TMI Blog2019 (3) TMI 1441X X X X Extracts X X X X X X X X Extracts X X X X ..... y within the meaning of sub-section 4 of Section 21 is 180 days from the date of seizure of any property or records. The said period is not extendable. The provisions of section 8 (3) (a) provides that the attachment or retention of property or record seized shall continue during the investigation for a period not exceeding ninety days. In the instant case, the search of the residential premises was conducted on 31.11.2017 and the Adjudicating Authority has confirmed the OA on 22.05.2018. It is admitted position that no prosecution complaint has been filed against the Appellant herein. The properties and records of the Appellant were seized only for the purpose of investigation. The period of 90 days as prescribed under section 8 (3) (a) has already elapsed. Thus, we allow the appeal. We direct the respondent to return the properties retained by the respondent as the prescribed period of 90 days under section 8(3)(a) has already been expired. The seizure lapses after the said period if no prosecution complaint is filed. - MP-PMLA-4597/DLI/2018, FPA-PMLA-2370/DLI/2018, MP-PMLA-4598/DLI/2018, FPA-PMLA-2371/DLI/2018, MP-PMLA-4599/DLI/2018, FPA-PMLA-2372/DLI/2018, MP-PMLA-460 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s statements in Gujrati, the officers turned down the said request and compelled him to write and sign the statement as dictated by them. 8. During the search, nothing incriminating was recovered and seized. However, the respondent under the grab of investigation illegally sealed 4 Mobile Phones, 2 Pen Drives, 2 Mobile Tablets and 1 Laptop of the appellant. Nothing has been brought on record till now to prove that the seized properties have any nexus or link whatsoever with money laundering. Nothing has been furnished by the respondent to substantiate the same. Appeal no. 2371 of 2018 Shri Lakhmi Chand Sharma 9. The allegations in brief are that Shri Lakhmi Chand Sharma appellant was regularly getting various payments, connected with properties involved in money laundering, since around 2011 from Shri Gagan Dhawan and M/s. PMT Machines Ltd. ( a company which is owned and controlled by Sh. Chetan Jayantilal Sandesara and Shri Nitin Jayantilal Sandesara), without actually providing any legitimate service to them, and that the appellant was in possession of certain documents/records/property etc. relating to money laundering, which could prove to be useful for the insta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to believe qua the properties and records of the Appellant. In view of thereof, the appellant submitted that the order passed by the learned Adjudicating Authority is liable to be quashed and set aside. 13. It is evident that the provisions of section 20 (Retention of Property) are pari materia to the provisions of section 5(Attachment of Property) as shown under: Stages Retention of property Attachment of Property 1. S. 20(1): Recording of reason to believe S. 5(1): Recording of reason to believe 2. S.17(4): OA within 30 days S. 5(5): OC within 30 days 3. S. 20(2): Order by the Authorized Officer S. 5(1): Order by the Authorized Officer 4. Rule 4 of Retention Rules, 2005: Acknowledgment of Order by the Adjudicating Authority Rule 5 of Attachment Rules, 2005: Acknowledgment of Order by the Adjudicating Authority 5. S.20(1): Outer limit of 180 days ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such report is not required to be forwarded, a similar report of information received or otherwise has been submitted by an officer authorised to investigate a scheduled offence to an officer not below the rank of Additional Secretary to the Government of India or equivalent being head of the office or Ministry or Department or Unit, as the case may be, or any other officer who may be authorised by the Central Government, by notification, for this purpose.] [(1A) Where it is not practicable to seize such record or property, the officer authorised under subsection (1), 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 a copy of such order shall be served on the person concerned: Provided that if, at any time before its confiscation under sub-section (5) or sub-section (7) of Section 8 or Section 58B or sub-Section (2A) of Section 60, it becomes practical to seize a frozen property, the officer authorised under sub-Section (1) may seize such property.] (2) The authority, who has been authorized under sub-section(1) shall, immedia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd seizure, forward a copy of the reasons so recorded along with material in his possession, referred to in that sub-section, to the Adjudicating Authority in a sealed envelope, in the manner, as may be prescribed and such Adjudicating Authority shall keep such reasons and material for such period, as may be prescribed. (3) Where an authority is about to search any person, he shall, if such person so requires, take such person within twenty-four hours to the nearest gazetted officer, superior in rank to him, or a Magistrate: Provided that the period of twenty-four hours shall exclude the time necessary for the journey undertaken to take such person to the nearest gazetted officer, superior in rank to him, or Magistrate's Court. (4) If the requisition under sub-section (3) is made, the authority shall not detain the person for more than twenty-four hours prior to taking him before the Gazetted Officer superior in rank to him, or the Magistrate referred to in that sub-section: Provided that the period of twenty-four hours shall exclude the time necessary for the journey from the place of detention to the office of the Gazetted Officer, superior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h period as may be prescribed. (3) 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 or whose property was ordered to be frozen unless the Adjudicating Authority permits retention or continuation of freezing of such property beyond the said period. 17. Section 21 of PMLA reads as under:- 21. Retention of records. (1) Where any records have been seized, under section 17 or section 18 or frozen under sub-section (1A) of section 17 and the Investigating Officer or any other officer authorised by the Director in this behalf has reason to believe that any of such records are required to be retained for any inquiry under this Act, such records may if seized, be retained or if frozen, may continue to remain frozen, for a period not exceeding one hundred and eighty days from the day on which such records were seized or frozen, as the case may be. (2) The person, from whom records seized or frozen, shall be entitled to obtain copies of records. (3) On the expiry of the period specified under sub-section (1), the records shall be returned to the person from who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a particular manner, it must be done in that manner only and none other. Reliance in this regard is also placed on a judgements of Hon ble Supreme Court in the cases of Dipak Babaria and another vs. State of Gujarat 2014 (3) SCC 502 and J. Jayalalitha Anr vs State of Karnataka Ors 2014 (2) SCC 401. 22. Counsel for the respondent has admitted before us that appellants are not arrayed in the FIR nor any criminal complaint is pending. He is also not sure whether the material seized by the respondent have any link and nexus with the main accused. It is not denied by the counsel for the respondent that more than a year and six months have been passed, nothing was revealed against the appellant. 23. The provisions of section 8 (3) (a) provides that the attachment or retention of property or record seized shall continue during the investigation for a period not exceeding ninety days. In the instant case, the search of the residential premises was conducted on 31.11.2017 and the Adjudicating Authority has confirmed the OA on 22.05.2018. 24. It is admitted position that no prosecution complaint has been filed against the Appellant herein. The properties and records of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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