TMI Blog2019 (9) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... ement benefits and LIC polices. It is also stated by the ld. counsel for the appellant that the same cannot be proceeds of crime. It is apparent that while passing the impugned order, the reply of the appellant has not been dealt with or discussed at all nor any finding arrived by the adjudicating authority that the said FDs and LIC policies which were in the name of Father and mother of the appellant were the proceeds of crime or the appellant has derived the funds towards the same. Nothing has been discussed in the impugned order, even copy of the reasons to believe has not been filed nor produced during the course of the arguments. They are never charsheeted under any offence. Impugned order is set aside in respect of the appellant property - As far as the said LIC Polices and FDs, the same are de-sealed/de-frezeed forthwith - The impugned order has been passed without application of mind nor reply filed by the appellant has been considered by the Adjudicating Authority - appeal is allowed. - FPA-PMLA-2979/KOL/2019 - - - Dated:- 6-9-2019 - Justice Manmohan Singh Chairman And Shri G.C. Mishra Member For the Appellant : Mr. Anand, Mr. C Rajeshri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2002 (hereinafter referred to as PMLA). On the basis of these information and documents received from CBI, a prima facie case for an offence of money laundering under section 3 of PMLA punishable under section 4 of the said Act, appears to have been made out and accordingly investigation under the provisions of PMLA was initiated by registering an Enforcement Case Information Report on 04.07.2017 against M/s. Saharsh Vyapar Pvt. Ltd. and others. (b) During the course of investigation conducted under PMLA 2002, it was revealed that Sh. Siraj Mukherjee, Shri Ajay Shankar Roy s/o Prativa Shankar Roy are the Directors of the Company purportedly having their business of wholesale trading of chemicals used in leather industries. After availing the Cash Credit facilities Shri Ajay Shankar Roy without any prior intimation to the bank retired from the Directorship of the Company and in this place Smt. Mayuri Mitra D/o Jivan Kr. Mitra, w/o Sh. Siraj Mukherjee joined as Director of the Company. The Directors of the Company conspired together with dishonest intention and fraudulently cheated SBI and got the sanction of Cash Credit Limit and stand by Line of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly members have contacted Mr. Amit Banerjee for any rent after that. Whereabouts of Mrs. Lalita Shri is not known. This represents a very suspicious transaction. Similarly for the other two floors also agreements dated 02 November 2015 were executed between Mrs. Lalita Shri and Mrs. Sanchari Banerjee. Mrs. Sanchari Banerjee similar to Mr. Amit Banerjee was paying ₹ 40,000/- as rent per month to Mrs. Lalita Shri. Mrs. Sanchari Banerjee has also not paid any rent after May, 2016. She also does not know the whereabouts of Mrs. Lalita Shri. This represents a very suspicious transaction. The ground floor of the house was rented to Miss. Neha Panda of M/s. Desi Trunk was actually a company of Shri Rakesh Banerjee. Miss Neha Panda of M/s. Lalita Shri. Miss Neha Panda of M/s. Desi Trunk has also not paid any rent after May, 2016. She also does not know the whereabouts of Mrs. Lalita Shri. This also represents a very suspicious transactions. 4. It is also stated by the respondent that it has been revealed in investigation that the main activity of Saharsh Vyapaar Pvt. Ltd. was carried out by Shri Siraj Mukherjee, Shri Sandip Bharti, S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) As per Section 17(1) of the Act, the authorities had to discharge burden of reason to believe (the reasons for such belief to be recorded in writing) and only then proceed further. The only material available on record which contains reason to believe is the ECIR No. KLZO/12/2017 dt. 04.07.2017 wherein there is no mention for the name of the defendant No. 3. But his premises were searched and the records were seized under Section 17(1) vide seizure Memo dt. 03.09.2018. The seizure memo do not contain any reason to believe as mandatorily required to be recorded in writing before making seizure of the records. The authorities have thus failed to discharge statutorily burden cast upon them for conducting such seizure. (b) In the absence of not recording of any reason to believe before searching the premises and /or seizing the records, the seizure itself is illegal and not sustainable. The records so seized by the authorities are required to be returned. (c) It is admitted fact that no moveable or immoveable properties were attached/seized as also mentioned in Para no. 5 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that CBI has filed a case against these respondents for defrauding SBI Chowringhee Branch Kolkata for an amount of ₹ 8 crore and charge sheet has been filed by the CBI before the competent court and matter is pending. ED has also carried out investigation intensively and it has been found that the loan amount received by these respondents have been misused in criminal conspiracy with other respondents and in order to gather further evidence in the matter search was conducted at the premises of 4 Respondents wherein largenumber of documents/properties had been recovered and seize. Since examination of these seized items will take time, applicant has requested permission for retention of these documents/properties. Respondents have not made any convincing and acceptable arguments to oppose the retention of seized documents/ properties and they have simply made arguments based on technical aspects. Therefore submission made by them are not strong enough to oppose the retention. In view of these discussion, there is a case for retention of the seized documents/property as it may be helpful in further investigation in the matter. Accordingly permission for retention of seizure mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me. Nothing has been discussed in the impugned order, even copy of the reasons to believe has not been filed nor produced during the course of the arguments. They are never charsheeted under any offence. 11. It is also pertinent to mention here that even after retention of the property, the father of the appellant had written one letter dated 01.05.2019 to the Assistant Director requesting him to release the polices as well as the FDs as he needs the urgent money for medical attention. Copy of the said letter is read as under: To, Sri A.G. Pandey, Assistant Director, Enforcement Directorate Salt Lake, Kolkata-700064. Summon No-AGP/448 dtd. 01/05/2019 Dear Sir, At the outset, I thank you for the kind courtesy shown to my daughter when she called on you on 20/05/2019. Kindly, note that on 23/11/2018 I have submitted all the necessary papers containing 925 pages, showing bonafied sources of funds for the 10 no of FDs, seized by your department on 03/09/2018 however, as desired, I am again enclosing a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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