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Rai Foundation Thr Its Trustee Mr Suresh Sachdev Versus The Director, Directorate Of Enforcement & Ors

Attachment of property involved in money laundering - Held that:- A perusal of Section 5 of the Act makes it clear that the order passed under sub-section 1 is a provisional measure and valid for maximum period of 180 days. The provisional attachment has to be approved by the Adjudicating Authority after proper adjudication within 180 days. The act envisages three layers of the grievance redressal in addition to safeguards incorporated in Section 5(1) of the Act. - The Adjudicating Authorit .....

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igh Court. Petitioner can raise all the pleas including that of the jurisdiction before the Adjudicating Authority. - It is one thing to say that in exercise of power vested in it under Article 226 of the Constitution, this High Court entertain a writ petition against any order passed by or action taken by the State and/or its agency or any public authority or order passed by quasi-judicial authority and it is altogether different thing to say that each and every petition filed under Article .....

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Ramesh Gupta, Sr Adv. with Mr Pawan Sharma & Mr Anuj Shah, Advs. Respondent Rep by: Mr Sanjeev Narula & Mr Ajay Kalra, Advs. Per: A K Pathak: JUDGEMENT Per: A K Pathak: Crl. M.A. No. 2483/2015 (exemption) 1. Allowed, subject to all just exceptions. 2. Application is disposed of.W.P.(CRL) 331/2015 3. Joint Director, Eastern Region, Enforcement Directorate, Government of India, Kolkata has passed a provisional attachment order dated 9th January, 2015 under sub-section 1 of Section 5 of the .....

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rning or assets out of which or by means of which it had acquired the properties attached under sub-section (1) of Section 5 of the Act. Petitioner has been called upon to furnish the evidence in this regard. 4. By way of present writ petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.), petitioner has prayed for quashing of the complaint, show cause notice dated 3rd February, 2015 and the provisional attachment order dat .....

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belief to be recorded in writing), on the basis of material in his possession, that- a. any person is in possession of any proceeds of crime; and b. such proceeds 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 under this Chapter, he may, by order in writing, provisionally attach such property for a period not exceeding one hundred and eighty days from the date of the o .....

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led under the corresponding law of any other country: Provided further that, notwithstanding anything contained in Clause (b), any property of any person may be attached under this Section if the Director or any other office not below the rank of Deputy Director authorized by him for the purposes of this Section has reason to believe (the reasons for such belief to be recorded in writing), on the basis of material in his possession, that if such property involved in money-laundering is not attac .....

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der and material for such period as may be prescribed. 3. Every order of attachment made under subsection (1) shall cease to have effect after the expiry of the period specified in that sub-section or on the date of an order made under sub-section (2) of section 8, whichever is earlier. 4. Nothing in this section shall prevent the person interested in the enjoyment of the immovable property attached under sub-section (1) from such enjoyment. Explanation. - For the purposes of this sub-section, & .....

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der sub-section (5) of section 5, or applications made under sub-section (4) of section 17 or under sub-section (10) of section 18, if the Adjudicating Authority has reason to believe that any person has committed an offence under section 3 or is in possession of proceeds of crime, he may serve a notice of not less than thirty days on such person calling upon him to indicate the sources of his income, earning or assets, out of which or by means of which he has acquired the property attached unde .....

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served upon such other person: Provided further that where such property is held jointly by more than one person, such notice shall be served to all persons holding such property. 2. The Adjudicating Authority shall, after - a. considering the reply, if any, to the notice issued under sub-section (1); b. hearing the aggrieved person and the Director or any other officer authorized by him in this behalf; and c. taking into account all relevant materials placed on record before him, by an order, .....

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hall, by an order in writing, confirm the attachment of the property made under sub-section (1) of section 5 or retention of property or record seized or frozen under section 17 or section 18 and record a finding to that effect, whereupon such attachment or retention or freezing of the seized or frozen property or record shall- (a) continue during the pendency of the proceedings relating to any offence under this Act before a court or under the corresponding law of any other country, before the .....

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on of the property attached under Section 5 or frozen under sub-section (1A) of Section 17, in such manner as may be prescribed: Provided that if it is not practicable to take possession of a property frozen under sub-section (1A) of Section 17, the order of confiscation shall have the same effect as if the property had been taken possession of. 5. Where on conclusion of a trial of an offence under this Act the special court finds that the offence of money-laundering has been committed, it shall .....

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y reason of the death of the accused or the accused being declared a proclaimed offender or for any other reason or having commenced but cound not be concluded, the special court shall, on an application moved by the Director or a person claiming to be entitled to possession of a property in respect of which an order has been passed under sub-section (3) of Section 8, pass appropriate orders regarding confiscation or release of property, as the case may be, involved in the offence of money-laund .....

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fact arising out of such order. 9. In view of the availability of alternative remedies available to the petitioner under the this Act, I am not inclined to entertain this writ petition under Article 226 of the Constitution of India at this nascent stage, more so when complete mechanism has been provided under the Act to safeguard the interest of aggrieved person. The petitioner has effective and efficacious statutory remedies to prove the nature of acquisition of assets and to ventilate their gr .....

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f the issue at this stage even before attachment order has become final, investigation is completed, trial concluded and issue of attachment is considered by Adjudicating Authority, Appellate Authority and second Appellate Authority. 10. Learned Senior Counsel has vehemently contended that even if alternative remedies are available, jurisdiction of the High Court under Article 226 of the Constitution of India is not curtailed and the writ petition is maintainable against the provisional attachme .....

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f Trade Marks, Mumbai and Ors. (1998) 8 SCC 1 and Calcutta Discount Co. Ltd. vs. Income-Tax Officer, Companies District I, Calcutta and Another, AIR 1961 SC 372 which are in the context of different facts and of no help to the petitioner in this case. Per contra, counsel for respondent nos. 1 and 2 has contended that facts have to be ascertained by the Adjudicating Authority on the evidence to be produced by the parties. Complete mechanism has been envisaged under the Act of adjudication of disp .....

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the Adjudicating Authority after proper adjudication within 180 days. The act envisages three layers of the grievance redressal in addition to safeguards incorporated in Section 5(1) of the Act. The Adjudicating Authority may confirm or set aside the provisional attachment order on the basis of material produced by the parties before it. If Adjudicating Authority confirms the order of provisional attachment, the Act envisages appeal before the Appellate Tribunal. Section 42 of the Act provides f .....

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