TMI Blog2019 (5) TMI 1461X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 in the cases of Dipak Babaria and another vs. State of Gujarat [ 2015 (8) TMI 775 - SUPREME COURT] and J. Jayalalitha Anr vs State of Karnataka Ors [ 2013 (9) TMI 1182 - SUPREME COURT] 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. 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 expired. No prosecution complaint has been filed by the respondent against the appellant. The said fact has been admitted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent over the appellant under the provisions of the PMLA, 2002. b) The respondent issued another similar summon dated 13.04.2017 to the appellant under section 50(2) and 50(3) of the Prevention of Money Laundering Act, 2002 informing the appellant that the respondent is making an investigation in ECIR/05/DZ/2012 and that the presence of respondent was considered necessary on 25.04.2017 for the purposes of the said investigation. Thereafter, on 21.04.2017, the Counsel for the appellant informed the respondent that the respondent was unable to comply with the summons dated 13.04.2017 as the appellant was travelling abroad on a business trip. The Counsel once again requested the respondent to inform them of the details case that was being investigated and to clarify on the respondent s assumption of jurisdiction over the appellant under the provisions of the PMLA, 2002, since the ECIR/05/DZ/2012. b) On 02.06.2017, the respondent once again issued a similar summon to the appellant under section 50(2) and 50(3) of the Prevention of Money Laundering Act, 2002 informing the appellant that he was making an investigation in ECIR/05/DZ/2012 and that the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate, Respondent and also allowed the Respondent to retain the documents/digital devices till finalisation of the case. The said order is challenged before us. 8. The appellant is neither accused in FIR, nor in ECIR, nor has he been charge sheeted in any of the offences. The respondent has not produced any material having any relation, link or nexus between the appellant and the Sterling Biotech Ltd. in its OA, nor in the reply filed to the present appeal. 9. In the entire Original Application, there is no mention of any proceeds of crime being generated or being in the possession of the appellant or that the appellant is involved in the concealment of such proceeds of crime and portraying the same as untained money. 10. The respondent has not placed on record any material that the property seized by the respondent is a property involved in money laundering as there is no allegation qua the generation of proceeds of crime or the appellant is involved for the offence of money laundering. 11. It is evident from the reason to believe that the notice under section 8(1) was issued on filing of application under section 17(4) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rch; (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 cases where 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... general or special order, has reason to believe (the reason for such belief to be recorded in writing) that any person has secreted about his person or in anything under his possession, ownership or control, any record or proceeds of crime which may be useful for or relevant to any proceedings under this Act, he may search that person and seize such record or property which may be useful for or relevant to any proceedings under this Act: [Provided that no search of any person shall be made unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under section 173 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.] (2) The authority, who has been authorised under sub-section (1) shall, immediately after search and 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 pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) Where any property has been seized under section 17 or section 18 or frozen under sub-Section (1A) of Section 17 and the officer authorised by the Director in this behalf has, on the basis of material in his possession, reason to believe (the reason for such belief to be recorded by him in writing) that such property is required to be retained for the purposes of adjudication under section 8, such property 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 property was seized or frozen, as the case may be. (2) The officer authorized by the Director shall, immediately after he has passed an order for retention or continuation of freezing of the property for purposes of adjudication under section 8, forward a copy of the order along with the material in his possession, referred to in sub-section (1), to the Adjudicating Authority, in a sealed cover, in the manner as may be prescribed and such Adjudicating Authority shall keep such order and material for such period as may be prescribed. (3) On the expiry of the period specified in sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ading 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. 20. The person concerned/aggrieved party of such order, is entitled to file the appeal under Section 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. 21. 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. 22. It is settled law that if a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
