TMI Blog2019 (6) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... appropriate time is entitled to receive the copies thereof under sub section 2 of Section 21 of the Act. This Tribunal is of the view that no exception in the present appeals has been created by the appellants. In the present appeals, having considered the nature of the seizure at present this tribunal is of the view that there is hardly any hardship if the objections raised by the appellants be decided by the Adjudicating Authority within time-bound manner. The Appellants inter-alia have challenged the validity of recording the reasons to believe, issuances of notice under Section 8(1) of the Act and seizure memos. As far as objections raised by the appellants are concerned, no doubt, prima facie, there is some substance in the arguments of the counsel for the appellants. However, in my view, the same can be raised before the Adjudicating Authority who will have to consider and decide the same. It is clarified that objection and contention if raised by the appellants before the adjudicating authority and same are not decided as per law, the appellants have always remedy to challenge the same in appeal after the retention order under section 17(4) is passed. With regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above mentioned FIR ( Copy of ECIR) not supplied to the Appellant). 01.03.2019 Search conducted by the Assistant Director, Directorate of Enforcement at the registered office of the Appellant on 01.03.2019. Various documents two files containing pages 1 to 578 and 1 to 46 respectively seized from the office of the appellant without even mentioning as to what these files are about and what papers/documents do these files contain. 28.03.2019 OA dated 28.03.2019 under Section 17(4) of PMLA related to the searches conducted at the premises of the appellant bearing OA No. 294/2019 filed by the Assistant Director, Directorate of Enforcement. Undated Adjudicating Authority passed the impugned undated order recording satisfaction in terms of Section 8(1) of PMLA, 2002. 10.04.2019 Pursuant to the above mentioned undated order, the Adjudicating Authority issued Show Cause Notice to the appellant in terms of Section 17(4) of PMLA, 2002. 10.04.2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to fix date for hearing and take other action u/s 8(2) and 8(3) shall be an order and they are appealable u/s 26(1) of PMLA. ii) All the actions u/s 8(1) to 8(3) are appealable under 26(1) of PMLA in addition to order of the Adjudicating Authority u/s 8(4) of PMLA. c) The above proposed legal implications will lead to multiple appeals against the retention order of the seizure/provisional attachment of assets, etc. passed by the Adjudicating Authority u/s 8(4) because according to petitioner appeal shall not only lie against the order passed by the Adjudicating Authority u/s 8(4) but against all the procedural acts by the Adjudicating Authority u/s 8(1) to 8(3) necessary to pass an order u/s 8(4). d) This further leads to another important question whether any act undertaken by the Adjudicating Authority u/s 8(1), 8(2) and 8(3) can legally be considered as order appealable u/s 26(1) even when the Adjudicating Authority can pass order only u/s 8(4). It is prayed that this Tribunal must decide the basic question before taking up the case for further orders. 5. Along with the written submission, Mr. Nitesh Rana also filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bout the contents of these documents which were seized. 8. The other submission of the learned counsel for the appellants is that the appellants are not named as accused in the FIR/RC, copy of reasons to believe were not served, thus, even the seizure memo prepared at the time of search and seizure is contrary to Rule 3(3)(A) read with Rule 5 of the PMLA(Forms, Search Seizure, Etc.) Rules, 2005 read with Section 65 of PMLA and Section 100 Cr. PC. 9. Mr. Rana admits that there are certain discrepancies while recording the reason to believe. He also admits thirty days notice was not given (as stipulated in section 8(1) of the Act). However, his submission is that the said discrepancies and defect can be cured under section 68 of PMLA and even time of 30 days can be given to the appellants to file reply which is main purpose of issuance of notice. 10. The learned counsel for the appellants has filed the written submission, Para-2 of the written submission reads as under: a. An undated impugned order is passed by the Ld. Adjudicating Authority, in which order, the Ld. Adjudicating Authority has perused the Original Complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order under section 8(1) of PMLA. 11. Counsel for the respondent in support of his argument has submitted that the appeal is not maintainable, the following judgements are referred Arun Kumar Mishra MANU/DE/0344/2014 ED vs. Md. Ghulam Ghouse Ors. Adarsh Chaudhary MANU/DE/1184/2002 Order of M/s. Balasore Alloys Ltd. UOI vs. Kunisetty Satya Narayna MANU/SC/5137/2006 12. After hearing, the order was reserved. Let me now first deal with the objection of maintainability of appeal. 13. The provision of Section 26 of PMLA, 2002 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) xxx xxx xxx (3) xxx xxx (4) On receipt of an appeal under sub-section (1), or sub-section (2), the Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto by this Court at this stage, as the petitioners were granted liberty to approach the Appellate Authority. (emphasis supplied) 15. It is argued on behalf of the appellants that a similar situation arose under the Protection of Women from Domestic Violence Act, 2005, it was held that the appeal is maintainable. Section 29 of the said Act reads as under: 29. Appeal.-There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later. The language used in Section 29 of the DV Act, no doubt, is similar to Section 26 of the PMLA, 2002. The Appellants place reliance on the judgments passed therein. a) The Hon ble High Court of Delhi in Maya Devi v. State of N.C.T. of Delhi, 2007 SCC OnLine Del 1349 had held as under: 5. Section 29 of the Act provides for appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent. 6. When specific re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19. In the present cases, the respondent has merely seized two files containing papers. The appellants at the appropriate time is entitled to receive the copies thereof under sub section 2 of Section 21 of the Act. This Tribunal is of the view that no exception in the present appeals has been created by the appellants. 20. The arguments on behalf of respondent is that the appellants, if so required, may raise all objections before Adjudicating Authority in their reply and the said objections will be decided on merit. 21. In the present appeals, having considered the nature of the seizure at present this tribunal is of the view that there is hardly any hardship if the objections raised by the appellants be decided by the Adjudicating Authority within time-bound manner. The Appellants inter-alia have challenged the validity of recording the reasons to believe, issuances of notice under Section 8(1) of the Act and seizure memos. 22. As far as objections raised by the appellants are concerned, no doubt, prima facie, there is some substance in the arguments of the counsel for the appellants. However, in my view, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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