BEFORE THE HON’BLE HIGH COURT OF CAPPADOCIA

IN THE MATTER OF:

WRIT PETITION No.______/20XX

DENNIS WAYNE & ORS. …PETITIONERS

VERSUS

DIRECTORATE OF ENFORCEMENT,

OTTOMAM & ORS … RESPONDENTS

WITH

BAIL APPLICATION No._______/20XX

DENNIS WAYNE & ORS. …PETITIONERS

VERSUS

DIRECTORATE OF ENFORCEMENT,

OTTOMAM & ORS … RESPONDENTS

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS

COUNSEL APPEARING ON BEHALF OF THE PETITIONERS

Submitted by: Ayush Gaur

UID: SM0117012

4TH YEAR, 7TH SEMESTER

 TABLE OF CONTENTS

LIST OF ABBREVIATION ............................................................................................................................. iv

INDEX OF AUTHORITIES ............................................................................................................................. v

JUDUCIAL DECISIONS .............................................................................................................................. v

STATUTES ................................................................................................................................................ vi

LEGAL DATABASE .................................................................................................................................. vi

LEXICONS ................................................................................................................................................ vi

STATEMENT OF ISSUES .............................................................................................................................. xi

SUMMARY OF ARGUMENTS ......................................................................................................................xiii

ARGUMENTS ADVANCED ............................................................................................................................. 1

1. THAT THE WRIT PETITION AND THE PETITION FOR BAIL BROUGHT BEFORE THIS COURT IS
MAINTAINABLE. ........................................................................................................................................... 1

[1.1] JURISDICTION OF HIGH COURT UNDER ARTICLE 226 CAN ALWAYS BE INVOKED. ................. 1

[1.2] THE HON’BLE HIGH COURT IS WELL WITHIN ITS RIGHTS TO ACCEPT THE PRESENT BAIL
PETITION AS WELL AS THE WRIT PETITION. ....................................................................................... 2

[1.3] AVAILABLE OF ALTERNATE REMEDY NO BAR TO FILE PETITION. ............................................... 3

2. THAT THE PROVISIONAL ORDER FOR ATTACHMENT OF THE PROPERTIES WITHOUT DECIDING
THE QUESTION OF INDEPENDENT OWNERSHIP OF PROPERTIES OWNED BY THE OTHER FAMILY
MEMBERS OF DENNIS WAYNE IS NOT SUSTAINABLE .............................................................................. 4

[2.1] PROPERTIES BELONGING TO FAMILY MEMBERS ARE NOT PROCEEDS OF CRIME .................... 4

[2.2] REASON TO BELIEF WAS NOT IN WRITING .................................................................................. 5

3. THAT THE PROVISIONAL ATTACHMENT OF PROPERTIES WHICH WERE PURCHASED MUCH

PRIOR TO, NOT ONLY THE COMMISSION OF ALLEGED OFFENCE BUT ALSO INTRODUCTION OF THE
PMLA IS NOT SUSTAINABLE........................................................................................................................ 6

4. THAT THE SHOW CAUSE NOTICE ISSUED BY ADJUDICATION AUTHORITY WHICH DOES NOT
CONTAIN ‘REASONS TO BELIEVE’ IS NOT MAINTAINABLE UNDER THE PREVENTION OF MONEY
LAUNDERING ACT 2002. .............................................................................................................................. 7

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5. THAT THE ORDER OF PROVISIONAL ATTACHMENT OF THE PROPERTY AND THE ORDER OF
THE ADJUDICATING AUTHORITY ISSUING SHOW CAUSE NOTICES WERE PASSED IN VIOLATION OF
THE PRINCIPLES OF NATURAL JUSTICE AND WITHOUT PROVIDING ADEQUATE OPPORTUNITY OF
BEING HEARD. ........................................................................................................................................... 10

6. THAT THE BAIL SHOULD BE GRANTED TO THE PETITONER UNDER SECTION 439 OF CR.P.C. 13

[6.1]SECTION 45 OF PMLA DOES NOT CONTAIN ANY BAR.................................................................. 13

[6.2] SECTION 439 OF THE CR.P.C. IS APPLICABLE IN MATTERS RELATED TO BAIL UNDER PMLA 15

PRAYER ......................................................................................................... Error! Bookmark not defined.

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 LIST OF ABBREVIATION

ABBREVATION EXPANSION
AIR All India Reporter
v. Versus
SC Supreme Court
Ed. Edition
SCC Supreme Court Cases
Art. Article
OS Original Suit
Govt Government
i.e. Id Est
e.g. Exempli Gratia
& And
SCC Supreme Court Cases
p. Page No.
Sec Section
NCT National Capital Territory
Ibid Ibidem
Anr Another
Ors. Others
¶ Paragraph
¶¶ Paragraphs

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 INDEX OF AUTHORITIES

JUDUCIAL DECISIONS

1. A.Kamarunnisa Ghori and Others v. The Chairperson, Prevention of Money Laundering,

Union of India, New Delhi & Others WP No. 1912, 2870,13421 and 22062 of 2011.
2. A.V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani,
AIR 1961 SC 1506.
3. Chunnilal Mehta v. Century Spinning & M Co. Ltd., AIR 1962 SC 1314.
4. C.B. Gautam vs. Union of India, 1993(1) SCC 78
5. Dale & Carrington Investment Ltd. v. P.K. Prathapan, (2005) 1 SCC 212.
6. Excel Powmin Ltd. v. Union of India and Ors., (19.02.2020-CALHC)
MANU/WB/0302/2020
7. Haryana State Industrial Corporation v. Cork Mfg. Co., AIR 2008 SC 56.
8. ICICI Bank Limited, represented by its Authorised Signatory v. Joint Director and Others
2020 SCC OnLine Mad 3109.
9. ICICI Bank Ltd. and Ors. v. The Joint Director, Directorate of Enforcement, Mumbai
MANU/ML/0093/2019.
10. J. Sekar v. Union of India 2018 SCC OnLine Del 6523.
11. Kathi Ranig Rawat v. The State of Saurashtra, AIR 1952 SC 123.
12. Kranti Associates v. Masood Ahmed Khan (2010) 9 SCC 496.
13. Mahanivesh Oils & Foods Pvt Ltd v Directorate of Enforcement, (2016) 129 CC 0164.
14. Obulapuram Mining Company Pvt Ltd v Joint Director Directorate of Enforcement
Government of India 2017 (4) TMI 1
15. Onkar Lal Bajaj v. Union of India, (2003) 2 SCC 673.
16. Panchali Roy Choudhury v. Union of India 2020 SCC OnLine Gau 4175.
17. Pawan Kumar v. State of Haryana, (2003) 11 SCC 241.
18. Rose Valley Hotels and Entertainments Limited v. Secretary, Department of Revenue,
Ministry of Finance [2015] 131 SCL 749 (Delhi).

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19. Satyen Suresh Gathani and Ors. Vs. The Deputy Director, Directorate of Enforcement,
Mumbai, FPA-PMLA -1988/MUM/2017
20. Seema Garg vs. Deputy Director, Directorate of Enforcement, Prevention Of Money
Laundering Act, 2002 No.1 of 2019(O&M),
21. Sripur Paper Mills v. Commissioner of Wealth Tax, (1970) AIR 1520.
22. The Deputy Director, Directorate of Enforcement, Delhi v. Axis Bank & Ors. (Crl. A.
143/2018).
23. Whirlpool Corpn. v. Registrar of Trade Marks [1998] 8 SCC 1.
24. Whirlpool Corporation v. Registrar of Trade Marks, AIR 1999 SC 22.

STATUTES

1. Indian Penal Code, 1860…………………………………………………………..passim

2. The Constitution of India, 1950………………………………………………...…passim

3. Code of Criminal Procedure, 1973……………………………………………..…passim

4. Prevention of Corruption Act, 1988………………….…………………….……..passim

5. Prevention of Money Laundering Act, 2002 ……………………………………..passim

LEGAL DATABASE

1. Manupatra

2. SCC Online

3. Westlaw

4. Indian Kanoon

LEXICONS

1. Garner Bryana, Black‟s Law Dictionary, 7th Edition, 1999

2. P. Ramanatha Aiyar, Concise Law Dictionary, 3rd Edition, 2011

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 STATEMENT OF JURISDICTION

The Petitioners have approached the Hon’ble High court of Cappadocia under Article 226 of
Constitution of India, 1950.1

1
226. Power of High Courts to issue certain writs
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation
to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government,
within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part
III and for any other purpose
(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person
may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause
of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government
or authority or the residence of such person is not within those territories
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is
made on, or in any proceedings relating to, a petition under clause ( 1 ), without
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order;
and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such
order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel
of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it
is received or from the date on which the copy of such application is so furnished, whichever is later, or where the
High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High
Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as
the case may be, the expiry of the aid next day, stand vacated
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the
Supreme court by clause ( 2 ) of Article 32

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 STATEMENT OF FACTS

1. The Constitution of Pernitia is similar to that of Constitution of India as the Republic of

Pernitia was seceded from Republic of India. The Constitution of Pernitia also adopted the
Code of Criminal Procedure 1973, The Indian Penal Code 1860, The Indian Evidence Act,
1872, The Prevention of Corruption Act, 1988, The Prevention of Money Laundering Act,
2002 in verbatim.

2. Bruce Morgan was an Assistant Administrative Officer (AAO) in Konya Life Insurance
Company (KLIC) which is a state- owned insurance group and was also a KLIC Agent
selling life insurance policies consistent with Company policy while Dennis Wayne was
Under Secterary, Department of Consumer Affairs in Government of Pernitia from 2015-
2017.

3. A FIR was registered bearing no. 120/2018 on 17.0.2018 under Sections 13(2) r/w 13(1)(e)
of The Prevention of Corruption Act, 1988 (PC Act) and Sections 420, 406, 409 and 120
B of the Indian Penal Code, 1860 (IPC) against Dennis Wayne and Bruce Morgan. The
FIR stated that had invested huge amounts of money in purchasing life insurance policies
and several properties in his own name and in the name of his family members, which was
done by executing a fabricated Memorandum of Understanding (MoU) between them.

4. According to Dennis Wayne, he had entered into a MoU dated 15.06.2012 with Bruce
Morgan, for management and sale of oranges growing in his Orange orchard, called Orange
Valley situated in Marmaris. In pursuance of the terms of the said MoU, Bruce Morgan
sold the oranges produced from the said orchard, to one Mr. Euphes Dumphrey of M/s
Herald Beverages and the cash proceeds obtained from the alleged sale of the oranges was
deposited into his own bank. But on investigation it wasfound that the MoU was sham and
was fabricated on March 2018, after, Bruce Morgan came under the scrutiny of Income
Tax Authorities for tax evasion in 2017.

5. Charge-sheet was filed by the CBI, bearing charge sheet No. 56/2018 on 18/10/2018 in
relation to the subject FIR under Sections 13(2) r/w 13(1)(e) of the PC Act, 1988 read with

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 Sections 420, 406, 409 and 120 B IPC. Sanctions for prosecution against Dennis Wayne
and Bruce Morgan, were obtained on 20/11/2018 and 25/11/2018.

6. On the basis of the said FIR, an ECIR (Enforcement Case Information Report) was
registered by the Directorate of Enforcement, Ottomam, on 12.02.2019 against Dennis
Wayne and Bruce Morgan, for the commission of an offence under Sections 3 and 4 of the
PMLA, 2002 and summons were issued on 23/03/2019 to them to appear before the
Enforcement Directorate and furnish information and documents with respect to the life
insurance policies and properties purchased.

7. The Enforcement Directorate on being dissatisfied with their explanations, filed a

complaint before the Special Court (PMLA), Kapan, on 05.06.2019, alleging that both the
persons were actively involved in the offence of money laundering, as no reliable and
credible documents were forthcoming from the accused persons about the source from
where he obtained such quantities of cash and properties.

8. The Deputy Director, Directorate of Enforcement, Ottomam, on the basis of the passed a
Provisional Order of Attachment being No. 09/2019 dated 23.07.2019 under Section 5(1)
PMLA, directing the attachment of the following properties One house purchased in 1999
in the name of Dennis Wayne, one house purchased in 2001 in the name his wife Elisa
Wayne, one 6 BHK pent house in Avery residential apartments purchased in 2016 in the
name of his son Danny Wayne and seized 100 nos. of life insurance policies amounting to
Rs.200 crores allegedly purchased out of proceeds of crime.

9. The Deputy Director, Directorate of Enforcement, Ottomam, filed a complaint being OC

No. 07/2019 dated 12.08.2019, before the Adjudicating Authority for confirmation of
Provisional Order of Attachment. The Adjudicating Authority passed a direction for
issuance of show-cause notice on 25.08.2019 directing them to appear for the enquiry on
28.09.2019.

10. Dennis Wayne and Bruce Morgan failed to appear before the Adjudicating Authority and
neither did they reply to the show cause notice for over two months. Subsequently, the
Adjudicating Authority passed an ex-parte order, confirming the Provisional Order of
attachment of property.

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11. Dennis Wayne and Bruce Morgan filed an Appeal under the PMLA before the Appellate
Tribunal, Kapan, challenging the Order of provisional attachment of property No. 09/2019
and the Order of the Adjudicating Authority directing issuance of show-cause notice on
26/10/2019. The learned tribunal dismissed the appeal stating that parties were raising
objection with motive to frustrate proceedings. Subsequently, Dennis Wayne and Bruce
Morgan filed writ petition before High court challenging the entire proceedings.

12. Dennis Wayne and Bruce Morgan were arrested on 30/12/2019 in connection with the said
ECIR registered by Enforcement Directorate. Subsequently they gave their bail
applications before learned Special Court, Kapan stating that commission of the scheduled
offence as alleged in the FIR were yet to be established and also their release would not
hamper the investigation as the documents and material on record were already in the
custody.

13. The special court rejected the bail application stating that the investigation was at the initial
and crucial stage and the source of the proceeds of crime were yet to be ascertained.

14. Dennis Wayne and Bruce Morgan then approached the High Court of Cappadocia by way
of bail application under section 439 Cr.PC on the same grounds that had been relied on
before learned Special Court, Kapan.

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 STATEMENT OF ISSUES

ISSUE I

WHETHER THE WRIT PETITION AND THE PETITION FOR BAIL BROUGHT BEFORE
THIS COURT IS MAINTAINABLE?

ISSUE II

WHETHER THE PROVISIONAL ORDER FOR ATTACHMENT OF THE PROPERTIES

WITHOUT DECIDING THE QUESTION OF INDEPENDENT OWNERSHIP OF
PROPERTIES OWNED BY THE OTHER FAMILY MEMBERS OF DENNIS WAYNE IS
SUSTAINABLE?

ISSUE III

WHETHER THE PROVISIONAL ATTACHMENT OF PROPERTIES WHICH WERE

PURCHASED MUCH PRIOR TO, NOT ONLY THE COMMISSION OF ALLEGED
OFFENCE BUT ALSO INTRODUCTION OF THE PMLA IS SUSTAINABLE?

ISSUE IV

WHETHER THE SHOW CAUSE NOTICE ISSUED BY ADJUDICATION AUTHORITY

WHICH DOES NOT CONTAIN ‘REASONS TO BELIEVE’ IS MAINTAINABLE UNDER
THE PREVENTION OF MONEY LAUNDERING ACT 2002.

ISSUE V

WHETHER THE ORDER OF PROVISIONAL ATTACHMENT OF THE PROPERTY AND

THE ORDER OF THE ADJUDICATING AUTHORITY ISSUING SHOW CAUSE NOTICES
WERE PASSED IN VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE AND
WITHOUT PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD.

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 ISSUE VI

WHETHER THE BAIL UNDER SECTION 439 OF CR.P.C. SHOULD BE GRANTED TO

PETITIONER?

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 SUMMARY OF ARGUMENTS

1. WHETHER THE WRIT PETITION AND THE PETITION FOR BAIL BROUGHT
BEFORE THIS COURT IS MAINTAINABLE?

It is humbly submitted before this Hon’ble Court that the bail and writ petition brought for
challenging the proceedings pending before the Deputy Director, Directorate i Directorate of
Enforcement, Ottoman is maintainable under Article 226 of the Constitution of India as first, the
jurisdiction of High Court under Article 226 may always be invoked; secondly, the High Court is
well within its rights to hear the writ petition as well as the bail petition; and thirdly, availability
of alternate remedy is no bar to file petition.

2. WHETHER THE PROVISIONAL ORDER FOR ATTACHMENT OF THE

PROPERTIES WITHOUT DECIDING THE QUESTION OF INDEPENDENT
OWNERSHIP OF PROPERTIES OWNED BY THE OTHER FAMILY MEMBERS OF
DENNIS WAYNE IS SUSTAINABLE?

It is humbly submitted before this Hon’ble Court that respondents did not took into the
consideration of individual ownership that the family members had in the said property and was
not under the ownership of Dennis Wayne. The said properties were brought prior to commission
of alleged offence thus were not the proceeds of crime. The Deputy Director also has not furnished
his reasons for believing the same to neither to the petitioners nor their family members.

3. WHETHER THE PROVISIONAL ATTACHMENT OF PROPERTIES WHICH WERE

PURCHASED MUCH PRIOR TO, NOT ONLY THE COMMISSION OF ALLEGED
OFFENCE BUT ALSO INTRODUCTION OF THE PMLA IS SUSTAINABLE?

It is humbly submitted before this Hon’ble court that the properties so attached were not only
purchased prior to commission of offence but also the introduction of the PMLA, 2020. Thus it is
in violation of of Article 20(1) of the Constitution of India where it has been said that law cannot
be applied retrospectively, but the same has been done in this case. Therefore the said attachment
is not sustainable.

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4. WHETHER THE SHOW CAUSE NOTICE ISSUED BY ADJUDICATION
AUTHORITY WHICH DOES NOT CONTAIN ‘REASONS TO BELIEVE’ IS
MAINTAINABLE UNDER THE PREVENTION OF MONEY LAUNDERING ACT
2002.

It is humbly submitted before this Hon’ble court that while issuing the show cause notice had not
communicated the ‘reasons to believe’ on which they had relied their allegation that Dennis Wayne
and Bruce Morgan had committed an offence under PMLA, 2002, which is a pre requisite for
sending the notice. This hinders the petitioner in giving an effective reply to Adjudication
Authority due to non-communication of “reason to believe”. Thus making the proceeding under
adjudicating Authority dubious and questionable.

5. WHETHER THE ORDER OF PROVISIONAL ATTACHMENT OF THE PROPERTY

AND THE ORDER OF THE ADJUDICATING AUTHORITY ISSUING SHOW CAUSE
NOTICES WERE PASSED IN VIOLATION OF THE PRINCIPLES OF NATURAL
JUSTICE AND WITHOUT PROVIDING ADEQUATE OPPORTUNITY OF BEING
HEARD.

It is humbly submitted before this Hon’ble court that order of provisional attachment of property
by deputy director under Section 5(1) and order of the adjudicating authority issuing show cause
notices under Section8(1) were passed in violation of the principles of Natural Justice because
under section 8(1) of the PMLA, 2002, it is mandatory for the adjudicating officer to serve a copy
of the notice to all the family members if the property is jointly owned by them. The same was not
done in the present case as Adjudicating Authority had passed an order of attachment of properties
belonging to the family members without giving them proper hearing and hence, it violates the
principals of natural justice.

6. WHETHER THE BAIL UNDER SECTION 439 OF CR.P.C. SHOULD BE GRANTED

TO PETITIONER?

It is submitted before this Hon’ble Court that bail should be granted to as all the evidence related
to petitioners where in custody of the Respondent so there was no chance that they could have
tampered with the evidence and above all the Adjudicating Authority have attached the property

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without following proper procedure causing gross injustice to petitioner. Therefore bail should be
granted to petitioners.

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 ARGUMENTS ADVANCED

1. THAT THE WRIT PETITION AND THE PETITION FOR BAIL BROUGHT BEFORE THIS COURT
IS MAINTAINABLE.

[1.1] JURISDICTION OF HIGH COURT UNDER ARTICLE 226 CAN ALWAYS BE INVOKED.

1. It is humbly submitted before this Hon’ble court that jurisdiction conferred under Art. 226 on
the High Court are corrective one and not a restrictive one and whenever a question of law of
general public importance arises the jurisdiction of High Court can be invoked under Article
226 of Indian constitution. There is a duty imposed on High Court to exercise its power by
setting right the illegality in the judgments is well-settled that illegality must not be allowed
to be perpetrated and failure by the High Court to interfere with the same would amount to
allowing the illegality to be propagated.2 It has been held in a variety of cases that the
jurisdiction of the High Court may be invoked when a matter of law is of general public
importance and here in the present case the issue involves matter of general public importance
and hence maintainable.
2. It is also submitted before this Hon’ble court that the question of law involves a “substantial
question of law”. In the case of Chunnilal Mehta v. Century Spinning & M Co. Ltd3, it was
said that the proper test for determining whether a question of law raised in the case is
substantial would, in our opinion, be whether it is of general public importance or whether it
directly and substantially affects the rights of the parties and if so whether it is either an open
question in the sense that it is not finally settled by this court or by the Privy Council or by the
Federal Court or is not free from difficulty or calls for discussion of alternative views. If the
question is settled by the highest court or the general principles to be applied in determining
the question are well settled and there is a mere question of applying those principles or that
the plea raised is palpably absurd, the question would not be a substantial question of law.
3. The petitioner want to submit before this Hon’ble Court that the question of law which is
involved in this present case is of recurring nature and has been raised many times in other

2
Pawan Kumar v. State of Haryana, (2003) 11 SCC 241.
3
AIR 1962 SC 1314

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WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS
 cases also, so it is a disputable matter. Therefore this question of law is entitled to be
maintainable as it involves substantial question of law.
4. It is also submitted before this Hon’ble Court that Article uses the word “in any cause or
matter”4. This give the wide discretion to the court to deal with any cause or matter. It is, plain
that when the High Court reaches the conclusion that a person has been dealt with arbitrarily
or that a court or tribunal has not given a fair deal to a litigant, then no technical hurdles of
any kind like the finality of finding of facts, or otherwise can stand in the way of the exercise
of this power.
[1.2] THE HON’BLE HIGH COURT IS WELL WITHIN ITS RIGHTS TO ACCEPT THE PRESENT
BAIL PETITION AS WELL AS THE WRIT PETITION.

5. It is humbly submitted before this Hon’ble court that under PMLA, 2002 in any case of appeal
of or revision the jurisdiction of High Court can be evoked. The section 47 of PMLA, 2002
provides that “the High Court may exercise, so far as may be applicable, all the powers
conferred by Chapter XXIX or Chapter XXX of the Code of Criminal Procedure, 1973 (2 of
1974),”5 Thus High Court has jurisdiction over present writ petition and bail as the petitioner
was aggrieved by the decision of the appellant tribunal seek to approach High Court under
Section 42 of PMLA, 2002.
6. It is humbly submitted before the Hon’ble High Court that this court has adequate jurisdiction
to hear the writ petition under Article 226. The High Court has jurisdiction with respect to the
writ petition filed, wherein it can call for the records of proceedings from the lower court for
review, in the event of gross miscarriage of justice. Albeit, the Act lays down a formal
procedure for appeal against the decision of the Adjudicating Authority pertaining to
attachment of the property, being proceeds of crime, the Hon’ble High Court may entertain
Writ petitions, even though an alternate remedy by way of normal forum of hierarchy of
Tribunal and Courts is available. The present case calls for the same and the High Court has
a duty to look into this matter.
7. It is humbly submitted before this Hon’ble court Supreme Court in the case of Whirlpool
Corpn. v. Registrar of Trade Marks6, wherein, the Supreme Court laid down the triple test for

4
Kathi Ranig Rawat v. The State of Saurashtra, AIR 1952 SC 123.
5
S.47, Prevention of Money Laundering Act, 2002.
6
[1998] 8 SCC 1.

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WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS
 entertaining a writ petition despite availability of the remedy of an appeal in contractual
matters i.e., firstly if the action of the respondent is illegal and without jurisdiction, secondly
if the principles of natural justice have been violated and thirdly if the petitioner's fundamental
rights have been violated.
8. In the instant case the respondent has violated the principles of natural justice by attaching
properties which were not even the part of the transactions and also didn’t gave petitioners a
proper hearing shows that there was gross injustice. So jurisdiction of High Court has been
invoked both by Art.226 and Section 47, both can be heard and decided by this Hon’ble Court.

[1.3] AVAILABLE OF ALTERNATE REMEDY NO BAR TO FILE PETITION.

9. It is humbly submitted before the Hon’ble Court that the remedy under Article 226 of the
Constitution is discretionary remedy and the High Court is vested with power to entertain the
petition where there occurs gross miscarriage of justice and effective remedy is not available7.
This rule of exhaustion of the statutory remedy is somewhat flexible and it is primarily a
matter of the discretion of the writ court8. In the case of Whirlpool’s Corp. v. Registrar of
Trade Marks9, in which it was held by the Apex Court that the jurisdiction of the High Court
in entertaining a writ petition under article 226 of the Constitution would not be affected
although there exists alternative statutory remedies.
10. The Hon’ble High Court of Madras in the case of A.Kamarunnisa Ghori and Others v The
Chairperson Prevention of Money Laundering10, accepted the Writ Petition on a limited point,
where the Enforcement Directorate and Adjudicating Authority interpreted the law in a way
different from the view point of the Hon’ble Court. Against the argument of presence of
alternate remedy, the Hon’ble Court held that “in view of the fact that the order of the
Appellate Tribunal is ultimately subject to an appeal to this Court under Section 42 of the Act.
By the time the petitioners go before the Appellate Authority and thereafter come up before
this Court under Section 42, the petitioners would have long lost possession of their
properties” and hence prejudiced. To prevent such gross violation of rights of the petitioners,

7
[2015] 131 SCL 749 (Delhi).
8
A.V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani, AIR 1961 SC 1506.
9
AIR 1999 SC 22.
10
WP No. 1912, 2870,13421 and 22062 of 2011

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WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS
 it becomes necessary for this Hon’ble to intercede in this case, as it has adequate jurisdiction
to do so.
11. It is also submitted that a writ petition is maintainable when it involves a public law character
and when the forum chosen by the parties would not be in a position to grant appropriate relief.
In the case Maharashtra Chess Association v. Union of India11
“The mere existence of alternate forums where the aggrieved party may secure relief does not
create a legal bar on a High Court to exercise its writ jurisdiction. It is a factor to be taken
into consideration by the High Court amongst several factors.”

2. THAT THE PROVISIONAL ORDER FOR ATTACHMENT OF THE PROPERTIES WITHOUT

DECIDING THE QUESTION OF INDEPENDENT OWNERSHIP OF PROPERTIES OWNED BY THE
OTHER FAMILY MEMBERS OF DENNIS WAYNE IS NOT SUSTAINABLE

[2.1] PROPERTIES BELONGING TO FAMILY MEMBERS ARE NOT PROCEEDS OF CRIME

12. The petitioners humbly submits before this Hon’ble Court that the Deputy Director,
Directorate passed the provisional order without taking into consideration of the independent
ownership of properties and attached the properties owned by other family members which
were not related to the crime i.e. they were not the proceeds of crime as the same were
purchased prior to the commission of offence.
13. Under Section 5 (1) (a) of Prevention of Money Laundering Act, 200212, it is clearly stated
that property must be attached of any person who is in possession of any proceeds of crime,
but here in the present case Dennis Wayne has no ownership and possession of the properties
of his wife Elisa Wayne and his son Danny Wayne. Therefore said properties cannot be
attached under this subsection.
14. Section 5 (1) (c) Director or Deputy Director can attach if he has reason to believe that such
proceeds of crime are likely to be concealed, transferred or dealt in manner which may
resulting frustrating of proceedings13. This sections states that Director or Deputy Director can
attach the proceeds of crime if they have reasons to believe that those proceeds of crime will
be transferred or concealed in order to frustrate the proceedings and in the present case the
property of Elisa Wayne purchased in 2001 and of Danny Wayne purchased in 2016 were

11
2019 SCC OnLine SC 932
12
Sec. 5(1)(a), Prevention of Money Laundering Act, 2002.
13
Sec. 5(1)(c), Prevention of Money Laundering Act, 2002.

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WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS
 purchased prior to when the Dennis Wayne and Bruce Morgan came under the scrutiny in
2017-18. So these properties cannot be attached under this subsection as the same were not in
the possession of Dennis Wayne therefore cannot be transferred or concealed by him.
15. In the case of The Deputy Director, Directorate of Enforcement, Delhi v. Axis Bank & Ors. it
was held that, if it is shown by cogent evidence by the bona fide third party claimant, staking
interest in an alternative attachable property claiming that it had acquired the same at a time
anterior to the commission of the proscribed criminal activity, the property to the extent of
such interest of the third party will not be subjected to attachment and confiscation.14 Here in
the present case also it is evident from facts that the properties were brought prior to the
commission of the criminal activity, which were not the proceeds of crime therefore cannot
be arbitrarily attached by the Enforcement Directorate.

[2.2] REASON TO BELIEF WAS NOT IN WRITING

16. It is humbly submitted before this Hon’ble court that Deputy Director on belief that non
attachment of property would frustrate the proceedings passed the Provisional Order of
Attachment without recording the reason of such belief in writing which is required under
Section 5 of PMLA, 2002. This section provides that property can be attached only when the
Director or Deputy Director has “reasons to believe” and such reasons for belief should be
recorded in writing. It is not merely formality nor it means to repetition of contents/allegations
referred in the FIR and charge-sheet.15
17. In the case of Seema Garg vs. Deputy Director, Directorate of Enforcement, Punjab16 it was
held by the court that respondent is bound to record the reasons on the basis of material in his
possession that property is likely to be concealed or transferred or dealt with in any manner
which would frustrate confiscation proceedings.
18. In the case Satyen Suresh Gathani and Ors. Vs. The Deputy Director, Directorate of
Enforcement, Mumbai, the court observed that the reasons to believe is on a higher pedestal
than the mere satisfaction and only satisfaction is not sufficient to pass the order u/s. 5(1), but
the officer has to have reasons to believe and the said reasons has to be recorded. The stringent
provision of PMLA requires scrupulous compliance. The non-compliance of the stringent

14
259 (2019) DLT 500
15
MANU/ML/0021/2019
16
2020 Indlaw PNH 190

5
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS
 provision would lead to nullity of the provisional attachment order and it would be
unsustainable.17 Thus in the instant case as the reasons were not recorded in writing shows
that the Deputy Director acted in an arbitrary way not only in attaching the property of Dennis
Wayne but also the independent properties of his family members, which is not mere an
irregularity but an illegality which should vitiate the entire proceedings.

3. THAT THE PROVISIONAL ATTACHMENT OF PROPERTIES WHICH WERE PURCHASED

MUCH PRIOR TO, NOT ONLY THE COMMISSION OF ALLEGED OFFENCE BUT ALSO
INTRODUCTION OF THE PMLA IS NOT SUSTAINABLE.

19. It is humbly submitted before this Hon’ble court that the deputy director has provisionally
attached some properties of Dennis Wayne his family members which were bought prior to
commission of alleged offence. The alleged offence as per FIR was committed during the
period of 28.02.2015 to 26.09.2017, where it was stated that he had invested huge amounts of
money in purchasing life insurance still the respondent attached the properties which were
bought in 1999 and 2001.
20. The petitioner wants to humbly submit before this Hon’ble court that in the case of Seema
Garg vs. Deputy Director18, the court held that the property acquired cannot be attached prior
to the commission of scheduled offence such as criminal offence or introduction of Prevention
of Money Laundering Act (PMLA), unless the property obtained from the offence is held or
taken outside the country. In the present case as the properties so attached were not held or
taken outside the country, the same property cannot be attached as they were acquired proper
to commission of offence.
21. It is also submitted before this Hon’ble court that the properties which were purchased in 1999
and 2001 under name of Dennis Wayne and his wife Elisa Wayne respectively cannot be
attached as these properties were bought prior to the introduction of the Prevention of Money
Laundering Act, 2002 which came into force from 01.07. 2005.
22. In the case of Obulapuram Mining Company Pvt Ltd v Joint Director Directorate of
Enforcement Government of India19, the court held that a person cannot be tried for an offence
under the act for the period when the said offence was not inserted in the schedule of offences

17
Kranti Associates v. Masood Ahmed Khan (2010) 9 SCC 496
18
2020 Indlaw PNH 190
19
2017 SCC OnLine Kar2304.

6
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS
 under the act. The court held that this would deny the writ petitioner the protection offered by
Article 20(1) of the Constitution, which is a fundamental right guaranteeing that "no person
shall be convicted of any offence except for violation of the law in force at the time of the
commission of the offence". In light of the above judgment, it was therefore held that the
Prevention of Money Laundering Act, being a penal statute, cannot be applied retrospectively.
23. In the case of Mahanivesh Oils & Foods Pvt Ltd v Directorate of Enforcement20, the court laid
down that the Prevention of Money Laundering Act cannot be read as to empower the
authorities established under the act to initiate proceedings in respect of money-laundering
offences before July 1 2005 (when the act came into force) or before the related crime is
included as a scheduled offence under the act. The court stated that "unless such acts have
been committed after the Act came into force, an offense of money-laundering punishable
under Section 4 would not be made out. In the present case as the properties were bought prior
to introduction of act shows that deputy director attached the said properties arbitrarily.
24. It is also submitted before this Hon’ble court that charges which are bought under the Section
Sections 13(2) r/w 13(1)(e) of The Prevention of Corruption Act, 1988 are also not sustainable
regarding these properties as the Dennis Wayne was a public servant working under
Government of Pernitia from 2015- 2017 and the said properties were purchased prior to this
period.

4. THAT THE SHOW CAUSE NOTICE ISSUED BY ADJUDICATION AUTHORITY WHICH DOES
NOT CONTAIN ‘REASONS TO BELIEVE’ IS NOT MAINTAINABLE UNDER THE PREVENTION
OF MONEY LAUNDERING ACT 2002.

25. It is humbly submitted before this Hon’ble court that here in this case the respondent i.e
Adjudicating Authority while issuing the show cause notice to Dennis Wayne and Bruce
Morgan did not communicated the “reasons for belief” on which they relied their allegations,
which is prerequisite for sending a show a notice under Section 8(1) of Prevention of Money
laundering Act, 2002.
26. It is submitted before this Hon’ble court that “reason to believe” has to be recorded both under
Section 5(1)by Director or deputy director and under Section 8(1) by Adjudicating Authority
of PMLA. This reason to believe gives an enormous and arbitrary power to adjudicating

20
2016 SCC OnLine Del 475.

7
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS
 officer and it is also believed that these power conferred to the adjudicating officer would be
exercised within the ambit of law. In the case of Ramani Mistry vs. The Deputy Director
Directorate of Enforcement21 The word "Reason to Believe" is not same as suspicion or doubt.
Belief is a higher level of the state of mind. When it is said that a person has “Reason to
Believe”, it means that the circumstances and facts known to him are such that a reasonable
man, by probable reasoning, can conclude or infer regarding the nature of the thing concerned.
It may not be an absolute conviction or inference. But it may be a possible conclusion or prima
facie conclusion.
27. In the case of C.B. Gautam vs. Union of India22, a Constitution Bench of the Hon’ble Supreme
Court of India held that the reasons to be recorded in writing shall not only be incorporated in
the order but also shall be communicated to the affected parties. Here in the instant case the
reason to believe was not recorded and the same was not communicated to the petitioners
including Dennis Wayne’s family member as to why there individual ownership were
attached.
28. In the case of J. Sekar v. Union of India23, it was held that there are two reasons to believe.
One recorded by the officer passing the order under Section 5(1) PMLA and the other recorded
by the AA under Section 8(1) PMLA. Both these reasons to believe should be made available
to the person to whom notice is issued by the AA under Section 8(1) PMLA. The failure to
disclose, right at the beginning, the aforementioned reasons to believe to the noticee under
Section 8(1) PMLA would not be a mere irregularity but an illegality. A violation thereof
would vitiate the entire proceedings and cause the order of provisional attachment to be
rendered illegal.
29. In the case of ICICI Bank Ltd. and Ors. v. The Joint Director, Directorate of Enforcement24,
Mumbai it was held that the words "reason to believe" used in S. 8(1) of the Act cast an
onerous duty on the Adjudicating Authority, while deciding to act under the said Section and
before issuance of notice under Section 8(1) of the Act. The guidelines of recording the reason
to believe have been laid down in various judgements of Apex Court and High Courts. It is
held time and again by the said Hon’ble Courts directing that the approach should be not the

21
FPA-PMLA/296/KOL/2011
22
1993(1) SCC 78
23
2018 SCC Online Del (6523)
24
MANU/ML/0093/2019

8
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS
 subjective satisfaction of the officer concerned. Such power given to the officer concerned is
not an arbitrary power and has to be exercised in accordance with the restraints imposed by
law. The belief must be that of an honest and reasonable person based upon reasonable
grounds, the officer concerned may act on direct or circumstantial evidence but not on mere
suspicion or the allegations mentioned in the FIR or charge-sheet so that the same can be
scrutinized in order to verify whether they are relevant and germane or not. He cannot proceed
further on the basis of opinion already formed by someone else. The officer who is supposed
to write down his reasons to believe independently applying his mind in every case. It should
not be merely a mechanical reproduction of the words mentioned in the statute in order to
complete the formality as PMLA cases (being independent proceeding) as submitted on behalf
of the respondent. If the person concerned are more than one, the officer authorized is to record
the independent/separate, reasons to believe for each 'person concerned'. The case also stated
that:
If no valid reasons to believe are recorded, the issuance of notice to the 'person concerned' or
without going into the material and non-application of mind, the same would be considered
as invalid notice. It is settled law that if the Show-Cause notice fails to fulfill the basic
ingredients the Show-Cause Notice itself is bad in law. Thus, it is vitiating the proceedings.
30. Furthermore in the case of J. Sekar v. Union of India25 it was also held that at the stage of
issuance of notice under Section 8(1) PMLA all the relevant material on record which
constituted the basis for reasons to believe may not be made available. But if the noticee
demands to see those materials on record, the AA is bound to make available all those
materials on record to them. It is most likely that without such access to such material on
record, the noticee will be unable to file an effective reply. Therefore, there cannot be any
denial of access to the noticee of the materials on record. If there is any sensitive material, it
can probably be redacted before issuing copies thereof, after nothing the reasons for such
redaction in writing in the file. But even such redacted material will have to be nevertheless
shown to the noticee.
31. In the case of Satyen Suresh Gathani and Ors. v. The Deputy Director, Directorate of
Enforcement, Mumbai26 it was held that, each party should be given equal chance to succeed,

25
2018 SCC Online Del (6523)
26
MANU/ML/0021/2019

9
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS
 even the party may be on weak wickets. Therefore the court held that the appellants are entitled
to know the allegations against them in the reason to believe and are entitled to challenge the
same in accordance with law.
The parties in every case are entitled to apply the principles of equal opportunity to address
their respective cases on merit before court regardless of any stringent law. A level playing
field is concept of fairness where each party has an equal chance to succeed. Under this
concept, one party cannot take advantage against other party (who is unheard) in the absence
of reasons of allegations and to stop to prove its innocence. Unfairness can never be shown
to any party not to know allegations raised against him by any agency/authority/tribunal,
otherwise it would be called one sided action. Thus, each party should be given equal chance
to succeed, even the party may be on weak wickets. Thus, I am of the considered view that the
appellants are entitled to know the allegations against them in the reason to believe and are
entitled to challenge the same in accordance with law. Mere denial to supply copy shall be
treated as injustice to the parties and curtail the fair defense and trial in the matter.
32. Therefore it is humbly submitted before this Hon’ble court that on the basis of the afore-
mentioned precedents the absence of reasons to believe in the show cause should vitiate the
proceedings as it is against the natural justice because the petitioners cannot ascertain as on
which basis they have be charged for the alleged offence under the PMLA,2002 and also due
to absence of this reasons of believe, the aggrieved party cannot frame an effective reply as
they don’t have the knowledge of reasons for which they are being tried for alleged offence.

5. THAT THE ORDER OF PROVISIONAL ATTACHMENT OF THE PROPERTY AND THE ORDER
OF THE ADJUDICATING AUTHORITY ISSUING SHOW CAUSE NOTICES WERE PASSED IN
VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE AND WITHOUT PROVIDING
ADEQUATE OPPORTUNITY OF BEING HEARD.

33. It is humbly submitted before this Hon’ble Court that the order of provisional attachment of
property by deputy director under Section 5(1) and order of the adjudicating authority issuing
show cause notices were passed in violation of the principles of Natural Justice.
34. The order of provisional order was in violation of natural justice as the said order was passed
without taking into consideration of the individual ownership of the family members of the
Dennis Wayne and the Deputy Director attached the said properties under the name of Dennis
Wayne after directing him to appear before Enforcement Directorate but no summons were

10
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS
 issued the family members who had the separate ownership in property which was attached
by Enforcement Directorate too. Some of these properties were also purchased not only prior
to commission of offence but also the prior to introduction of act shows that there was
violation of natural justice against petitioners by issuing the said provisional order under
Section 5(1) of PMLA,2002.
35. It is also submitted before this Hon’ble court that under the proviso of Section 8 (1) it has been
clearly said that where a notice under this sub-section specifies any property as being held by
a person on behalf of any other person, a copy of such notice shall also be served upon such
other person and further that where such property is held jointly by more than one person,
such notice shall be served to all persons holding such property. But in the instant case the
adjudicating authority violated the Section (8)1 of PMLA as the notice was not issued to the
family members of the Dennis Wayne whose properties were attached. The adjudicating
officer passed the provisional order of attachment without hearing the family members and
hence the said order of issuing show cause notice was passed in violation of natural justice as
it did not provide adequate opportunity of being heard.
36. In the case of Panchali Roy Choudhury v. Union of India 27, Guwahati High Court stayed the
order issued by the Assistant Director of Enforcement Directorate, Guwahati because the
impugned order was in the violation of section 8(1) of PMLA as no notice was served upon
her though the law makes it mandatory that if the property is jointly held by more than one
person each of those person must be served with notices. The gist of the case was that the
husband of the present petitioner was summoned by Information Directorate. Thereafter, the
Assistant Director of Enforcement Directorate, Guwahati Zonal Office issued a notice upon
the petitioner to vacate the properties of which she is a joint owner with her father. Now, the
petitioner has claimed that no such notice under section 8(1) of the Prevention of Money
Laundering Act, 2002 was served upon her though the law makes it mandatory that if the
property is jointly held by more than one person each of those person must be served with
notices. In this case it was held that section (8)1 of PMLA,2002 was not complied with.
Therefore, as an interim measure the operation of the notice which was issued by the Assistant
Director, enforcement Directorate, Guwahati Zonal Office was stayed till returnable date.

27
2020 SCC OnLine Gau 4175.

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WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS
37. In the case of ICICI Bank Limited, Represented by its Authorised Signatory v. Joint Director
and Others28 it was held by the Madras High Court that non-compliance of the section 8(1) of
the PMLA would lead to the illegality of the order passed by the Adjudicating Authority. In
this case also, despite the third respondent having knowledge that the fixed deposit standing
in the name of the fourth respondent is lying with the petitioner bank, the third respondent
before passing of the impugned orders has not issued notice to the petitioner bank and hence,
this Court is of the considered view that the procedure contemplated under the first proviso to
section 8(1) of the Prevention of Money Laundering Act, 2002 has been violated by the third
respondent. In view of the non-compliance of the first proviso of section 8(1) of the Act, 2002,
the petitioner has not been given any opportunity to explain as to how the fixed deposit receipt
standing in the name of the fourth respondent cannot be attached. For the foregoing reasons,
the impugned order of the third respondent is hereby quashed.
38. Thus it is humbly submitted before this Hon’ble court that the impugned order passed by the
Adjudicating officer confirming the provisional order of attachment by Deputy Director
violated Section 8(1) of PMLA as the notice weren’t sent to the family members of the Dennis
Wayne though there properties were attached without hearing them, thus it is in violation of
principle of Natural Justice. Section 8(1) of the PMLA mandates the serving of the notices to
the persons, firstly, on whose behalf the property is being held by any other person, secondly,
to all person holding such property, in the case of joint ownership. So in present case
concerned, though this section specifically does not talk about the independent ownership and
attachment of the properties belonging to the family member, but the intent of this section is
very clear that is ‘No party relating to that concerned property shall remain unheard’. But at
the present case in hand the family member who owned the property, was not given any
opportunity of being heard before the attachment of property. Hence, it violates the intent of
this section 8(1) of PMLA and also it is clear from the abovementioned cases that violation of
this section leads to the illegality of the orders passed by the concerned authorities.

28
2020 SCC OnLine Mad 3109.

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WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS
6. THAT THE BAIL SHOULD BE GRANTED TO THE PETITONER UNDER SECTION 439 OF
CR.P.C.

39. It is humbly submitted before this Hon’ble Court that under the Section 65 of PMLA it is
provided that ‘The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply,
in so far as they are not inconsistent with the provisions of this Act, to arrest, search and
seizure, attachment, confiscation investigation, prosecution and all other proceedings under
this Act.’29 But at the same time section 45 of the PMLA restrict the invocation of the Cr.P.C.
in matters related to bail.

[6.1]SECTION 45 OF PMLA DOES NOT CONTAIN ANY BAR

40. In the case of Nikesh Tarachand Shah vs. Union of India & Anr Court30, S. 45(1) of PMLA,
2002 was challenged insofar it required fulfilment of two essential conditions for the grant of
bail to the accused. Firstly, the stipulated threshold of three years and above in Section 45(1)
of the Act was manifestly arbitrary and discriminatory and without any basis and therefore
violative of Article 14 of the Constitution of India. Secondly, such classification resulted in
anomalous situations where a person was being denied bail because of the ‘twin conditions’
on the predicate offense while being tried under PMLA. Thirdly, a person may be enlarged on
anticipatory bail for a scheduled offense but can only be enlarged on bail under PMLA only
after the satisfaction of the ‘twin conditions’. Lastly, the twin conditions were arbitrary,
discriminatory, and against Article 21 of the Constitution on India, since they required the
accused to disclose their defence at the stage of arrest itself.
41. The SC struck down the aforementioned provision on the ground that the same is violative of
the Art. 14 and 21 of the Constitution. The SC thereby directed the respective courts to decide
the bail applications without application of the conditions contained in S. 45(1). the twin
conditions under Section 45(1) were arbitrary and discriminatory in nature.
42. Pursuant to this judgment, the GOI has amended S. 45(1) of the PMLA by adding the words
"under this Act" to Sub-section (1) of S. 45 of the PMLA Act and deleting the words
"punishable for a term of imprisonment of more than 3 years under Part A of the Schedule",
as one of the grounds for striking down the section in the said judgment was that the

29
Sec. 65, Prevention of Money Laundering Act,2002.
30
(2018) 11 SCC1

13
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS
 appropriate Court while deciding the bail application should have reasonable grounds for
believing that the accused is not guilty of a predicate offence instead of an offence under
PMLA.
43. In the case of Vinod Bhandari vs. Assistant Director, Directorate of Enforcement31 the HC
held that despite the amendment in the definition, the S. 45(1)(ii) of the Act has not been
resurrected. It can be contended that rigors provided under Section 45(1) of the PMLA for the
grant of the bail are not applicable as the said section has not been revived and only the
provisions of Section 439 of the Code of Criminal Procedure, 1973 would be applicable for
deciding the bail of the accused.
44. In the Case of Sameer M. Bhujbal v. Assistant Director, Directorate of Enforcement 32 , the
Bombay High Court held: “It is to be noted here that, after effecting amendment to Section
45(1) of the PMLA Act the words “under this Act” are added to Sub Section (1) of Section 45
of the PMLA Act. However, the original Section 45(1)(ii) has not been revived or resurrected
by the said Amending Act.. It is further to be noted here that, even Notification dated
29.3.2018 thereby amending Section 45(1) of the PMLA Act which came into effect from
19.4.2018, is silent about its retrospective applicability. It is to be further noted here that, the
original Sub-section 45(1)(ii) has therefore neither revived nor resurrected by the Amending
Act”
45. In the case of Ahilya Devi v. The State Of Bihar33 Justice C.S. Singh of the Patna High Court
held that the amendment does not resurrect twin conditions provided for under section 45(1)
which were struck down by Supreme Court in 2017 and therefore, for deciding bail
applications under the Act, only considerations are, prima facie material available to fortify
commission of an offense, gravity of the offense, severity of punishment, chances of fleeing
and tampering with evidence. In other words, only section 439 Cr.P.C has to be considered.
Here in the present case the prima facie material are of dubious nature as the some properties
of Dennis Wayne has been attached which are not aonly in his possession but some are bought
prior to commission of offence. Also the while attaching the property the reason to belief was
not present shows that the prima facie evidence were of dubious nature.

31
M.Cr.C. No. 34201/2018
32
2019 SCC OnLine Bom 7574
33
Criminal Miscellaneous No. 41413 of 2019

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46. So it is clear from the abovementioned cases that for deciding bail applications under the Act,
only considerations are, prima facie material available to fortify commission of an offense,
gravity of the offense, severity of punishment, chances of fleeing and tampering with
evidence. In other words, only section 439 Cr.P.C has to be considered.

[6.2] SECTION 439 OF THE CR.P.C. IS APPLICABLE IN MATTERS RELATED TO BAIL UNDER PMLA

47. It is submitted before this Hon’ble Court that in the case of Vinod Bhandari vs. Assistant
Director, Directorate of Enforcement34 as it was held that Section 45(1) of the PMLA for the
grant of the bail are not applicable as the said section has not been revived and only the
provisions of Section 439 of the Code of Criminal Procedure, 1973 would be applicable for
deciding the bail of the accused.
48. In the case of Dataram Singh vs. State of Uttar Pradesh & Anr 35, held
“A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning
thereby that a person is believed to be innocent until found guilty. However, there are
instances in our criminal law where a reverse onus has been placed on an accused with regard
to some specific offences but that is another matter and does not detract from the fundamental
postulate in respect of other offences. Yet another important facet of our criminal
jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a
prison or in a correction home (whichever expression one may wish to use) is an exception.
Unfortunately, some of these basic principles appear to have been lost sight of with the result
that more and more persons are being incarcerated and for longer periods. This does not do
any good to our criminal jurisprudence or to our society”
49. It is also submitted before this Hon’ble Court that in the case of State of Maharashtra vs.
36
Sitaram Popat Vital has stated few factors to be taken into consideration, before granting
bail, Firstly, the nature of accusation and the severity of punishment in case of conviction and
the nature of supporting evidence. Secondly, reasonable apprehension of tampering of the
witness or apprehension of threat to the complainant and thirdly, prima facie satisfaction of
the Court in support of the charge.

34
M.Cr.C. No. 34201/2018
35
(2018) 3 SCC 22
36
AIR 2004 SC 4258

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50. In State of Maharashtra v. Animal Punjaji Shah37, it has been held that in matters of allegations
of tampering with evidence or absconding, there must be ‘absolute certainty’ an accused can
be incarcerated on that ground. It is submitted that mere unproven statement of the
Investigating Agency cannot be permitted to prejudice the liberty of a citizen of this country.
The Petitioner has made no attempt to suborn witnesses, tamper with documentary evidence,
or in any other manner pollute or obstruct the judicial process and further, the Petitioner
undertakes that he shall not, tamper with evidence or influence witnesses, nor is there any
reasonable or justifiable apprehension thereof. In the present case also all the evidence related
to petitioners where in custody of the Respondent so there was no absolute certainty that
petitioner that is Dennis Wayne or Bruce Morgan will be able to tamper with evidence as the
same were in custody of respondent.
51. It is also submitted that Dennis Wayne and Bruce Morgan were illegally arrested by
Enforcement Directorate. Respondent has violated the procedure laid down in the PMLA since
the initiation of the proceeding. Firstly. Deputy Director had attached the property belonging
to the family member without deciding the independent ownership of the concerned property
and had not even communicated the reasons to believe in writing. Secondly, the attachment
of the property purchased in the year of 1999 and 2001 is utterly illegal as they were bought
prior to the commission of offence and also the introduction of PMLA, 2002. Thus were no
the proceeds of crime. Thirdly, Adjudicating Authority had violated the procedure given under
the section 8(1) of the PMLA by not serving the notice to the party concerned whose properties
had been attached. Lastly, Adjudicating Authority has passed an exparte order confirming the
provision order of attachment which is a violation of natural justice as they did not even hear
petitioners.
52. It is also submitted that the arrest of the Dennis Wayne and Bruce Mogan under Section 19(1)
was premature and illegal as there was no reasons to believe which was also not informed to
petitioners earlier and the ex-parte order was also passed by adjudicating officer without
hearing Dennis Wayne and Bruce Morgan.
53. It is humbly submitted before this Hon’ble court that there is also no possibility of having
reasonable apprehension of tampering of the witness as the same are in custody of Respondent.
The petitioner is facing the brutality of Adjudicating Authority as they have attached the

37
(1969) 3 SCC 904

16
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS
property without following proper procedure causing gross injustice to petitioner. So it is
humbly submitted before this Hon’ble court to grant a bail under section 439 of CR.P.C.

17
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS
 PRAYER

Therefore it is prayed, in light of the issues raised, arguments advanced, and authorities cited, may
this Hon'ble Supreme Court be pleased to adjudge and declare that:

1. The writ petition as well as a bail application is maintainable before this court.

2. The order of provisional attachment of property is in violation of law and procedure laid
down in the PMLA.

3. The attachment of the property much prior to the introduction of the PMLA is not
sustainable.

4. The Adjudicating Officer had not communicated the Reasons to Belief and this is the
violation of the law.

5. The exparte order passed by the Adjudicating Authority is a violation of Natural Justice.

6. The High court has enormous power under section 439 of Cr.P.C. to grant the bail to the
petitioner.

And/Or
Pass any other Order, Direction, or Relief that it may deem fit in the Best Interest
of Justice, Fairness, Equity and Good Conscience.
For This Act of Kindness, the Petitioner Shall Duty Bound Forever Pray.

Sd/-

(Counsel for the Petitioner)

xvi
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS