TMI Blog2020 (4) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... ment in any process or activity by which the illicit money is being projected as untainted. Date of occurrence of scheduled offence is not relevant, rather, date on which laundering of money is committed is the relevant date. Even if money was acquired prior to amending Act but accused has committed offence under Section 3 of act subsequent to coming of the Act he can be proceeded for offence of money laundering i.e. his involvement in projecting illicit money to be untainted. Attachment proceeding and criminal proceedings are two parallel and independent proceedings and are not dependent upon each other. Properties which are found liable for attachment after final adjudication can be confiscated after conviction of accused under Section of PML Act - Against the order passed by the appellate tribunal the aggrieved party under Section-42 of the PMLA has further right of appeal before the High Court, as such the order passed by the appellate tribunal by which instead of deciding the appeal and pass a final order, keeping the appeal pending till disposal of criminal prosecution lodged for offences punishable under Sections 3/4 of the PMLA pending before the PMLA Court, Patna i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of proceeds of crime generated from criminal activity from said crimes which are likely to be concealed and transferred to frustrate the proceeding relating to its confiscation. 5. Out of 27 cases reported two cases i.e. FIR No. 121 of 2010 dated 20.10.2010 registered at Jamalpur P.S for offences under Sections 302 of IPC and FIR No. 227 of 2010 dated 28.05.2010 registered at Kotwali (Munger) PS for offences under Sections 120B, 414, 420, 467 and 471 of the IPC, were found to be the scheduled offences under the PMLA against which charge sheets were filed against appellant no. 1. 6. The Deputy Director has passed the order of provisional attachments taking into account the letter of Superintendent of Police, Economic Offences Unit, Patna, and other materials and information collected/received by him during investigation and after passing the order of provisional attachment filed complaint before the adjudicating authority for confirmation of order of provisional attachment. 7. The Adjudicating Authority has held that he has gone through the original complaint, provisional attachment order and relied upon documents carefully and prima facie has reasons to believe that appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 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 trading in liquorwith licences in the name of his wife and brother who are appellant nos.2 and 3 and as such appellant no.1 has invested his illegal money into liquor trading in the name of his wife, brother and another employee to legalize his tainted money generated from proceed of crime. Appellant no.1 also runs a benami liquor shop in the name of his employee to legalise his proceeds of crime. 13. The adjudicating authority has concluded in para 13 of his order confirming attachment of properties and allowing the complaint filed by the authorized officer which reads as follows;- 13. On a thorough perusal of the PAO, complaint, relied upon documents, the investigations conducted by the ED and the statements recorded u/s 50 of the PMLA and on careful consideration of the arguments advanced on behalf of the Complainant and Defendants undersigned comes to the prima facie conclusion that the Defendants have committed the Scheduled Offence, generated proceeds of crime and laundered them. No doubt the properties attached are proceeds of cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... li (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 acquitted of charge and there is no material available on record that the above two criminal cases generated any pecuniary benefits to the appellant no. 1, which can be deemed to be proceeds of crime and liable for confiscation. 17. No nexus has been established that the amount from which the movable and immovable properties were purchased were proceeds of crime arising from any criminal activity. Authorities had no reason to believe that the properties liable for attachment are proceeds of crime and in order to pass an order of provisional attachment or confirmation of such attachment it was necessary for the authorities to have reasons to believe that the property liable to be attached was derived or obtained from proceeds of crime from criminal activity. 18. The expression reason to believe must be founded on the basis of material placed before the concerned authority and the belief must be in good faith and it cannot be a pretence. Such belief should not be based on mere suspicion but must be founded upon materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 establish that proceeds were generated from criminal activities. 22. Per contra, counsel for the respondents submitted that perusal of letter dated 4.11.2013 forwarded by the Superintendent of Police, EOU, Bihar , Patna revealed that Bharat Yadav appellant no.1 is a notorious criminal and is involved in many criminal offences which are also scheduled offences under PML Act and has acquired property in his own name as well as in the name of his wife, Satyabati Devi, appellant no.2 and in the name of his younger brother appellant no.3, Amit Kumar, from the proceeds of crime by investing the proceed of crime in various movable and immovable properties in an attempt to project it as untainted which is an offeence under Section 3 of the Act. 23. The income of appellants are far more excess from the income as shown in their income tax return and illegal cash has been layered through various bank account and finally integrated into main stream of economy by acquisition of movable and immovable assets which is a cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portunity 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 receipt of an appeal under subsection (1), or sub-section (2), the Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against. (emphasis is mine) (5) The Appellate Tribunal shall send a copy of every order made by it to the parties to the appeal and to the concerned Adjudicating Authority or the Director, as the case may be. (6) The appeal filed before the Appellate Tribunal under sub-section (1) or sub-section (2) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally within six months from the date of filing of the appeal. (emphasis is mine) 30. The appellate tribunal by order dated 25.07.2018, issued notice in appeal as well as stay application and directed no coercive action to be taken by the respondent till further orders. The respondents appeared befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 final order is pronounced by the Special Court . 33. The order passed by the appellate tribunal is misconceived as under Section-26 of the PML Act, the tribunal has been empowered to hear appeals against the order of the adjudicating authority filed by aggrieved party. The tribunal after hearing the parties, can confirm, modify or set aside the order appealled against. The appellate tribunal has to examine the legality, validity and propriety of the order passed by the adjudicating authority and either can confirm, modify or set aside the order under Appeal. Final order is to be passed within six months from the date of filing of appeal. 34. Attachment proceeding and criminal proceedings are two parallel and independent proceedings and are not dependent upon each other. Properties which are found liable for attachment after final adjudication can be confiscated after conviction of accused under Section of PML Act. 35. Against the order passed by the appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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