised or considered by the Court..In December 2020, the ED attached the properties of Abdullah and others worth Rs 11.86 crore in connection with its money laundering probe linked to alleged financial irregularities in the JKCA. "A bare perusal of the PAO makes it amply clear that the ED has simply adopted the case of the CBI and the resulting Final Report filed against the Petitioner. Barring the recording of a handful of statements under Section 50 PMLA, no independent inquiry has been conducted into the present case, rendering it inherently biased. Nowhere has the ED satisfactorily offered reasons to believe the Petitioner is in possession of proceeds of crime, or that such proceeds are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings under the PMLA, as is required under Section 5 PMLA. Admittedly, the properties attached have no relation to the present case," the petition states. .It is further contended that the properties attached by the ED are either ancestral or acquired by Abdullah prior to the date of the alleged offences, and hence were not involved in any alleged money laundering or related criminal activity..On these grounds and others, Abdullah has sought quashing of the original complaint dated January 15, 2021 pending before the Adjudicating Authority of the ED, as well as the provisional attachment order, the ECIR, and the notice dated February 5, 2021 issued under Section 8 of the PMLA by the Adjudicating Authority..Abdullah contends that it is a settled principle of constitutional law that there can be no retrospective application of criminal law. Hence, his arraignment in the present case falls foul of the rule against retrospectivity, as Section 120-B was not a scheduled offence as on the date of the alleged commission of the offence. .The plea has been filed through advocates Areeb Javed Kawoosa and Aatir Javed Kawoosa.