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2019 (5) TMI 476

y property or records. The said period is not extendable - HELD THAT:- The person concerned/aggrieved party of such order, is entitled to file the appeal u/s 26 of the Act. The same shall be heard and after giving an opportunity of being heard, the appellant Tribunal shall pass the order either to confirm the order of retention or to modify or setting aside the same. Where the Adjudicating Authority decides by an order confirm the retention under Sub-section (1) of Section 17 or Section 18 for the purpose of continuation during investigation for a period not exceeding ninety days under this Act before the Competent Court, or under the corresponding law of any other countries as the case may be under Sub-section (3) (a) of Section 8 may take necessary action within the time prescribed. In failure to do so under this Act, all the proceedings, seizures/frozen under Section 17 would be lapsed ipso facto. It is settled law that if a particular thing is to be done 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 Guja .....

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f suspected proceeds of crime from Vadodara to Delhi between Sterling Biotech Limited and various individuals/entities based in Delhi . One such Angadia is the appellant herein. d) ECIR/HQRS/15/2017 dated 31.08.2017 was lodged on the basis of the FIR. e) On the basis of this statement, premises of appellants were searched on 04.09.2017 and properties were seized. 6. The allegations against the appellants are that: a) The appellants‟ services were used to transfer funds from Sandesara Group to certain public officials. As such, there is not even an averment as to whether there are any proceeds of crime or not and therefore the most basic jurisdictional fact, giving the right to the Directorate of Enforcement to conduct an investigation is itself missing. b) Reasons to believe under Section 8 and 17(1) PMLA were never provided to the appellants despite making a request for the same and in fact the impugned order wrongly records that the requirement of reasons to believe has been exhausted, giving an impression that the same were provided to the appellants. c) The appellants are neither accused in the FIR No. RC.08(A)/2017- AC.III, nor in the ECIR No. HQRS/15/2017 and as such be .....

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r forwarded to the Adjudicating Authority or provided to the appellant at any stage during the proceedings. 13. In the impugned order wherein it is stated that it may be that some relevant record, entries or material may be existing in the records/material, which may link or indicate money laundering activities. At present the material seized on reasonable belief that the respondent may be in possession of any record relating to money laundering. 14. Section 17 of PMLA, 2002 reads as under: 17 Search and seizure. -(1) Where [the Director or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section,] on the basis of information in his possession, has reason to believe (the reason for such belief to be recorded in writing) that any person - (i) has committed any act which constitutes moneylaundering, or (ii) is in possession of any proceeds of crime involved in money-laundering, or (iii) is in possession of any records relating to moneylaundering, (or) (iv) is in possession of any property related to crime] then, subject to the rules made in this behalf, he may authorize any officer subordinate to him to - (a) enter and search any buil .....

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uance of a freezing order] 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 reason and material for such period, as may be prescribed. (3) Where an authority upon information obtained during survey under section 16, is satisfied that an evidence shall be or is likely to be concealed or tampered with, he may, for reasons to be recorded in writing, enter and search the building or place where such evidence is located and seize that evidence. Provided that no authorization referred to in sub-section (1) shall be required for search under this sub-section. (4) The authority seizing any record or property under sub- Section (1) or freezing any record or property under sub-Section (1A) shall, within a period of thirty 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 for continuation of the order of freezing served under sub-Section (1A), before the Adjudicating Authority.]. 15. Se .....

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if he sees no reasonable ground for search, forthwith discharge such person but otherwise shall direct that search be made. (6) Before making the search under sub-section (1) or subsection (5) the authority shall call upon two or more persons to attend and witness the search, and the search shall be made in the presence of such persons. (7) The authority shall prepare a list of record or property seized in the course of the search and obtain the signatures of the witnesses on the list. (8) No female shall be searched by any one except a female. (9) The Authority shall record the statement of the person searched under sub-section (1) or sub-section (5) in respect of the records or proceeds of crime found or seized in the course of the search:18 [***] (10) The authority seizing any record or property under subsection (1) shall, within a period of thirty days from such seizure, file an application requesting for retention of such record or property, before the Adjudicating Authority. 16. Sub-section (1), (2) and (3) of Section 20 read as under:- 20. Retention of property.- (1) Where any property has been seized under section 17 or section 18 or frozen under sub-Section (1A) of Section .....

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ng of such records beyond the period specified in sub-section (1), shall satisfy himself that the records are required for the purposes of adjudication under section 8. (5) After passing of an order of confiscation [or release under sub-section (5) or sub-section (6) or sub-section (7) of section 8 or section 58B or subsection (2A) of section 60] , the Adjudicating Authority shall direct the release of the records to the person from whom such records were seized. (6) Where an order releasing the records has been made by the Court [Adjudicating Authority under section (5) of section 21] the Director or any other officer authorised by him in this behalf may withhold the release of any such record for a period of ninety days from the date of (receipt of] such order, if he is of the opinion that such record is relevant for the appeal proceedings under this Act. ] 18. It is clear from the reading of Sections 17 to 21 that outer limit upto the date for deciding the application for retention of property 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. 19. The person concerned/aggrieved par .....

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