TMI Blog2019 (1) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... e final between the parties as the respondent has not challenged the same in any court as admitted by the counsel. As far as the proceedings under section 5 of PMLA, which have been initiated against the appellant is concerned, the same would be considered by the Tribunal as per its own merit. Appeal allowed. - FPA-PMLA-1880/PTN/2017 - - - Dated:- 10-1-2019 - Justice Manmohan Singh Chairman And Shri G.C. Mishra Member For the Appellant : Shri Jay SavlaAdvocate For the Respondent : Shri Nitesh Rana, Advocate JUDGEMENT FPA-PMLA-1880/PTN/2017 1. The appellant has challenged the order passed by the Adjudicating Authority in O.A. No. 77 of 2017 dated 14.07.2017 in the present appeal filed under Section 26 of the Act. 2. By the impugned order, the Adjudicating Authority did not allow the OA and held that application filed before the authority was beyond the scope of provisions of Sections 17(1-A) and 17(4) of the Prevention of Money Laundering Act, 2002. 3. The brief facts as per the appellant are given as under:- 3.1. ECIR bearing no. PTZO/05/2016 dated 26.12.2016 was registered by the Enforcement Directorate, Patna Zonal Office for investigat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lding, place, vessel, vehicle or aircraft where he has reason to suspect that such records or proceeds of crime are kept; (b) break open the lock of any door, box, locker, safe, almirah or other receptacle for exercising the powers conferred by clause (a) where the keys thereof are not available; (c) seize any record or property found as a result of such search; (d) place marks of identification on such record or [property, if required or] make or cause to be made extracts or copies therefrom; (e) make a note or an inventory of such record or property; (f) examine on oath any person, who is found to be in possession or control of any record or property, in respect of all matters relevant for the purposes of any investigation under this Act: [Provided that no search shall be conducted unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under section 157 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint has been filed by a person, authorised to investigate the offence mentioned in the Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be, or in cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hom such property was seized or whose property was ordered to be frozen unless the Adjudicating Authority permits retention of such property beyond the said period. 7. If Sub-section (1) of Section 20 reads accordingly, the mandate is on the basis of material in the possession of officer authorized by the Director on the basis of reasons to believe that the property is required to be retained for the purposes of adjudication under Section 8, the seizure property can be retained for a period not exceeding one hundred and eighty days from the day on which the property was seized or frozen, as the case may be. 8. Sub-section (3) of Section 20 mandates that on the expiry of the period specified in sub-section (1), the property shall be returned to the person from whom such property was seized unless the Adjudicating Authority permits retention or contention of freezing of the same property beyond the said period. 9. It is well settled that if the statute require a thing to be done in a particular manner, it must be in that manner otherwise action is vitiated. After realized its mistake about freezing, the respondent has passed the order of fresh freezing on the fresh applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer authorized under sub-section 1 (of section 17), may make an order to freeze such property, whereupon the property shall not be transferred or otherwise dealt with, except with the prior permission of the officer making such order, and copy of such order shall be served on the person concerned. It is contented by the several respondents that they have not been served with any copy of order of freezing in terms of section 17 (1-A). What is pointed out and relied upon by the Applicant are the intimations sent to the different banks, where the respective respondent have their bank accounts. Their contentions as to non-receipt/ non-service of the communication regarding non-allowing of the debit in the bank account, would not survive as there is no action under section 17 (1-A). The provisions of section 17(4) indicates that the authority seizing any record or property under sub-section 1 (of section 17) or freezing any record or property under sub-section 1-A within a period of 30 days from such seizure or freezing as the case may be, file an application requesting for retention of such record or property seized under sub-section 1 or from continuation of the order of freezing s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the mandatory provision or after disposing of the first application of the respondent. The PMLA is a Special Act. The provisions of such Act are to be considered strictly. Mr. Rana submits that since the 2nd application under section 17 as directed by the adjudicating authority has been filed, therefore, no compliance is made. As far as the proceedings under section 5 of PMLA, which have been initiated against the appellant is concerned, the same would be considered by the Tribunal as per its own merit. 19. We do not agree with Mr. Rana on this aspect. It is a mandatory provision under sub-section (3) of section 20. The order of seizure cannot be retained from the date of seizure after the expiry of 180 days, unless the order of retention is extended by the adjudicating authority. In the present case, the application for retention was not allowed by the adjudicating authority. The 180 days are expired from the day of seizure of the bank accounts as well as from the date of passing the impugned order. 20. No doubt, as far as the 2nd application and proceedings under section 5 of PMLA are concerned, the appeal would be considered on merit once it is listed before us. How ..... X X X X Extracts X X X X X X X X Extracts X X X X
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