TMI Blog2021 (4) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... n efficaciously be adjudicated by Forums provided under the Act. It is trite law that the writ petition at the stage of show cause notice is not maintainable. - It is also found that in addition to remedy available under Section 8 of the Act, the party/person aggrieved by an order made by Adjudicating Authority can prefer an appeal under Section 26 of the Act before the Appellate Tribunal and thereafter any person aggrieved by any decision or order of Appellate Tribunal can file an appeal before the concerned High Court, as provided under Section 42 of the Act. The fact that the High Court has wide jurisdiction under Article 226 of the Constitution, does not mean that it can disregard the substantive provisions of a statute and pas orders which can be settled only through a mechanism prescribed by the Statute. Considering various aspects including the multilayered remedies are available to the petitioner under the statute in which the impugned order of provisional attachment has been passed, we are not inclined to entertain this writ petition challenging the provisional attachment orderunder Section 5 of the Prevention of Money Laundering Act, 2002 - petition dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 20.08.2016, and the same was challenged before Hon'ble Apex Court in SLP No. 26351 of 2016. In SLP, an order dated 16.09.2016 was passed. As per interim order dated 16.09.2016, the respondents therein (including the petitioner) are free to use the sugar mills purchased by them as sugar mills and make them functional and if the sugar mills have gone out of production, the same cannot be transferred or otherwise alienated or encumbered without the permission of Hon'ble Apex Court. In this way, there is no question of alienation of the property and creation of third party right, as such, the impugned provisional attachment order is liable to be interfered by this Court in the writ jurisdiction. He further stated that before passing the provisional attachment order under Section 5 of the Act, the concerned authority is required to record the reasons to believe on the basis of material in his possession that if such proceeds of crime are concealed, transferred or dealt with in any manner then it would frustrate the proceedings relating to confiscation of such proceeds of crime and in the instant case, there is already an interim order of Hon'ble Apex Court and as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o settle the political rivalry and score and the same is abuse of process of law. The prayer is to entertain the writ petition and to pass an interim order staying the operation and implementation of impugned provisional attachment order no. 02 of 2021 dated 09.03.2021 Opposing the prayer of learned Senior Advocate appearing on behalf of the petitioner, Sri S.B. Pandey, Assistant Solicitor General of India assisted by Sri Shiv P. Shukla submitted that in view of the opportunity to the petitioner to plead its case before the statutory forum provided under Section 8 of the Act, the present writ petition challenging the provisional attachment order no. 02 of 2021 dated 09.03.2021 passed in exercise of power as envisaged under Section 5 of the Act, is not maintainable. This remedy is statutory remedy. He further stated that against the order of Adjudicating Authority under Section 8 of the Act, there is a provision of appeal under Section 26 before Appellate Tribunal and thereafter any person aggrieved by any decision or order of Appellate Tribunal can file an appeal under Section 42 of the Act before the concerned High Court. He submitted that in view of the statutory remedies avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) of section 5 or retention of property or record seized under section 17 or section 18 and record a finding to that effect, such attachment or retention of the seized property or record shall- (a) continue during the pendency of the proceedings relating to any scheduled offence before a court; and (b) become final after the guilt of the person is proved in the trial court and order of such trial court becomes final. (4) Where the provisional order of attachment made under sub-section (1) of section 5 has been confirmed under subsection (3), the Director or any other officer authorised by him in this behalf shall forthwith take the possession of the attached property. (5) Where on conclusion of a trial for any scheduled offence, the person concerned is acquitted, the attachment of the property or retention of the seized property or record under sub-section (3) and net income, if any, shall cease to have effect. (6) Where the attachment of any property or retention of the seized property or record becomes final under clause (b) of sub-section (3), the Adjudicating Authority shall, after giving an opportunity of being heard to the person concern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) The High Court within the jurisdiction of which the aggrieved party ordinarily resides or carries on business or personally works for gain; and (ii) Where the Central Government is the aggrieved party, the High Court within the jurisdiction of which the respondent, or in a case where there are more than one respondent, any of the respondents, ordinarily resides or carries on business or personally works for gain. Sri Pandey further submitted that in the instant case, it has not been urged by learned counsel for the petitioner that the impugned order is without jurisdiction or has been passed without any foundation as such also, the petitioner is under obligation to avail the remedies available under the statute. He further stated that prior to passing of the order of provisional attachment, the Act does not provide for giving an opportunity of hearing. In this way, the argument of learned counsel for the petitioner, on this aspect, is fallacious. It is further submitted that before the High Court of Delhi, a writ petition bearing W.P. (C) No. 5511 of 2019 : (Wave Hospitality Private Limited vs. Union of India) was filed challenging the provisional attachment order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o provide for confiscation of property derived from or involved in money laundering and for the matter connected therewith, the provision has been made in the Act. The Money Laundering is not only the threat, as aforesaid, to our country, but it is also affecting the entire world. Taking note of aforesaid, we are considering the issue of maintainability of instant writ petition challenging the provisional attachment order no. 2 of 2021 dated 09.03.2021 The intention behind the Act is to check the money laundering, as defined under Section 3 of the Act, the same reads as under:- 3. Offence of money-laundering -Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime and projecting it as untainted property shall be guilty of offence of money-laundering. Punishment for money laundering is provided under Section 4 of the Act. Section 5 deals with the provisional attachment, which is limited to 180 days only. Sections 6 to 11 deal with the constitution of Adjudicating Authority and adjudication process. It reflects from the aforesaid secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that an order of provisional attachment is akin to show-cause notice . This observation is based on the following main reasons; inferred by us from the provisions envisaged under Sections 5 8 of the Act:- (i) The life of provisional attachment order is 180 days only and there exists a statutory remedy to the concerned person against the same under Section 8 of the Act, which provides full-fledged hearing/trial and as also complete opportunity of hearing to the aggrieved person to present his case, (ii) Opportunity of hearing under Section 8 is not a post-decisional hearing (iii) After the adjudication, as per Section 8 of the Act, the order of provisional attachment can be confirmed or rescinded. (iv) In order to protect the right over the property, to avoid the prejudice to the concerned party on account of the action of the officials, the proper opportunity of hearing is provided to the concerned party under the Act itself. It is trite law that the writ petition at the stage of show cause notice is not maintainable. (Vide: Special Director vs. Mohd. Ghulam Ghouse, (2004) 3 SCC 440 : 2004 SCC (Cri) 826; Union of India v. Kunisetty Satyanarayana, (2006) 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the Act. We may usefully refer to the exposition of the Apex Court in Titaghur Paper Mills Co. Ltd. Another vs. State of Orrisa and Ors. 11(1983) 2 SCC 433, wherein it is observed that where a right or liability is created by a statute, which gives a special remedy for enforcing it, the remedy provided by that statute must only be availed of. In paragraph 11 of the above report, the Court observed thus:- 11. Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the Prescribed Authority under sub-section (1) of Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-section (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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