INDIA Law and Practice Contributed by: Vijayendra Pratap Singh, Asif Ahmed, Bhanu Jindal and Khushi Mittal, AZB & Partners
• if the offence be committed, be punished with imprisonment for a term of up to seven years and a fine; or • if the offence is not committed, with imprisonment for a term of up to three years and a fine. When the concealment is carried out with respect to any other offence punishable with imprisonment, such concealment is punishable with imprisonment for a period of one-fourth of the longest term of such imprisonment if the offence is committed, and one- eighth of the longest term of such imprisonment if the offence is not committed. 3.12 Aiding and Abetting In cases of common intent offences, the BNS upholds the principle of joint liability. This means that if two or more individuals are involved in the commission of an offence, each participant is treated as if they commit - ted the act individually. Consequently, all parties may be held liable for the offence committed, regardless of the extent of their involvement. Thus, if an offence occurs as a result of the abettor’s instigation or assistance, the abettor is punishable in the same manner as the principal offender. Under the BNSS, a person who conspires with or assists another to commit a corporate offence can be held liable. The BNS has expanded the concept of abet - ment to include foreign entities: abetment within India of an offence committed abroad, and abetment from outside India of a crime committed within India, are both now punishable under the BNS. A conspiracy occurs when two or more persons agree to perform an illegal act or to carry out a legal act using illegal means. Under the BNS, any individual involved in a criminal conspiracy to commit an offence punishable by death, life imprisonment, or rigorous imprisonment for two years or more will face the same penalties as if they had abetted the offence. Certain statutes, such as the PCA, impose additional liabilities for abetment in corporate offences. 3.13 Money Laundering The PMLA is India’s primary legislation dealing with the offence of money laundering, with the ED being the relevant prosecution agency. The PMLA is based
on the international anti-money laundering initiative by the FATF. In order to invoke the PMLA, the ED needs to establish two foundational facts: (i) that a sched - uled offence has been committed (which includes offences under the BNS, anti-narcotics laws, anti- terrorism laws, and evasion of indirect tax); and (ii) that it has resulted in the generation of “proceeds of crime” (PoC). PoC refers to any property that has been derived as a result of the predicate offence. The test here is that the property should have been derived as a result of the criminal activity relating to a scheduled offence. The process or activity can be in any form, be it one of concealment, possession, acquisition, use of PoC, or claiming it to be untainted property. Any involvement in even one of these processes or activities would constitute money laundering. Under Section 3 of the PMLA, any person who direct - ly or indirectly attempts, assists, participates, or is involved in any process or activity connected with the proceeds of crime shall be guilty of the offence of money laundering. Such involvement includes the concealment, possession, acquisition, or use of the proceeds of crime, as well as projecting or claiming such proceeds to be untainted property. In the event that the person named in the criminal activity relating to a scheduled offence is finally dis - charged, acquitted by a court of competent jurisdic - tion, or if the scheduled offence is quashed, then PMLA prosecution falls away. The offence of money laundering is considered to be a continuing offence, the cause of action for which renews with every day of the possession of PoC. For details on prosecution and enforcement authori - Environmental offences in India are principally gov - erned by the Environmental Protection Act, 1986 (EPA). The EPA penalises violations of environmental norms, including breaches of rules framed by the cen - tral government related to industrial operations, han - dling hazardous substances, and disclosure require - ments for excess pollution discharge. Notably, every ties, refer to 2.6 Prosecution . 3.14 ESG-Related Offences
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