Home Case Index All Cases Money Laundering Money Laundering + HC Money Laundering - 2019 (11) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (11) TMI 962 - HC - Money LaunderingMoney Laundering - Provisional Attachment of Bank accounts of petitioner - proceeds of crime - attachment order challenged on the ground of lack of jurisdiction, illegal and vitiated by the vice of mala fides and perversity - petitioner contended that the ED authorities have no power to freeze the bank accounts, as they have got power only to order provisional attachment of the alleged proceeds of crime under Section 5 of PMLA, upon fulfilment of the mandatory conditions stipulated therein - continuing offence or not - retrospective penalization - Maintainability of petition - alternative remedy of appeal - HELD THAT:- Admittedly, there is a complaint under Section 5(5) of the PMLA to be adjudicated under Section 8 of the said Act, based on the impugned PAO issued under Section 5(1) of the Act. The requirement for issuing the same is the presence of ‘reason to believe’ at every stage, which should be recorded in writing. The ‘reason to believe’ to be recorded in writing should be in consonance with the second proviso to Section 5(1) of the PMLA. Secondly, the notice under Section 8(1) of the PMLA also should be communicated recording the ‘reason to believe’. Only when there is a violation of the legal requirements, the PAO would be rendered illegal. It is to be stated that the PAO is valid for a period of 180 days and within a period of 30 days of passing such order, the concerned authority has to forward a complaint under Section 5(5) of the PMLA to the Adjudicating Authority, which has been done in this case on 26-10-2018. The Adjudicating Authority, after issuing notice, hearing the parties and considering their reply and other materials, has to pass a reasoned order as to the nature of the property deciding whether the property is involved in money laundering or not. Though the expression ‘continuing offence’ is not defined in the PMLA, whether a particular offence is a continuing one or not depends upon the nature of offence and the purpose intended to be achieved. The concept of continuing offence is keeping the offence alive day by day without wiping the original guilt. Thus, there is an ingredient of continuance of the offence in continuing offence. Therefore, the contention of the petitioner that the second proviso to Section 5(1) is only prospective and not retrospective is without substance or force. The second proviso is applicable to property acquired even prior to the coming into force of this provision. Hence, retrospective penalization is permissible. Maintainability of petition - alternative remedy of appeal - HELD THAT:- The petitioner ought to have faced the Section 8 proceedings and other appellate alternative remedies. Without exhausting those remedies, the petitioner cannot maintain this petition before this Court under Article 226 of the Constitution. Petition dismissed.
|