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2022 (4) TMI 138 - HC - Money LaunderingProvisional attachment order - Smuggling - proceeds of crime - failure to discharge the burden as required under Section 24 of the PML Act - HELD THAT:- The PML Act, 2002 gives wide powers to the authorities to attach properties suspected to be involved in money laundering. Section 5 of the PML Act authorizes to attach property and the same is to be exercised if the authority has reason to believe, on the basis of material in their possession that, any person is in possession of any proceeds of crime and such proceed of crime are likely to be concealed, transferred, or dealt with in any manner, which may result in frustrating any proceedings relating to confiscation of such proceeds of crime - It is statutory duty on the part of the authority to file a complaint, stating the facts of attachment before the adjudicating authority after provisional attachment. Section 24 of the PML Act, 2002, casts the burden of proving that, the alleged proceeds of crime are not involved in money laundering on the accused. This Court is of considered view that, the attached properties purchased or acquired before the commission of the offence as well as the Act came into force. It is not in dispute that, the authority was not able to trace the “tainted property”. The issue to be examined is whether the necessary condition for passing the impugned order under Section 5(1) of the Act is satisfied or not. In the case on hand, the respondent authorities have passed order in mechanical manner, without assigning proper reasons thereof, as order itself reveals that, there is non-application of mind while come to a conclusion that, the properties were derived or obtained from proceeds of crime. At the relevant point of time, the sufficient material was with the authorities to arrive at a conclusion that, the properties were acquired before commission of offence. Even the very facts having been admitted by the authorities that, they could not find tainted properties. Therefore, there is no material that could suggest that the properties sought to be attached derived or acquired from criminal activity. The present writ petition in the present form has been rightly registered as Special Criminal Application and therefore, the contention raised by the respondents that, the present writ petition in present form invoking the criminal jurisdiction, is devoid of any merits and not acceptable - Petition allowed.
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