Judge recuses from hearing Abdullah’s plea against ED order
NC president’s challenge to the order attaching his properties listed for hearing on Mar 08
Srinagar: Justice Ali Mohammad Magrey, senior judge at the J&K High Court today recused from hearing a petition by Dr Farooq Abdullah, the former J&K Chief Minister.
The petition challenged the jurisdiction of the government of India’s Directorate of Enforcement (ED) to attach his (Abdullah’s) properties in an old case related to his alleged role in the financial irregularities as president of the Jammu and Kashmir Cricket Association (JKCA).
The petition was filed by Abdullah on 27th of February with an urgency memo seeking listing of his writ petition on that very day.
“In case it is not listed today, 27th of Feb for adjudication, I am sure to suffer irreparable loss and legal injury”, read his memo.
The case was listed today before the bench of Justice Ali Mohammad Magrey who recused the matter saying “judicial propriety demands the case be listed before some other Bench on 08.03.2021”.
Justice Magray observed during the course of hearing of submissions of the counsel for the petitioner (Abdullah), he (justice Magray) bethought that earlier in some matters arising out of somewhat identical basic allegations, he had declined to hear the case.
“On confirmation it was revealed that in fact, I have declined to hear the PIL No. 08/2014, titled Majid Yaqoob Dar and Anr. Vs. State and Ors., while sitting in the Division Bench with Hon’ble Mr. Justice N. Paul Vasantha Kumar, the then Chief Justice, by order dated 28.07.2015, passed therein and another case bearing LPA No. 293/2019 titled Ahsan Ahmad Mirza and Ors., Vs. Enforcement Directorate and Anr., while sitting in the Division Bench, by order dated 02.12.2019”, he said.
Dr Abdullah was represented by a group of lawyers including Sidharth Luthra Shri Singh, Javid Ahmad Kawoosa and Areeb Javid Kawoosa.
He submitted that his ancestral and family properties in Jammu and Kashmir have been illegally attached by the ED and that the agency had no jurisdiction to take such measures against him.
He pleaded that on the day the enforcement commission information report (ECIR) was registered against him and the investigation initiated, the 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”, the petition reads.
The special constitutional position of Jammu and Kashmir was lately rescinded on 5th of August 2019 and the state was dismembered into two centrally administered territories.
Abdullah and scores of politicians and political activists were subsequently jailed to avoid any resistance against the move.
Abdullah pleaded that on 28th of December 2018, ED registered the ECIR with section 120B RPC in the FIR but failed to realize that it had no jurisdiction to do so.
“The PMLA (Prevention of Money Laundering Act) was not a law which could extend to the jurisdiction of the State of Jammu & Kashmir, as the Parliament was not having legislative competence to enact the said law in terms of the Constitution (Application to Jammu and Kashmir) Order, 1954,” he said.
He also said that Ranbir Penal Code (RPC) enacted in the State of Jammu and Kashmir on 6 August, 1932 was not a central law nor was Section 120B of the RPC or any other provision of it contained in the Schedule to the PMLA.
The ECIR was registered by the ED pursuant to filing of charge sheet (final report) on 11.07.2018 before the Chief Judicial Magistrate Srinagar by the Central Bureau of Investigation New Delhi in the FIR it had registered.
He said that his attached properties are admittedly unrelated to the alleged criminal activity mentioned in the Final Report/FIR and is a continuing violation of his fundamental rights.
JKCA, he said, is a society registered under the Jammu and Kashmir Societies Registration Act, and is governed by the Rules of the Jammu and Kashmir Cricket Association, 1957.
“In 2012 certain allegations regarding the siphoning off of JKCA funds emerged. As per the Final Report these discrepancies were noticed by the then Treasurer, Manzoor Ahmed Wazir who brought it to notice of the petitioner”, he added.
He pleaded that he convened an immediate meeting of the Office Bearers of JKCA and subsequently an FIR No. 27/2012 dated 10.03.2012 under Sections 409, 406, 120B RPC was registered in PS Ram Munshi Bagh naming the erstwhile General Secretary and Treasurer namely Saleem Khan and Ahsan Ahmad Mirza as accused persons.
“Along with initiating a police investigation regarding these allegations, I constituted an In-House Probe Committee comprising of independent members of the Working Committee, report of which confirmed the embezzlement of funds by certain office bearers of the JKCA”, read his petition.
“Despite having no jurisdiction, the ED initiated its investigation. The ED issued the PAO, as per which properties of the Petitioner were illegally and arbitrarily attached”, the 85 year old politician said.
“All properties attached by the ED are either ancestral or acquired by the petitioner prior to the date of the alleged offences. The attached properties were acquired prior to the alleged commission of the offences, and hence were not involved in any alleged money-laundering or related criminal activity”, he petitioned.
He sought quashing of Original Complaint dated 15.01.2021 pending before Adjudicating Authority of ED along with the Provisional Attachment Order dated 18.12.2020 issued in ECIR dated 28.12.2018 as well as notice dated 05.02.2021 issued under Section 8 Prevention of Money Laundering Act, 2002 by the Adjudicating Authority.