ORDER : A. Badharudeen, J. Crl.M.C.Nos.6757/2025 and 6764/2025 have been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 , (hereinafter referred to as ‘ BNSS ’ for short) by accused Nos.1 and 2 in Crime No.VC-1/2019 of VACB, Ernakulam, challenging common order in Crl.M.P.No.1682/2024 & Crl.M.P.No.1403/2024 dated 23.05.2025 in the above case. 2. Crl.M.C.No.5590/2025 is at the instance of the accused in V.C.No.6/2021/SCK of VACB, Kozhikode. In this Crl.M.C., order passed in Crl.M.P.No.346/2023 in the above crime, ordering interim attachment is put under challenge. 3. Heard the learned counsel for the petitioners as well as the learned Public Prosecutor, representing the VACB. Perused the relevant documents. 4. I shall address the issue involved in Crl.M.C. Nos.6757/2025 and 6764/2025 at first. 5. In this case, the prosecution alleges that the petitioners amassed disproportionate assets to their known sources of income, to the tune of Rs.28,78,399/-, (Rupees twenty eight lakh seventy eight thousand three hundred and ninety nine only), which would come to 64% of the excess of the total income, for which they could not account for. On this premise, the prosecution alleges that the accused committed offences punishable under Section 13 (1) (e) r/w Section 13 (2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the ‘PC Act’ for short) and Section 13 (1)(b) r/w 13(2) of the Prevention of Corruption (Amendment) Act, 2018 (hereinafter referred to as the ‘PC Act, 2018’ for short). The genesis of the case to be borne out from the application filed by the prosecution before the Special Judge, seeking attachment of properties as stated in paragraph No.9 of the petition is as under: “9. The immovable properties acquired during the check period has already sold by the accused as per Document number 5310/2014, 5311/2014 of SRO Cherupulassery and as per Document No.2127/2012 of SRO Kadambazhipuram. Three properties 1) Thrikandiri-I Village Sry 102/4 as per SRO Cherpulassery Document No.2495/2011 (23.25 cent) in the name of Smt.Sajitha V.P., 2) Thrikadiri-I Village Sry No.-59/1 as per SRO Cherpulassery Document No.2003/01/13 in the name of Hamsa V. (25.77 cent), 3) Kadampazhipuram -I village Sry No.143/7 of SRO Kadambazhipuram Document No.2126/1/2012 in the name of Sajitha V.P. (194.73 cent) acquired during the check period are also likely to be sold. Hence, the I.O. Submitted an Affidavit and application before the Hon'ble EC & SJ Court, Thrissur that necessary steps to confiscate the above mentioned three properties and Rs.9,65,330/- (Rupees Nine lakh Sixty five Thousand Three hundred and Thirty only). This petition is pending before this Hon'ble Court as CMP No.-1403/2024.” 6. The trial court issued notice, for which the petitioners, who are the respondents therein filed objection and finally, on appraisal of the matter in issue, the learned Special Judge ordered to attach the above immovable properties by invoking power under Section 18A of the PC Act, 2018. 7. Multiple contentions are raised at the instance of the petitioners as well as the learned Public Prosecutor. Coming to the crux of the dispute, the same centers on Section 18A of the PC Act, 2018, introduced with effect from 26.07.2018, whereby it has been provided as under: “18A. Provisions of Criminal Law Amendment Ordinance, 1944 to apply to attachment under this Act. (1) Save as otherwise provided under the Prevention of Money Laundering Act, 2002, (15 of 2003), the provisions of the Criminal Law Amendment Ordinance, 1944 (Ord.38 of 1944) shall, as far as may be, apply to the attachment, administration of attached property and execution of order of attachment or confiscation of money or property procured by means of an offence under this Act. (2) For the purposes of this Act, the provisions of the Criminal Law Amendment Ordinance, 1944 (Ord.38 of 1944) shall have effect, subject to the modification that the references to “District Judge” shall be construed as references to “Special Judge” 8. As pointed out by the learned Special Public Prosecutor, this Court addressed the application of Section 18A of the PC Act, 2018, in the decision reported in Mac Charles (India) Ltd. (M/s.) v. State of Kerala reported in 2021 (5) KHC 421 and held in paragraph No.34 that, now, after the introduction of Section 18A (2) in the Act, it appears that the dichotomy of jurisdiction of the District Judge and the Special Judge, which was explained by the Division Bench in Dr.V.K.Rajan v. State of Kerala ( 2007 (4) KHC 828 ), has disappeared. The Division Bench had noticed that, in Section 29 of the Act, it was not mentioned that the words 'District Court' wherever appear in the Ordinance shall be substituted by 'Special Court'. The Division Bench had noticed that, in Section 29 of the Act, it was not mentioned that the words 'District Court' wherever appear in the Ordinance shall be substituted by 'Special Court'. The change now occurred by the introduction of Section 18A (2) in the Act is exactly what the Division Bench had referred to above. Section 18A (2) of the Act states that, for the purposes of the Act, the provisions of the Ordinance shall have effect, subject to the modification that the reference to “District Judge” shall be construed as reference to “Special Judge”. Therefore, the expression 'while trying the offence' in Section 5(6) of the Act stands expanded by the words “for the purposes of this Act” contained in Section 18A of the Act. It means that, with effect from 26.07.2018, even at the pre-trial stage, the Special Court has jurisdiction to entertain an application under Section 3(1) of the Ordinance. 9. It is argued by the learned counsel for the petitioners that as early in the year 1962, in the decision in State of West Bengal v. S.K.Ghosh , reported in 1962 SCC OnLine SC 53 : SIR 1963 SC 255, the Apex Court considered the provisions of the Criminal Law Amendment Ordinance, 1944 (hereinafter referred to as 'the Ordinance' for short) and in paragraph No.14, the Apex Court observed that the Ordinance came into force on 23-8-1944, would take the case out of the ambit of Article 20(1), for we have come to the conclusion that the forfeiture provided under Section 13 (3) is not a penalty at all within the meaning of Article 20(1) and the second argument urged on behalf of the appellant must prevail. Now the 1944 Ordinance is an independent Ordinance and is not an amendment to the 1943 Ordinance. It is true that the Ordinance is termed "the Criminal Law Amendment Ordinance"; but its provisions will show that it deals mainly with recovery of money or property belonging to Government procured by the offender by means of the offence. An analysis of the provisions of the 1944 Ordinance will show this clearly. It is true that the Ordinance is termed "the Criminal Law Amendment Ordinance"; but its provisions will show that it deals mainly with recovery of money or property belonging to Government procured by the offender by means of the offence. An analysis of the provisions of the 1944 Ordinance will show this clearly. Section 3 provides for application for attachment of property; Section 4 provides for an ad interim attachment; Section 5 provides for investigation of objections to attachment; Section 6 provides for attachment of property of mala fide transferees; Section 7 provides for execution of orders of attachment and Section 8 for security in lieu of attachment; Section 9 for administration of attached property and Section 10 for the duration of attachment. Section 11 provides for appeals. Then come Sections 12 and 13. Lastly there are Section 14 which bars certain proceedings and Section 15 which protects certain actions taken in pursuance of the Ordinance. It will therefore be clear that the Ordinance provides for no punishment or penalty; all that it provides is attachment of the money or property procured by the offence or any other property of the offender if the above property is not available and the purpose of the attachment is to prevent the disposal or concealment of such property. Section 13 (3) with which we are particularly concerned lays down that the District Judge shall order that from the property of the convicted person attached under this Ordinance or out of the security given in lieu of such attachment, there shall be forfeited to His Majesty such amount or value as is found in the final judgment or order of the criminal courts in pursuance of Section 12 to have been procured by the convicted person by means of the offence, together with the costs of attachment as determined by the District Judge. It is further provided that where the final judgment or order of the criminal court has imposed or upheld a sentence of fine on the said person, the District Judge may order without prejudice to any other mode of recovery, that the said fine shall be recovered from the residue of the said attached property or of the security given in lieu of attachment. The forfeiture by the District Judge under Section 13 (3) cannot in our opinion be equated to forfeiture of property which is provided in Section 53 of the Indian Penal Code. The forfeiture provided in Section 53 is undoubtedly a penalty or punishment within the meaning of Article 20(1); but that order of forfeiture has to be passed by the court trying the offence, where there is a provision for forfeiture in the section concerned in the Indian Penal Code. There is nothing however in the 1944 Ordinance to show that it provides for any kind of punishment for any offence. Further it is clear that the Court of District Judge which is a Principal Court of Civil Jurisdiction can have no jurisdiction to try an offence under the Indian Penal Code. The order of forfeiture therefore by the District Judge under Section 13 (3) cannot be equated to the infliction of a penalty within the meaning of Article 20 (1). Article 20(1) deals with conviction of persons for offences and for subjection of them to penalties. It provides firstly that "no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence". Secondly, it provides that no person shall be "subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence". Clearly, therefore Article 20 is dealing with punishment for offences and provides two safeguards, namely, (i) that no one shall be punished for an act which was not an offence under the law in force when it was committed, and (ii) that no one shall be subjected to a greater penalty for an offence than what was provided under the law in force when the offence was committed. The provision for forfeiture under Section 13 (3) has nothing to do with the infliction of any penalty on any person for an offence, If the forfeiture provided in Section 13 (3) were really a penalty on a convicted person for commission of an offence we should have found it provided in the 1943 Ordinance and that penalty of forfeiture would have been inflicted by the criminal court trying the offender. 10. 10. As per the decision, placed by the learned counsel for the petitioners, in Union of India and Another v. Ganpati Dealcom Private Limited , reported in (2023) 3 SCC 315, the Apex Court considered Section 3 of the Prohibition of Benami Property Transactions Act, 1988 and observed in paragraph No.127 of the said case as under: “127.1 Section 3(2) (sic Section 3) of the unamended 1988 Act is declared as unconstitutional for being manifestly arbitrary. Accordingly, Section 3(2) of the 2016 Act is also unconstitutional as it is violative of Article 20(1) of the Constitution. 127.2 In rem forfeiture provision under Section 5 of the unamended 1988 Act, prior to the 2016 Amendment Act, was unconstitutional for being manifestly arbitrary. 127.3 The 2016 Amendment Act was not merely procedural, rather, prescribed substantive provisions. 127.4 In rem forfeiture provision under Section 5 of the 2016 Act, being punitive in nature, can only be applied prospectively and not retroactively. 127.5 The authorities concerned cannot initiate or continue criminal prosecution or confiscation proceedings for transactions entered into prior to the coming into force of the 2016 Act, viz.25-10.-2016. As a sequence of the above declaration, all such prosecutions or confiscation proceedings shall stand quashed.” In fact, this judgment was recalled by the Apex Court in a subsequently filed review petition, as per order dated 18.10.2024, in the decision in Union of India and Another v. Ganpati Dealcom Private Limited , reported in (2024) 167 taxmann.com 525 (SC). Thus the learned counsel for the petitioners placed a decision which is not in existence in the eye of law. 11. According to the learned counsel for the petitioners, while passing the common order in Crl.M.P.Nos. 1682 /2024 and 1403/2024, the learned Special Judge failed to take note of the provisions of the Ordinance. According to him, under Section 13 (3) of the Ordinance, the amount to be forfeited or recovered shall be limited to the fine imposed as per the judgment or order of a criminal court, together with the cost of the attachment, and nothing beyond that. 12. Even though it is submitted by the learned counsel for the petitioners that Section 18A of the PC Act, 2018, has been introduced with effect from 26.07.2018, the crime in Crl.M.C.No.5590/2025 was pertaining to the check period upto 31.12.2017, i.e., before the amendment, and therefore, the same could not be applied retrospectively. 12. Even though it is submitted by the learned counsel for the petitioners that Section 18A of the PC Act, 2018, has been introduced with effect from 26.07.2018, the crime in Crl.M.C.No.5590/2025 was pertaining to the check period upto 31.12.2017, i.e., before the amendment, and therefore, the same could not be applied retrospectively. The learned Public Prosecutor justified the orders in tune with the mandate of the Ordinance and placed a decision of the Apex Court in Naveda Properties Pvt.Ltd. Through its Directors v. State of Maharashtra and Another reported in 2019 (4) KHC 782, with reference to Section 13 to contend that since the ordinance was adopted by the Presidential Adaptation of Laws Order, 1950, issued under the powers conferred by clause (2) of Article 372 of the Constitution, making the Ordinance effective in the territory of India, and, therefore, continues to remain in force. 13. Having addressed the rival arguments, even though it is argued by the learned counsel for the petitioners that the Special Judge wrongly interpreted Section 18A and provisions of the Ordinance, admittedly, in Crl.M.C. Nos.6757/2025 and 6764/2025, the check period includes the period after the amendment came into force with effect from 26.07.2018, whereas the check period in Crl.M.C.No.5590/2025 is prior to the amendment, i.e., upto 31.12.2017. 14. According to the learned counsel for the petitioners, the procedure followed by the Special Judge, in attaching the entire properties without specifying the attachment for the amount involved, also without taking into consideration of the said contention, would require interference. 15. On perusal of the Ordinance, it could be gathered that by the introduction of Section 18A , the State Government has reason to believe that any person has committed any scheduled offence may, whether or not, any court has taken cognizance of the offence, authorised the making of an application of the District Judge, (here, the special Judge) within the local limits of whose jurisdiction the said person ordinarily resides or carries on business, for the attachment, under this Ordinance of the money or other property which the said person to have procured by means of the offence, or if such money or property cannot for any reason be attached or other property of the said person of value as nearly as may be equivalent to that of the aforesaid or other property. 16. 16. Section 3(3) provides that an application under Section 3(1) shall be accompanied by one or more affidavits, stating the grounds on which the belief that the said person has committed any offences is found, and the amount of money or value of other property believed to have been procured by means of an offence. The application also shall furnish the details provided under clause (a) and (b) of Section 3(3) of the Ordinance. Section 4 provides for issuance of ad-interim attachment on receipt of an application under Section 3 and Section 4(2) mandates issuance of notice to the person against whom the attachment is made with the order and records thereof. Section 5 of the Ordinance provides that on notice, if no cause is shown and no objections are made under Section 4 on or before the specific date, the District Judge, (here, the Special Judge) shall forthwith pass an order making the ad interim order of attachment absolute. 17. Section 5(2) of the Ordinance provides that if cause is shown on any objections are made as aforesaid the District Judge (here, the Special Judge) shall proceed to investigate the same, and in so doing, as regards the examination of the parties and in all other respects he shall, subject to the powers of a court in hearing a suit under the Code of Civil Procedure, 1908 and any person making an object under Section 4 shall be required to adduce evidence to show that at the date of attachment he had some interest in the property attached. 18. Section 5(3) of the Ordinance provides further that after investigation under sub-section (2), the District Judge (here, the Special Judge) shall pass an order either making the ad interim order of attachment absolute or varying it by releasing a portion of the property from attachment or withdrawing the order. 19. The order of attachment made under this provisions shall be carried into effect as may be practicable in the manner provided in the Code of Civil Procedure as mandated under Section 7 of the Ordinance. 20. 19. The order of attachment made under this provisions shall be carried into effect as may be practicable in the manner provided in the Code of Civil Procedure as mandated under Section 7 of the Ordinance. 20. Section 8 of the Ordinance provides a remedy to the person whose property has been or is about to be attached under this Ordinance may, at any time apply to the Judge to permit him to give security in lieu of such attachment and where the security offered and given is in the opinion of the Judge satisfactory and sufficient, he may withdraw or, as the case may be, refrain from passing, the order of attachment. 21. On perusal of the Rules, in comparison with the orders impugned, it is discernible that the learned Special Judge has passed the common order in a case where the amount involved is 28,78,399/-. (i.e., in VC No.1/2019). But the attachment order seems to have been passed over the entire property without considering the valuation of the property. In fact, what is the valuation of the property is not discernible from the records. Even though it cannot be held at this stage that the Special Judge ordered attachment of the property in excess of the statutory mandate since it has been provided under Section 8 of the Ordinance that a remedy is available to a person whose property has been, or is about to be, attached under the Ordinance, to permit the Judge to accept security in lieu of such attachment and the security offered and given is in the opinion of the Judge satisfactory and sufficient, on accepting the security, the Judge could withdraw the attachment if attachment already passed or refrain from passing an order of attachment if attachment not passed. Since the order of the learned Special Judge could not be found as illegal and the entire properties have been attached in a case involving disproportionate assets to the tune of Rs.28,78,399/- (as alleged by the prosecution), the attachment should be confined to the property which would fetch the said amount and not beyond that. 22. Since the order of the learned Special Judge could not be found as illegal and the entire properties have been attached in a case involving disproportionate assets to the tune of Rs.28,78,399/- (as alleged by the prosecution), the attachment should be confined to the property which would fetch the said amount and not beyond that. 22. Having held so, it is specifically ordered that the petitioners in Crl.M.C.Nos.6757/2025 and 6764/2025 are at liberty to furnish security for an amount of Rs.28,78,399/- either independently or by offering any one of the properties attached along with original title deed of the property, non- liability certificate, valuation certificate, tax receipt, possession certificate and location sketch. On production of security as stated, the learned Special Judge can consider the same in terms of Section 8 of the Ordinance and pass appropriate orders as per law. In the result, Crl.M.C.Nos.6757/2025 and 6764/2025 stand disposed of as indicated above. In Crl.M.C. No. 5590/2025, only an interim order of attachment has been passed, and upon notice, the petitioner filed an objection. Therefore, the petitioner is at liberty to raise the contention before the special court in accordance with the statutory provisions and the decision extracted above. While passing the final order, the learned Special Judge shall consider the same. Holding so, Crl.M.C.No.5590/2025 stands disposed of as above.