TMI Blog2019 (7) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... on such record or make or cause to be made extracts or copies therefrom; make a note of an inventory or such record or property and to 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. In the present case, no report against the appellant has been forwarded to the Magistrate. No complaint against the appellant was filed before a Magistrate. No cognizance of schedule offence was taken by any authority or Additional Secretary to the Government of India. ' It was admitted in the impugned order that the gold jewellery may not be in any way related to the manipulation in share price or may not have any linkage but Adjudicating Authority wishes to retain the same for the purposes of investigation as there would not be any harm cause to the appellant. As a matter of fact, the Adjudicating Authority is duty bound on the basis of material to give the reasons that the party is involved in money laundering and property is acquired from proceed of crime - There is no specifically reference about the investigation about the jewellery and gold as to whether those are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on the basis on which the Enforcement Case Information Report No. ECIR/03/CDZO/2014 dated 29.12.2014 (herein after referred to as the ECIR ) was registered on the basis of a FIR No.RC2192014E 0002 dated 26.03.2014. The allegations made against the appellants in FIR are that on 12.01.2007 an application is made by the Appellant No.1 seeking allocation of coal block and after several rounds of disqualifications of various applicants for allocation of coal blocks, the Appellant No.1 Company was qualified and was initially recommended allocation of coal block vide letter no. 38011/1/2007-CA-1 dated 06th November, 2007 and finally allocation was made by the Ministry of Coal on 06th February, 2008. It is mentioned in the ECIR that As the Coal Block has been got allocated fraudulently; therefore the money generated on the basis of coal blocks is a Proceeds of Crime and such Laundered need to be investigated. 5. The Appellants appeared in the matter and filed reply raising various preliminary objections including that the Original Application is gross abuse of process of law and powers of seizure. 6. The basis of the present ECIR being the FIR No. RC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Amendment) Act, 2009 came into effect. It is by such amendment that Sections 420 and 120 B of the Indian Penal Code were made part of scheduled offences notified under The Prevention of Money Laundering Act, 2002. They are also prior to 15.2.2013, when The Prevention of Money Laundering (Amendment) Act, 2013 came into effect. It is by such amendment that Section 13 of The Prevention of Corruption Act, 1988 was made part of scheduled offences notified order The Prevention of Money- Laundering Act, 2002. 11. The Adjudicating Authority has come to the conclusion that the Adjudicating Authority is only concerned with the permission for retention of these seized items at the stage of passing of the order of freezing. 12. On 12.11.2018, the writ-petition was filed by the appellant in the High Court of Delhi at New Delhi, the same was disposed of on 12.11.2018 while passing the following order:- CORAM: HON BLE MR. JUSTICE VIBHU BAKHRU % O R D E R 12.11.2018 1. The petitioner has filed the present petition, inter alia, praying as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The pending application stands disposed of. 7. Order dasti under signatures of the Court Master. VIBHU BAKHRU, J November 12, 2018/MK 13. 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 money-laundering, or (ii) is in possession of any proceeds of crime involved in money-laundering, or (iii) is in possession of any records relating to money-laundering, (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 building, place, vessel, vehicle or aircraft where he has reason to suspect that such records or proceeds of crime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under sub-section(1) shall, immediately after search and seizure [or upon issuance 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in rank to him, or the Magistrate's Court. (5) The Gazetted Officer or the Magistrate before whom any such person is brought shall, 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 sub-section (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 subsection (5) in respect of the records or proceeds of crime found or seized in the course of the search: 18 [***] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subsection (1), the records shall be returned to the person from whom such records were seized or whose records were ordered to be frozen unless the Adjudicating Authority permits retention or continuation of freezing of such records beyond the said period. (4) The Adjudicating Authority, before authorising the retention or continuation of freezing 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 sub-section (2A) of section 60] , the Adjudicating Authority shall direct the release of the records to the person from whom such records were seized. (6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 73, (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 schedule 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 authorized 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. In the present case, no report against the appellant has been forwarded to the Magistrate. No complaint against the appellant was filed before a Magistrate. No cognizance of schedule offence was taken by any authority or Additional Secretary to the Government of India. 20. From the entire gamut of matter, the following peculiar and circumstances emerges: - ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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