TMI Blog2018 (6) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisional Attachment, are without following the due procedure and giving fair opportunity to the writ petitioners herein to submit their say in the matter. Therefore, there is no question of violation of principles of natural justice. As regards the notice dated 5.10.2016 issued to the petitioners for taking possession of the property, the writ petitioners have to challenge the same by preferring an appeal before the appellate Tribunal and they cannot directly approach this Court by filing the writ petitions invoking the extra-ordinary jurisdiction of this Court. When the provisions of the statute itself i.e., The Prevention of Money-Laundering Act, 2002 itself provides for challenging the said orders by preferring an appeal before the appellate Tribunal, as it is rightly submitted by the learned Additional Solicitor General appearing for the respondents/authorities, the writ petitions are not maintainable, since as per Section 42 of the Prevention of Money Laundering Act, 2002, only when a person is aggrieved by the decision or order of the appellate Tribunal, such person can approach this Court by preferring an appeal. - WRIT PETITION NOS.63381/2016 & 63382/2016(GM-RES) C/W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigation in terms of Sections 48 and 49 of the Act, 2002 as the said offences are declared as schedule offence in terms of section 2(1)(y) of Act, 2002. The petitioners further submitted that a notice was issued calling upon them to submit their explanation as to why the properties mentioned at clause (i) and (ii) at para No.5 of the present petitions held by them should not be attached. Thereafter, the 2nd respondent passed a provisional attachment order No.13/2006 in ECIR/BGZO/03/2011/DD-SD/26 under sub-section (1) of Section 5 of Act, 2002 on 30.03.2016. The 1st respondent lodged a complaint to the Adjudicating Authority under Section 8 of the Act, 2002. The petitioners were called upon to appear before the Adjudicating Authority for recording their statements. After filing a detailed objections before the Adjudicating Authority, by an order dated 14.9.2016, the Adjudicating Authority confirmed the provisional attachment order. Being aggrieved by the order of the said authority, the petitioners contemplating filing of an appeal before the Appellate Tribunal constituted under the provisions of the Act, 2002. Para 8 of the schedule to the provisions of Act 2002 was amended and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re initiated before the Special District and Sessions Judge, Bellary in Crime No.2/2010. The Lokayuktha police has seized both movables and immovables at the time of search conducted on 4.5.2010. On an application filed before the Principal Sessions Judge/Special Judge at Bellary and the Crl.P.No.11239/2012 filed before the Hon ble Court both movables and immovables that was seized by Lokayuktha were released. Lokayuktha police have filed charge sheet in crime No.22/2010 on 5.4.2014. The matter is pending before the Principal Sessions Judge/ Special Judge, Bellary. When things stood thus, the third respondent exercising power under Section 50 of the Prevention of Money-Laundering Act, 2002 has issued summons to the petitioners directing them to appear before the third respondent on 22.8.2016 along with the documents that are specified in the schedule of the summons. The said summons have been issued by the third respondent to investigate the offence that may have been committed by the petitioners under the Prevention of Money-Laundering Act, 2002 and the summons are outcome of the Crime No.2/2010. On 21.8.2016 the first petitioner submitted a representation to the third respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Prevention of Money Laundering Act, 2002 has no application to the petitioners case since Lokayuktha had registered an FIR in Crime No.10/2010 and 2/2010 against the petitioners on 15.11.2010 and 3.5.2010 respectively for the offence punishable under Section 13(1)(e) r/w Section 13(2) of the Prevention of Corruption Act, 1988. As such, the question of invoking the provisions of the Prevention of Money Laundering Act, 2002 against the petitioners for the alleged offence under Section 13 of the Prevention of Corruption Act, 1988 also does not arise. He submitted that the rule making authority has statuted the amendment to come into force only with effect from 15.2.2013 by insertion of the amendment Act with regard to taking possession of the property attached under Section 5 or frozen under Section 1(a) of Section 17 of the order of confiscation. Therefore, question of taking possession of the properties of the petitioners by the respondents under the provisions of the Prevention of Money Laundering Act, 2002 does not arise. Learned counsel submitted that proceedings under Section 13(1)(e) r/w 13(2) of the Prevention of Corruption Act, 1988 was initiated against them on 15.11.2010 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Enforcement In Writ Petition No. 56157/2014, Mrs.C.P. Pushpa vs- Deputy Director, Directorate of Enforcement In Writ Petition No. 56158/2014, Shri C.P.Yogeshwara vs- Deputy Director, Directorate of Enforcement In Writ Petition Nos. 895-897/2015, Sri Tholasirama and others vs- Registrar, Adjudicating Authority and another In Writ Petition Nos. 10795-97/2015, Sri M.D.Krishnegowda and others vs- The Deputy Director, Directorate of Enforcement and another In Writ Petition Nos. 12820-21/2015, S.Premalatha and another vs- The Deputy Director, Directorate of Enforcement In Writ Petition Nos. 13154-13155/2015, Sri T.N. Bettaswamiah and another vs- Deputy Director, Directorate of Enforcement In Writ Petition No.15258/2015, P.Shanthakumar vs- Deputy Director, Directorate of Enforcement In Writ Petition Nos. 34912-913/2015 (GM-RES) H.D.Balakrishnegowda vs- Deputy Director, Directorate of Enforcement 7. Per-contra, learned Additional Solicitor General submitted that the petitions are not maintainable. He submitted that the petitioners ought to have challenged the issuance of notice dated 5.10.2016 by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atory Bail Application No.823/2012 11. Union of India vs- Hassan Ali Khan and another reported in (2011) 10 SCC 235 and submitted that when the statute itself i.e, the Prevention of Money Laundering Act, 2002 itself provides the provisions for preferring an appeal against the orders passed by the respondent-authorities, the petitioners cannot approach this Court by preferring the writ petitions invoking extra-ordinary jurisdiction of this Hon ble High Court. In this connection, learned Additional Solicitor General drew the attention of this Court to Sections 26 and 42 of the Prevention of Money Laundering Act, 2002 for preferring appeals to the appellate Tribunal, which reads as under: 26. Appeals to Appellate Tribunal.- (1) Save as otherwise provided in sub-section (3), the Director or any person aggrieved by an order made by the Adjudicating Authority under this Act, may prefer an appeal to the Appellate Tribunal. (2) Any (reporting entity) aggrieved by any order of the Director made under sub- section (2) of section 13, may prefer an appeal to the Appellate Tribunal. (3) Every appeal preferred under sub- section (1) or sub-section (2) shall be fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within a period of sixty days from the date of communication of decision or order of the appellate Tribunal to him on any question of law or fact arising out of such order. It is his submission that even as per the averments made in the writ petitions, there is no allegation by the petitioners that while passing the Provisional Attachment Order under Section 5(1) of the Prevention of Money Laundering Act, 2002 no notice was issued to them. Further, it is also not their contention that while confirming the Provisional Attachment Order they were not given opportunity to make their statements before the said Authority. Hence, learned Additional Solicitor General submitted that when fair opportunity has been already given to the writ petitioners and only after considering their say in the matter, the Provisional Attachment Order, so also, confirmation of the said order are passed by the authorities, there is no question of respondent- authorities violating the principles of natural justice. Learned Additional Solicitor General drawing the attention of this Court to the decisions relied upon, more particularly, to paragraph Nos.15 and 16 of the decision reported in (2014) 1 Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er by preferring SLP (CRL) Nos.4466/2017 wherein, the Hon ble Apex Court by its dated 24.7.2017 has passed the following order: Leave granted. In the meantime, impugned judgment and order will not operate as a precedent. Liberty is granted to file Rejoinder Affidavit within a period of 4 weeks from today. and submitted that the petitioners cannot take shelter under the Division Bench decision passed by this Court as the matter is already seized before the Hon ble Supreme Court. He lastly contended that there is no merit in the above writ petitions and ought to be dismissed. 8. I have perused the averments made in the above writ petitions, the documents produced by the petitioners along with the writ petitions and the decisions relied upon by both sides, which are referred to above. I have also considered the oral submissions of the learned counsel on both sides at the bar. 9. By filing these writ petitions, petitioners have challenged the initiation of proceedings under Section 13 of the Prevention of Corruption Act, 1988 that it was not included in para 8 of the schedule to the provisions of the Prevention of Money Laundering Act, 2002 as on 15.11.2010. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le property pursuant to an order confirming the provisional attachment and before conviction of the accused for an offence of money-laundering is valid; (v) that the presumption enjoined in cases of interconnected transactions enjoined by Section 23 is valid; and (vi) that the burden of proving that proceeds of crime are untainted property is applicable not only to prosecution and trial of a person charged of committing an offence under Section 3, but to proceedings for attachment and confiscation-in chapter III of the Act as well; but only to a person accused of having committed an offence under Section 3. The burden enjoined by Section 24 does not inhere on a person not accused of an offence under Section 3. The presumption under Section 23 however applies in interconnected transactions, both to a person accused of an offence under Section 3 and a person not so accused. and submitted that the contention of the petitioners that the properties acquired by them is much prior to the coming into the force of the amended provision to the Prevention of Money Laundering Act, 2002 and hence, there is no offence, is not sustainable in law. 12. In this connection, I have also pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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