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TMI Blog2020 (4) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... Patna, vide letter no. 389/C dated 04.11.2013 reported 27 cases registered against Bharat Yadav (appellant no. 1). The letter further revealed that Bharat Yadav (appellant no. 1), was a habitual offender indulging in offences of robbery, dacoity, extortion and indulging in offences under the Arms Act since 1988. He has acquired properties in his own name as well as in the name of his family members from the proceeds of above-mentioned crime and invested said proceeds of crimes in various movable and immovable properties in an attempt to project them as untainted. Such investment represent the process of integration of the proceeds of the crime with the main stream economy. 4. On the basis of said letter ECIR No. PTZO/07/2014 dated 07.01.2014 was registered against the appellants and thereafter Deputy Director, E.D., Patna, passed provisional attachment order no. 1/2018 dated 01.01.2018 under Section 5(1) of the PMLA, by which movable and immovable properties and other investment amounting to Rs. 4,23,61,990/- belonging to appellants were provisionally attached on the ground that appellants are in possession of proceeds of crime generated from criminal activity from said crimes wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 10. Appellants have altogether 16 bank accounts and 8 bank accounts have zero balance whereas other 8 accounts have total balance of Rs. 13,59,4403/- and they have got 6 LIC policies for which premium of Rs. 29,08,988/- was paid. There total movable and immovable properties are valued at Rs. 4,23,61,990/- which is far excess to their known source of income. 11. On the basis of income tax return the total income of appellant no.1 comes to Rs. 21,87,410/-, income of M/s. Jai Ma Kali Construction comes to Rs. 16,71,914/-, income of M/s. Rani Construction comes to Rs. 5824/- and income from M/s. Khushboo Construction comes to Rs. 1,625/-, as such, total income comes to Rs. 38,66,773/- whereas, income of appellant no.2, wife of appellant no.1 comes to Rs. 49,60,718/- and income of appellant no.3, brother of appellant no.1 comes to Rs. 12,11,750/-, whereas valuation of properties in their possession is far more than said income. Huge deposits were found to be made in their bank account and total cash deposit made by appellants were found to be Rs. 16,66,48,823/- which is far in excess of their income declared in their income tax return. 12. Appellant no.1 also has business of tradi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property." 15. It is clear from the language of Section 2(u) of PMLA that the expression proceeds of crime refers to a property which is derived or obtained by any person as a result of criminal activity, as such in order to pass an order of provisional attachment/confirmation of attachment it is necessary for the competent authority to have reasons to believe that the properties liable to be attached were derived or obtained from proceeds of crime. 16. It has been submitted on behalf of appellant that there is no material whatsoever on the basis of which the competent authority/adjudicating authority could have reasons to believe that movable and immovable properties purchased by the appellants were derived or obtained from proceeds of crime generated from criminal activity relating to schedule offence. Appellant No. 1 Bharat Yadav, was charged for the offence punishable under Sections 302 bearing FIR No. 121 of 2010 dated 20.10.2010 registered at Jamalpur P.S and FIR No. 227 of 2010 dated 28.05.2010 registered at Kotwali (Munger) PS for offences under Section 120B, 414, 420, 467 and 471 of the IPC, which are schedule offences and in both of the cases appellant no. 1 has been a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through Indian Railways and sold it which was being carried mostly in cash through three business firms of appellant's family and acquisition of immovable movable properties were made from these legitimate sources of income and not from the proceeds of crime. There is no nexus that the acquisition of movable and immovable properties were derived from the proceeds of crime. Deposits lying in the bank account were derived from family income, agriculture and business activities. Liquor business is retail business for which appellants had valid licence since 2002 and in said business lot of cash is received, as such, they were required to handle huge amount of cash but details could not be provided as the books of accounts and ledgers were submitted to Bihar State Beverage Corporation Limited. Premium of LIC was paid by securing loan and was paid prior to commencement of PMLA. Loan amount deposited in bank account has also been held to be proceeds of crime. 21. Appellants have discharged their initial burden as contemplated under Section 24 of the Act by disclosing the source of legitimate income from which attached properties were acquired and onus thereafter shifted on E.D. to esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e prosecuted under Section ¾ of PML Act. 29. Aggrieved by the order of competent authority/adjudicating authority, appellant preferred an appeal before the appellate tribunal under Section 26 of the PMLA, which reads as follows:- "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) Any reporting entity aggrieved by any order of the Director made under sub-section (2) of section 13, may prefer an appeal to the Appellate Tribunal. (3) Every appeal preferred under subsection (1) or sub-section (2) shall be filed within a period of forty-five days from the date on which a copy of the order made by the Adjudicating Authority or Director is received and it shall be in such form and be accompanied by such fee as may be prescribed: Provided that the Appellate Tribunal may after giving an opportunity of being heard entertain an appeal after the expiry of the said period of forty five days if it is satisfied that there was sufficient cause for not filing it within that period. (4) On rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This Tribunal has not been assigned any specific powers under PMLA, 2002 with relation to confiscation, release or restoration of the property attached. Since the Special Court has initiated the proceedings in the present case and taken cognizance of the same, it is my considered view that the Special Court has to decide the case including the offence of money laundering as discussed above, which in any case only the Special Court can decide and not the Appellate Tribunal. The scheme of things as it exists under the PML Act shows that it is the same property which can be provisionally attached, thereafter this attachment can be confirmed by the adjudicating authority, that the order with regard to the same property would become final after an order of confiscation is passed by the Special Court (Section 8(3) (b), or released or restored as per section 8(6) or Section 8(8) second proviso as the case may be. 9. In the background, it would be appropriate to keep this appeal in abeyance until the Special Court who has already taken cognizance finally disposed of the case. The interim orders are also vacated. Both the parties are directed to inform this tribunal as and when the fina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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