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TMI Blog2019 (12) TMI 1506X X X X Extracts X X X X X X X X Extracts X X X X ..... has been filed. It is submitted by ld. counsel for the appellant that appellant has received a notice u/s 8(4) of PMLA dt. 12..12.2019 received by the appellant on 13.12.2019. Wherein the ED has issued eviction notice directing to the appellant to handover the peaceful possession of the property within 10 days. The details of the property are mentioned below:- "Farm house at E-block, Asola Farms, New Delhi." The 10 days of notice is expiring today. it is further contended by the ld. counsel for the appellant that the property in question is a farm house and at present it is in occupation of Sumarkhan Enterprises Pvt. Ltd. owned by company and Family member of the appellant are share holders in the said company and they are residing in the said property. The ld. counsel for the appellant states that the word possession mentioned in the act, does not mean actual possession at this stage. The actual possession can be taken on only after completion of trial where, if the appellant is convicted. Till that stage ED can only take the legal and constructive possession of the property. In this regard he is relying on a judgment passed by Hon'ble High Court of Madras in the matter of A. K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 8(5) does not speak about returning the possession of the property back to the accused. 60. Therefore, in my considered view, there are only two alternatives to resolve this lock jam. One is to understand Section 8(4) to mean that the expression "confirmed" used therein, should be understood to mean "final". In other words, Section 8(4) is to be understood to mean that upon the order of attachment attaining finality under Section 8(3)(b), the Director shall take possession of the property. The second alternative is to see if the expression "possession" used therein can be taken to mean "actual physical possession". If it is not, then even on a plain reading of Section 8(4), without uprooting the expression "confirmed" appearing therein, it is possible to synchronise Section 8(4) with Section 8(5). ................................. .................................... 67. But it is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction {Kedar Nath Singh vs. State of Bihar {AIR 1962 SC 955}. The C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e management of properties confiscated under Chapter III of the Act. Interestingly, Section 10(2) empowers the Administrator appointed by the Central Government, to receive the property and manage it, only after an order of confiscation is passed under Section 8(6). In other words, the Administrator receives the property and starts managing the property only after conviction by the Criminal Court and only after confiscation under Section 8(6). Therefore, necessarily, the property is to remain in the possession of the Director/Central Government from the stage at which a confirmation is granted by the Adjudicating Authority under Section 8(3) till the stage at which a confiscation is passed under Section 8(6). In the interregnum between the confirmation under Section 8(3) and confiscation under Section 8(6), there is no scope for the management of the property by the Administrator. The question as to how the property will be managed during the said period is left open in the Act for anybody's guess. 72. Similarly, the first proviso under Section 9 postpones the vesting of a confiscated property in the Central Government, free of all encumbrances, till a declaration is made by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession. But the respondents, including the Adjudicating Authority, have understood the expression to mean actual physical possession. This is on account of the interpretation placed by the High Court of Andhra Pradesh and hence, the petitioners are entitled to a limited relief, as otherwise, the Adjudicating Authority as well as the Appellate Authority, are obliged to follow only the interpretations given by the Andhra Pradesh High Court with regard to actual physical possession. ..................... ................... The appellant, through learned counsel, undertakes that the appellant will not alienate /transfer or dispose of the property in any manner. He further submits that the property are attached as value equivalent thereof and he is ready to deposit the amount to the extent of Rs. 1,94,52,347/- by way of fixed deposit in favour of "The Registrar, Appellate Tribunal, New Delhi. It is also contended by ld. counsel of the appellant that he has a good prima facie case and balance of convenience lies in his favour and if the operation of the notice and the operation of the impugned order is not stayed, the appellant will suffer from irreparable injury which cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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