TMI Blog2020 (12) TMI 1097X X X X Extracts X X X X X X X X Extracts X X X X ..... ntrary to the record while saying that no notice was ever issued to him, whereas respondent No.2 was issued as many as 17 notices in total w.e.f. 29.11.2011 to 14.02.2020 and he also filed as many as 10 replies to the notices. He was also issued summons, which are annexed as Annexures A-4 to A-29. It shows that respondent No.2 was well aware about the pendency of proceedings but still he did not opt to file any appeal before the Tribunal. The arguments raised by learned Senior counsel is also contrary to the record that there was no partition of the property, whereas in the affidavit dated 17.01.2005 filed by respondent No.1 before the Returning Officer during Assembly Election held in the year 2005, he himself had declared his share as 50% in the residential house constructed over the land bearing Khewat No.97/98/99 and 104 in village Teja Khera, Tehsil Dabwali, Distt. Sirsa, which has been provisionally attached vide order dated 13.04.2019 which was subsequently confirmed on 25.04.2019 by the Adjudicating Authority - there is no provision in PMLA as well as Rules 2013 which allows de-sealing/release of the attached property temporarily for the use of the accused persons. As per t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed by the Appellate Tribunal, Prevention of Money Laundering Act at New Delhi, whereby the applications moved by the respondents for seeking interim restoration of the attached property for using the same for the purpose of marriage, to be held on 27.11.2020 and 30.11.2020, have been allowed with the direction to hand over the possession of the attached property to the appellant on or before 07.12.2020. Respondents are facing proceedings under the Prevention of Money Laundering Act, 2002 (hereinafter referred to as PMLA ). Appellant issued Provisional Attachment Order (PAO) No. 02/2019 and filed Original Complaint (OC) before the Adjudicating Authority for confirmation, which was confirmed vide order 25.09.2019. Said order dated 25.09.2019 was challenged before the Appellate Tribunal by respondent No.2 (Abhay Singh Chautala) as Pairokar (exponent/proponent). Thereafter, an application was moved by respondent No.2 for impleading him as Intervenor as appellant No.2, which was allowed vide order dated 22.10.2020. Respondents No.1 and 2 filed two separate applications for seeking interim restoration of the attached property, which were allowed vide order dated 22.10.2020, dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot only perverse but against the record as well. The impugned order is also violative of statutory provisions as contained in PMLA and Rules 2013 as there is no provision for de-sealing the property temporarily or interim release of property during pendency of the proceedings. Learned counsel also submits that the applications moved by the respondents have been allowed contrary to the provisions of Section 3 and Section 8(4) of PMLA as in absence of any opportunity granted for hearing, the appellant could not rebut the contentions raised by the counsel for the respondents. Even the relevant provisions of law have not been rightly appreciated. Wrong findings have been recorded that respondent No.2 was not aware about the proceedings and no notice was ever issued to him, whereas in total 17 notices were sent and 10 replies were also filed by him. The finding that he was not aware about the proceedings pending before the E.D. is totally wrong and contrary to the facts/record. Learned counsel also submits that in the impugned order only the relevant provisions of PMLA and Rules 2013 have been mentioned but the same have not been discussed/appreciated at all. It is also the argument of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,99,86,300/- and the respondents had also offered to pay said amount to E.D. but their request was not accepted. He has also relied upon Andhra Pradesh High Court's judgment in B. Rama Raju's case (supra), Delhi High Court's judgment in Axis Bank's case (supra), Madras High Court's judgment in case Dr. V. M. Ganesh Vs. The Registrar, Appellate Tribunal, Prevention of Money Laundering, Department of Revenue and others CMA No.1451 of 2015 M.P. No.1 of 2015 decided on 29.04.2019 and order dated 23.12.2019 passed by the Appellate Tribunal for SAFEMA, NDPS FEMA, NDPS, PMLA PBPT Act, at New Delhi in case MP-PMLA-6767/CHD/2019 (U.H.) titled as Om Parkash Chautala Vs. The Joint Director, Directorate of Enforcement, Chandigarh, in support of his arguments. Heard arguments of learned counsel for the parties. We have also perused the provisional attachment order, both the orders passed by the Appellate Tribunal i.e. order dated 22.10.2020 as well as the impugned order dated 18.11.2020 (Annexure A-1) and the order of remand passed by this Court dated 17.11.2020. The issue for determination by this Court is : Whether the property attached under Section 5 of PMLA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed : Provided that no such order of attachment shall be made unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under section 173 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint has been filed by a person authorised to investigate the offence mentioned in that Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be, or a similar report or complaint has been made or filed under the corresponding law of any other country: Provided further that, notwithstanding anything contained in [first proviso], any property of any person may be attached under this section if the Director or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section has reason to believe (the reasons for such belief to be recorded in writing), on the basis of material in his possession, that if such property involved in money-laundering is not attached immediately under this Chapter, the non-attachment of the property is likely to frustrate any proceeding under this Act.] [Provided also that for the purposes of computing the period of one h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confiscated by the Central Government : Provided that where a notice under this sub-section specifies any property as being held by a person on behalf of any other person, a copy of such notice shall also be served upon such other person : Provided further that where such property is held jointly by more than one person, such notice shall be served to all persons holding such property. (2) The Adjudicating Authority shall, after - (a) considering the reply, if any, to the notice issued under subsection (1); (b) hearing the aggrieved person and the Director or any other officer authorised by him in this behalf, and (c) taking into account all relevant materials placed on record before him, by an order, record a finding whether all or any of the properties referred to in the notice issued under sub-section (1) are involved in money-laundering: Provided that if the property is claimed by a person, other than a person to whom the notice had been issued, such person shall also be given an opportunity of being heard to prove that the property is not involved in money-laundering. (3) Where the Adjudicating Authority decides under sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be conducted by reason of the death of the accused or the accused being declared a proclaimed offender or for any other reason or having commenced but could not be concluded , the Special Court shall, on an application moved by the Director or a person claiming to be entitled to possession of a property in respect of which an order has been passed under subsection (3) of section 8, pass appropriate orders regarding confiscation or release of the property, as the case may be, involved in the offence of money laundering after having regard to the material placed before it.] [(8) Where a property stands confiscated to the Central Government under sub-section (5), the Special Court, in such manner as may be prescribed, may also direct the Central Government to restore such confiscated property or part thereof of a claimant with a legitimate interest in the property, who may have suffered a quantifiable loss as a result of the offence of money laundering: Provided that the special court shall not consider such claim unless it is satisfied that the claimant has acted in good faith and has suffered the loss despite having taken all reasonable precautions and is not involved in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Election held in the year 2005, he himself had declared his share as 50% in the residential house constructed over the land bearing Khewat No.97/98/99 and 104 in village Teja Khera, Tehsil Dabwali, Distt. Sirsa, which has been provisionally attached vide order dated 13.04.2019 which was subsequently confirmed on 25.04.2019 by the Adjudicating Authority. Moreover, there is no provision in PMLA as well as Rules 2013 which allows de-sealing/release of the attached property temporarily for the use of the accused persons. As per the order passed by this Court, both the parties were directed to appear before the Appellate Tribunal on 18.11.2020. The case was fixed only for appearance of the parties. The case should have been adjourned for any other date for arguments and for production of record but the impugned order was passed on that very day without going through the record and without giving opportunity of hearing to the parties as well. Learned counsel for the appellant as well as respondents have relied upon Andhra Pradesh High Court's judgment in B. Rama Raju's case (supra). This judgment is not going to help the respondents. Rather the judgment is in favour of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed on that very day without giving any opportunity to the appellant for producing the relevant record. The observations made by the Appellate Tribunal in the impugned order may effect the outcome of the main case, which is still pending for 28.01.2021. On perusal of impugned order it is also apparent that only the provisions of PMLA and Rules 2013 have been mentioned/reproduced but there is no appreciation of the same. Meaning thereby, the impugned order dated 18.11.2020 is contrary to the provisions of PMLA and Rules 2013 as well as the observations made by this Court in the earlier writ petition. In spite of specific directions issued by this Court still stereotype order has been passed. Meaning thereby there is no compliance of the order passed by this Court. No reason, whatsoever, with regard to non-compliance of the specific provisions of the statute by the Enforcement Directorate has been made in the impugned order. There is no finding as to how, when and where there has been non-compliance or violation of the statutory procedural and mandatory provisions of law. Accordingly, it can safely be said that the impugned order is not only bad in law but contrary to the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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