TMI Blog2021 (6) TMI 1044X X X X Extracts X X X X X X X X Extracts X X X X ..... o in the notice issued under sub-section (1) are involved in money laundering. A microscopic and conjoint reading of Sections 5 and 8 of the MPL Act leaves no room for any doubt that orders of attachment issued by invoking Section 5 is 'provisional' in nature. Thus, the attachment order passed by the competent authority and reason to believe therefor is also tentative / provisional in nature subject to confirmation by the adjudicating authority. If Scheme ingrained in Sec.24 and 26 of the Act of 1988 is compared with the PML Act, it will be clear that the Scheme is almost pari materia. For this reason also, it is deemed proper to hold that adjudicating authority is best suited and statutorily obliged to consider the validity of provisional attachment order and the case put forth by the present appellants - there are substance in the argument of learned counsel for the appellants that despite specific pleading contained in para 5.7 of the writ petition, learned Single Judge has erroneously held that there is no such foundation in the pleadings of the writ petition. The appellants can very well to raise this relevant ground before the adjudicating authority an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge has erred in holding that there was no pleading regarding those 98 plots for which sale deeds have been executed, but no action has been taken in relation to said plots. Lastly, it is submitted that Sec.5(1) of the PML Act contains an expression reason to believe which is different from reason to suspect . In order to believe something there must be some definite material and mere suspicion cannot be the foundation of reason to believe . Reliance is placed on the judgment of Supreme Court in the case of Jyoti Prasad v/s State of Haryana (1993) Supp. (2) SCC 497 and Mohd. Aslam Merchant v/s Competent Authority (2008) 14 SCC 186 . 5. On the strength of aforesaid arguments, Shri Chhabra, learned counsel for appellants submits that order of learned Writ Court may be set aside and Writ Appeal may be allowed. In support of aforesaid submissions, Shri Chhabra has also filed written submissions and supplementary submission. 6. Shri Phadke, learned Asstt. Solicitor General appearing for the respondents supported the impugned order and submits that learned Single Judge has rightly held that appellant has an inhouse remedy under the PML Act. The impugned order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 10. Section 8(1) of the PML Act, 2002 reads as under:- 8. Adjudication. - (1) On receipt of a complaint under sub-section (5) of section 5, or applications made under sub-section (4) of section 17 or under sub-section (10) of section 18, if the Adjudicating Authority has reason to believe that any person has committed an [offence under section 3 or is in possession of proceeds of crime], it may serve a notice of not less than thirty days on such person calling upon him to indicate the sources of his income, earning or assets, out of which or by means of which he has acquired the property attached under sub-section (1) of section 5, or, seized (or frozen) under section 17 or section 18, the evidence on which he relies and other relevant information and particulars, and to show cause why all or any of such properties should not be declared to be the properties involved in money-laundering and confiscated by the Central Government: Provided that where a notice under this subsection 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 proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng authority. In that event, a further appeal is provided before the Appellate Tribunal. Section 49 provides further appeal to the High Court. We find support in our view in : (2015) SCC OnLine Delhi 7625 (Rai Foundation v/s The Director, Directorate of Enforcement Others)] . Relevant portion reads thus:- 11. A perusal of Section 5 of the Act makes it clear that the order passed under sub-section 1 is a provisional measure and valid for maximum period of 180 days. The provisional attachment has to be approved by the Adjudicating Authority after proper adjudication within 180 days. The act envisages three layers of the grievance redressal in addition to safeguards incorporated in Section 5(1) of the Act. The Adjudicating Authority may confirm or set aside the provisional attachment order on the basis of material produced by the parties before it. If Adjudicating Authority confirms the order of provisional attachment, the Act envisages appeal before the Appellate Tribunal. Section 42 of the Act provides further appeal to the High Court. Thus, it is clear that petitioner has an effective alternative remedy upto the High Court by way of adjudicating proceedings, appeal to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgments are of no assistance to the appellants. 15. The matter may be viewed from another angle. The Prohibition of Benami Property Transactions of 1988 (Act of 1988) u/S.24(3) provides power of provisional attachment. The said provisional attachment needs to be confirmed by the adjudicating authority u/S. 26 of the said Act. In WP No.10280/2017 ( Kailash Asudani Vs. Commissionr of Income Tax ) the petitioner assailed the provisional attachment order on the ground that the property in question was not a benami property and without proper application of mind and in absence of adequate material, the order of provisional attachment was passed. This Court declined interference by holding that:- The order impugned is provisional/tentative in nature. It is subject to judicial review by adjudicating authority. If order of adjudicating authority goes against the petitioner, the further forums of judicial review of said order is available to the petitioner before the appellate tribunal and then before this Court. Hence, against the tentative/provisional order, no interference is warranted by this court at this stage. As per the scheme of the Act, the petitioner can raise all ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
