TMI Blog2019 (1) TMI 1916X X X X Extracts X X X X X X X X Extracts X X X X ..... of PMLA, does not result in violation of constitutional right to property of the citizens since it was only a provisional attachment which would be valid only for a maximum period of 180 days or less. Although the Section provides for record of reasons to believe by the authority, failure to record at worst is only a statutory infraction and the same can be pleaded before the Adjudicating Authority. In such circumstances, non-recording of reasons by the Authority initiating action under Section 5 of PMLA becomes curable while initiating action under Section 8 of PMLA by the Adjudicating Authority. It is not in doubt that under PMLA, a full-fledged trial is envisaged before the Adjudicating Authority and any initial infraction could always be rectified. Ultimately, it is the Adjudicating Authority which will confirm the attachment and also will recommend for confiscation of the property when such opportunity is available before the Adjudicating Authority consisting of experts, it cannot be gainsaid by these writ petitioners that their interest is irrepairably prejudiced and their constitutional right is violated. ii) Further, nowhere in the Section itself, it has beenstipulated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of natural justice can be tested on the golden touchstone of prejudice and in this case, no prejudice is occasioned or caused to the writ petitioners since they have multiple alternative remedies as provided under PMLA before the Adjudicating Authority under Section 8; and before the appellate Authority under Section 26; and further appeal before this Court under Section 42 of PMLA. Once multi-layered remedies are provided for effective adjudication of disputes, the plea of violation of principles of natural justice is baseless and unfounded. v) The contention regarding coram non-judice, that the Adjudicating Authority is manned only by a single Member also cannot be countenanced with reference to explicit provision contained in Section 6 of PMLA and allied provisions, wherein it is provided for formation of Bench by less than three Members. Therefore, the issue of coram non-judice is answered against the writ petitioners, notwithstanding the fact that at the time of pronouncement of this order, the Adjudicating Authority is consisting of three Members. vi) The plea of alternative remedy is not a bar for entertaining the Writ Petition, can it best be a general proposition o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tat. Such activity will ultimately put the humanity as a whole to the precipice of irredeemable disaster. x) The submission of non-familiarity of local language by the Adjudicating Authority cannot be a valid ground for this Court to interfere with the impugned action initiated by the authorities concerned as such argument is misconceived and the same is without substance. These Writ Petitions are not maintainable - Petition dismissed. - W.P.(MD) Nos.11454, 14860 and 14894 to 14899 of 2018 and W.M.P(MD)Nos.13450 to 13455, 10442, 10443 & 13399 of 2018 - - - Dated:- 3-1-2019 - THE HONOURABLE MR. JUSTICE V.PARTHIBAN For the Petitioner : Mr.P.Wilson, SC for Mr.C.Arul Vadivel @ Sekar For the Respondents : Mr.G.Rajagopalan Additional Solicitor General of India assisted by Mr.K.K.Senthilvelan COMMON ORDER All these Writ Petitions raise common issues and grounds and therefore, they are taken up together for final disposal and being disposed of vide this common order. 2. These Writ Petitions are challenging the action initiated by the first respondent in passing the respective orders of provisional attachment of properties under Section 5(1) of the Prevention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l)? 4. On behalf of the Writ Petitioners, the above preliminary objections were raised in order to invite this Court to intervene the action initiated by the respondents under PMLA at the stage of provisional attachment and issuance of show cause notice by the respondents. Issues Nos.(i) to (iii): (i) The first respondent has not recorded reasons to believe while ordering provisional attachment under Section 5 (1) of PMLA. In the absence of reasons to be recorded in writing as per the said action, whether the provisional attachment order is sustainable as the same being contrary to PMLA? (ii) The Adjudicating Authority while issuing show cause notice under Section 8(1) of PMLA, must have reason to believe that a person has committed offence under PMLA. Whether in the absence of reasons, the show cause notices issued under Section 8(1) of PMLA are sustainable as being contrary to the provisions of PMLA? (iii) Whether non-record of reasons and non-communication of reasons can be held to be violation of the established principles of natural justice? 5. Shri P.Wilson, learned Senior Counsel appearing for the petitioners in all the Writ Petitions would draw th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the non-attachment of the property is likely to frustrate any proceeding under this Act. (2) The Director, or any other officer not below the rank of Deputy Director, shall, immediately after attachment under sub-section (1), forward a copy of the order, along with the material in his possession, referred to in that subsection, to the Adjudicating Authority, in a sealed envelope, in the manner as may be prescribed and such Adjudicating Authority shall keep such order and material for such period as may be prescribed. (3) Every order of attachment made under sub-section (1) shall cease to have effect after the expiry of the period specified in that sub-section or on the date of an order made under sub-section (2) of section 8, whichever is earlier. (4) Nothing in this section shall prevent the person interested in the enjoyment of the immovable property attached under sub-section (1) from such enjoyment Explanation.- For the purposes of this sub-section person interested , in relation to any immovable property, includes all persons claiming or entitled to claim any interest in the property. (5) The Director or any other officer who provisionally attaches any property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easons to believe is not reflected, either. 8. In support of his above contentions, the learned Senior Counsel would rely on the following decisions of the Hon ble Supreme Court and various other High Courts, contending that recording of reasons is mandatory and ought to be meaningful and purposeful and not merely in expression by the official concerned that he has reason to belief for such action being initiated against the alleged offenders, viz., i) Order passed by the Delhi High Court, reported in 2018 SCC OnLine Del 6523 (J.Sekar versus Union of India others, etc.) . The learned Senior Counsel placed reliance of the judgment in extenso and he would take this Court to various findings of the Delhi High Court in respect of same subject matter under PMLA, which is under consideration before this Court, as found in paragraphs 59, 60, 62, 69 to 78 and 87, which are extracted hereunder: 59. The fact that the Director will, therefore, have to first apply his mind to the materials on record before recording in writing his reasons to believe is certainly a sufficient safeguard to the impulsive invocation of the powers under the second proviso to Section 5(1) PMLA. 60. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8(1)PMLA, the AA is not supposed to mechanically issue an SCN. The AA has to apply its mind and again record the its reasons to believe that any person has committed an offence under Section 3 PMLA or is in possession of proceeds of crime. Here again, two kinds of persons are envisaged: (i) a person who has committed an offence under Section 3 PMLA; and (ii) A person who happens to be in possession of proceeds of crime. 63. to 68. .. . . 69. What should constitute the ?reasons to believe' that are to be recorded? In this context, it must be seen that even for the exercise of power under Section 5(1), the Director/Deputy Director/Authorized Officer has to record his reasons to believe in writing. That is the expression that is used in the second proviso to Section 5(1) PMLA as well. It is the same expression that is used even as far as the powers exercised by the AA under Section 8(1) PMLA are concerned. 70. The expression reasons to believe' under Section 26 IPC is understood in the sense of ?sufficient cause to believe that thing but not otherwise'. In Phool Chand Bajrang Lal v. ITO [1993] 203 ITR 456 (SC), the Supreme Court in the context of the Income T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve noticed herein before that when the authority was called upon to disclose the reasons, it was stated that all the reasons were contained in the show cause notices themselves. They, however, in our opinion, do not contain any reason so as to satisfy the requirements of sub-section (1) of Section 68H of the Act.? 72. Reasons to believe cannot be a rubber stamping of the opinion already formed by someone else. The officer who is supposed to write down his reasons to believe has to independently apply his mind. Further, and more importantly, it cannot be a mechanical reproduction of the words in the statute. When an authority judicially reviewing such a decision peruses such reasons to believe, it must be apparent to the reviewing authority that the officer penning the reasons has applied his mind to the materials available on record and has, on that basis, arrived at his reasons to believe. The process of thinking of the officer must be discernible. The reasons have to be made explicit. It is only the reasons that can enable the reviewing authority to discern how the officer formed his reasons to believe. As explained in Oriental Insurance Company v. Commissioner of Income Tax [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... untability and transparency. k. If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or `rubber-stamp reasons' is not to be equated with a valid decision making process. m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harvard Law Review 731-737). n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of India that there is no mandatory requirement, under Section 8(1) PMLA, to communicate to the noticee the reasons to believe. On a collective reading of Section 5(1) PMLA and Section 8(1) PMLA, such an interpretation is contraindicated and cannot satisfy the requirement of what the AA is supposed to do under Section 8(2) PMLA, viz. to consider the reply of the noticee, give them and the Director a hearing and ?take into account' all relevant materials placed on record. 77. Although at the stage of issuance of notice under Section 8(1) PMLA all the relevant material on record which constituted the basis for reasons to believe may not be made available, if the noticee demands to see those materials on record, the AA is bound to make available all those materials on record to them. It is most likely that without such access to such material on record, the noticee will be unable to file an effective reply. Therefore, there cannot be any denial of access to the noticee of the materials on record. If there is any sensitive material, it can probably be redacted before issuing copies thereof, after noting the reasons for such redaction in writing in the file. But even such reda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubber stamp of the opinion already formed by someone else and the Officer in whose obligation to record reasons, must independently apply his mind. ii) (1976) 1 SCC 1001 (M/s.Ajantha Industries and others versus Central Board of Direct Taxes, New Delhi and others) , wherein, the learned Senior Counsel would draw the attention of this Court to paragraphs 10 and 11 which are extracted hereunder: 10. The reason for recording of reasons in the order and making these reasons known to the assessee is to enable an opportunity to the assessee to approach the High Court under its writ jurisdiction under Article 226 of the Constitution or even this Court under Article 136 of the Constitution in an appropriate case for challenging the order, inter alia, either on the ground that it is based on irrelevant and extraneous condonations Whether such a writ or special leave application ultimately fails is not relevant for a decision of the question. 11. We are clearly of opinion that the requirement of recording reasons under Section 127(1) is a mandatory direction under the law and non-communication thereof is not saved by showing that the reasons exist in the file although not communi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment and that the amount of such concealed income relating to the Accounting years covering the period beginning on the 1st day of September, 1939 and ending on the 31st day of March, 1949, amount to or is likely to amount to ₹ 1,00,000/-. The reason for such belief, inter alia, is as follows :- (1) The assessee who is or was at the relevant time a Managing Director in about a dozen limited companies, along with Oberois is believed to have made some secret profits which were not offered for assessment. (2) The assessee is believed to have received a sum of ₹ 22 lakhs from Oberois ,and this sum or at least part of which represents income has escaped assessment. Sd/- (A. K. BHOWMIK) Income-tax Officer, Distt. 11 (2), Calcutta . 9. It is abundantly clear that the two reasons which have been given for the belief which was formed by the Income Tax Officer hopelessly fail to satisfy the requirements of the statute. In a recent case-Chhugamal Rajpal 18 2 v. S. P. Chaliha and Others ')which came up before this Court, a similar situation had arisen and under the direc- tions of the Court, the Department produced the records to show that the Income Tax O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding reasons is mandatory as repeatedly held by the Courts. iv) (1978) 1 SCC 405 (Mohinder Sigh Gill and another versus The Chief Election Commissioner, New Delhi and others) , wherein, the learned Senior Counsel would rely on paragraph 8 which is extracted hereunder: 8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought ,out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (1) Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in Ms mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income-tax Officer at the time of making the original assessment could or, could not have found by further enquiry or investigation, whether the transaction was genuine or not, if one the basis of subsequent information, the Income-tax Officer arrives at a conclusion, after satisfying the twin conditions prescribed in Section 147(a) of the Act, that the assessee had not made a full and true disclosure of the material facts at the time of original assessment and therefore income chargeable to tax had escaped assessment. The High Courts which have interpreted Burlop Dealer's case (Supra) as laying down law to the contrary fell in error and did not appreciate the import of that judgment correctly. vi) (2010) 9 SCC 496 (Kranti Associates Private Limited and another versus Masood Ahmed Khan and others) , wherein, it has been held by the Hon ble Supreme Court in pargraphs 47 and 48, as under: 47. Summarizing the above discussion, this Court holds: a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. b. A quasi-judicial authority must record reasons in support of its conclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mponent of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, adequate and intelligent reasons must be given for judicial decisions . o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of Due Process . 48. For the reasons aforesaid, we set aside the order of the National Consumer Disputes Redressal Commission and remand the matter to the said forum for deciding the matter by passing a reasoned order in the light of the observations made above. Since some time has elapsed, this Court requests the forum to decide the matter as early as possible, preferably within a period of six weeks from the date of service of this order upon it. According to the learned Senior Counsel, reasons must be made known even in the administrative decisions. vii) (2016) 1 High Court Cases (Del) 265 (Mahanivesh Oils ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the concerned officer had any cause to so believe. 51. The expression 'reason to believe' has also been the subject matter of several decisions of the Supreme Court albeit in the context of other laws. In the case of Aslam Mohd. Merchant v. Competent Authority Ors: (2008) 14 SCC 186, the Supreme Court considered the meaning of the expression 'reason to believe' in the context of Narcotic Drugs and Psychotropic Substances Act, 1985. The Supreme Court referred to its earlier decisions rendered in the context of Section 147 of the Income Tax Act, 1961 where a similar expression has been used to clothe an Assessing Officer with the power to reopen income tax assessments. In Phool Chand Bajrang Lal v. ITO: (1993) 203 ITR 456 (SC), the Supreme Court held as under: Since the belief is that of the Income- tax Officer, the sufficiency of reasons for forming this belief is not for the court to judge but it is open to an assessee to establish that there in fact existed no belief or that the belief was not at all a bona fide one or was based on vague, irrelevant and non- specific information. To that limited extent, the court may look into the conclusion arrived at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ords that the concerned officer has reason to believe that the property in question is likely to be concealed, transferred or dealt with in a manner, which may result in frustrating the proceedings relating to confiscation of the said proceeds of crime, there is no reference to any fact or material in the impugned order which could lead to this inference. A mere mechanical recording that the property is likely to be concealed, transferred or dealt with would not meet the requirements of Section 5(1) of the Act. Consequently, the impugned order is likely to be set aside. The above case dealt with the same Act wherein, the High Court has held that the Authority must record reason to believe that the property in question is likely to be concealed, transferred or dealt with in the manner, which may result in frustrating the proceedings relating to confiscation of such property. There must be existence of fact that the property is likely to be transferred, only then the Authority could initiate proceedings under Section 5(1) of PMLA. The High Court has also held that mere mechanical recording that 'the property is likely to be concealed, transferred or dealt with' would not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are in the custody of the court. Therefore, the order of attachment is not maintainable. (ix) (2008) 14 SCC 186 (Aslam Mohammad Merchant versus Competent Authority and others) , wherein, the learned Senior Counsel would draw reference to paragraphs 39 to 41 and 46, 47 and 50 to 62, which are extracted hereunder: 39. Section 68-H of the Act provides for two statutory requirements on the part of the authority viz: (i) he has to form an opinion in regard to his `reason to believe'; and (ii) he must record reasons therefor. 40. Both the statutory elements, namely, `reason to believe' and `recording of reasons' must be premised on the materials produced before him. Such materials must have been gathered during the investigation carried out in terms of Section 68-E or otherwise. Indisputably therefore, he must have some materials before him. If no such material had been placed before him, he cannot initiate a proceeding. He cannot issue a show cause notice on his own ipse dixit. A roving enquiry is not contemplated under the said Act as properties sought to be forfeited must have a direct nexus with the properties illegally acquired. 41. It is now a trite law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erm reason to believe mean. We may in this behalf notice some precedents operating in the field. 51. In the context of the provisions of Section 147 of the Income Tax Act, this Court in Phool Chand Bajrang Lal Vs. ITO : [1993] 203 ITR 456] held:- From a combined review of the judgments of this court, it follows that an Income-tax Officer acquires jurisdiction to reopen an assessment under section 147(a) read with section 148 of the Income-tax Act, 1961, only if on the basis of specific, reliable and relevant information coming to his possession subsequently, he has reasons, which he must record, to believe that, by reason of omission or failure on the part of the assessee to make a true and full disclosure of all material facts necessary for his assessment during the concluded assessment proceedings, any part of his income, profits or gains chargeable to income-tax has escaped assessment. He may start reassessment proceedings either because some fresh facts had come to light which were not previously disclosed or some information with regard to the facts previously disclosed comes into his possession which tends to expose the untruthfulness of those facts. In such situatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Amin (supra), was also included herein. Once the show cause notice is found to be illegal, the same would vitiate all subsequent proceedings. 55. In Dilip N. Shroff Vs. Joint Commissioner of Income Tax, Mumbai and Another [(2007) 6 SCC 329], this Court held: 86. It is of some significance that in the standard pro forma used by the assessing officer in issuing a notice despite the fact that the same postulates that inappropriate words and paragraphs were to be deleted, but the same had not been done. Thus, the assessing officer himself was not sure as to whether he had proceeded on the basis that the assessee had concealed his income or he had furnished inaccurate particulars. Even before us, the learned Additional Solicitor General while placing the order of assessment laid emphasis that he had dealt with both the situations. The impugned order, therefore, suffers from non- application of mind. It was also bound to comply with the principles of natural justice. (See Malabar Industrial Co. Ltd. Vs. CIT) RECORDING OF REASONS 56. Submission of Mr. Singh that the appellants have not been able to discharge the burden of proof which was on them from the impugned ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xt of Narcotic Drugs and Psychotropic Substance Act, 1985, wherein a similar provision is existing. The Hon ble Supreme Court has interfered with the action initiated under PMLA that the statutory requirements have not been fulfilled, namely, non-recording of the reasons and nonapplication of mind, etc. (x) AIR 1967 SC 1269 (State of Orissa versus Dr.(Miss) Binapani Dei and Others) , wherein, reference is drawn to paragraph 12 which is extracted as under: 12. It is true that some preliminary enquiry was made by Dr. S, Mitra. But the report of that Enquiry Officer was never disclosed to the first respondent. 'The rafter the first respondent was required to show cause why April 16, 1907, should not be accept das the date of birth and without recording any evidence the order was passed. We think that such an enquiry and decision were contrary to the basic concept of justice and cannot have any value. It is true that the order is administrative in character, but even an administrative order which involves civil consequences as already stated must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these principles which we broadly classify under the designation of natural justice. Many testing problems as to their application yet remain to be solved. But I affirm that the area of administrative action is but one area in which the principles are to be deployed. It may be indicated herein that the aforesaid observation was quoted with approval by this Court in the decision in Maneka Gandhi v. Union of India [1978] 2 SCR 62 1. In State of Orissa v. BinapaniDei [1967] 2 SCR 625, this Court also accepted the application of the principle of natural justice in the order which is administrative in character. It was observed by Shah,J. : It is true that the order is administrative in character, but even an administrative order which involves civil consequences... must be made consistently with the rules of natural justice. Similar view was also taken in A.K. Kraipak v. Union of India Ors. [1970] 1 SCR 457 and the observation of Justice Hedge may be referred to Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially. there was no room for the application of the rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ministrative Law has succinctly summarised the principle of natural justice to the following effect: It is not possible to lay down rigid rules as to when the principles of natural justice are to apply: not as to their scope and extent. Everything depends on the subject matter, the application for principles of natural justice, resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject- matter of the case. In the application of the concept of fair play there must be real flexibility. There must also have been some real prejudice to the complainant: there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice depend on the facts and the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth. One of the cardinal principles of natural justice is : Nemo debetesse judex in propria causa (No man shall be a judge in his own cause). The deciding authority must be impartial and without bias, It has been held by this Court in Secretary to Government Transport Department v. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs.[11], wherein the Court discussed plenty of previous case law in restating the aforesaid principle, a glimpse whereof can be found in the following passages: 20. The origins of the law can also be traced to the principles of natural justice, as developed in the following cases: In A. K. Kraipak v. Union of India, (1969) 2 SCC 262 : (1970) 1 SCR 457, it was held that the rules of natural justice operate in areas not covered by any law. They do not supplant the law of the land but supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice. If that is their purpose, there is no reason why they should not be made applicable to administrative proceedings also especially when it is not easy to draw the line that demarcates administrative enquiries from quasi- judicial ones. An unjust decision in an administrative inquiry may have a more far reaching effect than a decision in a quasijudicial inquiry. It was further observed that the concept of natural justice has undergone a great deal of change in recent years. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be taken without affording an opportunity or supplying the material which is the basis for the decision. The enquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority. The supply of the report along with the final order is like a post mortem certificate with putrefying odour. The failure to supply copy thereof to the delinquent would be unfair procedure offending not only Arts. 14, 21 and 311(2) of the Constitution, but also, the principles of natural justice. 34. Likewise, in C.B. Gautam v. Union of India Ors. [12], this Court once again held that principle of natural justice was applicable even though it was not statutorily required. The Court took the view that even in the absence of statutory provision to this effect, the authority was liable to give notice to the affected parties while purchasing their properties under Section 269-UD of the Income Tax Act, 1961. It was further observed that 30. . The very fact that an imputation of tax evasion arises where an order for compulsory purchase is made and such an imputation casts a slur on the parties to the agreement to sell leads to the conclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce or not, it is incumbent upon the quasi-judicial authority to issue a notice to the concerned persons disclosing the circumstances under which proceedings are sought to be initiated against them, failing which the conclusion would be that principle of natural justice are violated. To the same effect are the following judgments: a) U.O.I. Ors. v. Madhumilan Syntex Pvt. Ltd. Anr.[16] b) Morarji Goculdas B W Co. Ltd. Anr. v. U.O.I. Ors.[17] c) Metal Forgings Anr. v. U.O.I. Ors.[18] d) U.O.I. Ors. v. Tata Yodogawa Ltd. Anr.[19] 37. Therefore, we are inclined to hold that there was a requirement of issuance of show-cause notice by the Deputy Commissioner before passing the order of recovery, irrespective of the fact whether Section 11A of the Act is attracted in the instant case or not. 10. Mr.P.Wilson, learned Senior Counsel being fortified by the above decisions of Delhi High Court and the Hon ble Supreme Court of India, would submit that the reasons to be recorded as provided under the provisions of PMLA, is a mandatory requirement and the Hon ble Supreme Court of India as well as Delhi High Court have held that the reasons must disclose the mind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Grade I of that service; (b) in the field of finance, accountancy or administration unless he possesses such qualifications, as may be prescribed. (4) The Central Government shall appoint a Member to be the Chairperson of the Adjudicating Authority. (5) Subject to the provisions of this Act,- (a) the jurisdiction of the Adjudicating Authority may be exercised by Benches thereof; (b) a Bench may be constituted by the Chairperson of the Adjudicating Authority with one or two Members as the Chairperson of the Adjudicating Authority may deem fit; (c) the Benches of the Adjudicating Authority shall ordinarily sit at New Delhi and such other places as the Central Government may, in consultation with the Chairperson by notification, specify; (d) the Central Government shall, by notification, specify the areas in relation to which each Bench of the Adjudicating Authority may exercise jurisdiction. (6) Notwithstanding anything contained in sub-section (5), the Chairperson may transfer a Member from one Bench to another Bench. (7) If at any stage of the hearing of any case or matter it appears to the Chairperson or a Member that the case or matter is of such a n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harge the functions of the Chairperson of the Adjudicating Authority until the date on which the Chairperson of the Adjudicating Authority resumes his duties. (15) The Adjudicating Authority shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908, (5 of 1908) but shall be guided by the principles of natural justice and, subject to the other provisions of this Act, the Adjudicating Authority shall have powers to regulate its own procedure, 13. According to the learned Senior Counsel, Sub Clause 2 ofSection 6 provides for constitution of Adjudicating Authority which shall consist of a Chairperson and two other Members. He would also rely upon Sub Clause 3 of Section 6 which provide for qualification of Members. He would also rely on Sub Clause 10 of Section 6, that in case of any vacancy occurred, the proceedings will have to be commenced only after the vacancies are filled up. He would also draw the attention of this Court to various provisions as contained in the Rules, namely, The Adjudicating Authority (Procedure) Regulations, 2013 to emphasize the fact that it is a fullfledged judicial enquiry and therefore, the Coram as provided under Section 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of such proceeds under the Act. The Act also casts obligations on banking companies, financial institutions and intermediaries to maintain record of the transactions and to furnish information of such transactions within the prescribed time. 3. In exercise of powers conferred by clause (s) of sub-section (2) of Section 73 read with Section 30 of the Prevention of Money- Laundering Act, 2002 (15 of 2003), the Central Government framed rules regulating the appointment and conditions of service of persons appointed as Chairperson and Members of the Appellate Tribunal. These rules are the Prevention of MoneyLaundering (Appointment and Conditions of Service of Chairperson and Members of Appellate Tribunal) Rules, 2007. The Central Government has also framed rules called the Prevention of Money Laundering (Appointment and Conditions of Service of Chairperson and Members of Adjudicating Authorities) Rules, 2007. 4) It is highlighted that the provisions of the Act are so provided that there may not be independent judiciary to decide the cases under the Act but the Members and the Chairperson are to be selected by the Selection Committee headed by the Revenue Secretary. It is fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of Chairperson do not give adequate control to Judiciary. 3 Rule 6(1) of Appellate Tribunal Rules, 2007 which defines the Selection Committee for recommending appointment of Members of the Tribunal, would undermine the constitutional scheme of separation of powers between judiciary and executives. 4 Rule 32(2) of PMLA which provides for removal of Chairperson/Members of Tribunal under PMLA does not provide adequate safety to the tenure of the Chairperson/Members of the Tribunal. 5 Rule 6(2) of Appellate Tribunal Rules is vague to the extent that it provides for recommending names after inviting applications thereof by advertisement or on the recommendations of the appropriate authorities. 6 Section 28(1) of PMLA, which allows a person who is qualified to be a judge of the High Court to be the Chairperson of the Tribunal, should be either deleted or the Rules may be amended to provide that the Chief Justice of India shall nominate a person for appointment as Chairperson of Appellate Tribunal under PMLA who is or has been a Judge of the Supreme Court or a High Court failing which a person who is qualified to be a judge of the High Court. 7 The qualification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce and impartiality are not for promoting personal prestige of the functionary but for preserving and protecting the rights of the citizens and other persons who are subject to the jurisdiction of the Tribunal and for ensuring that such Tribunal will be able to command the confidence of the public. Freedom from control and potential domination of the executive are necessary pre-conditions for the independence and impartiality of judges. To make it clear that a judiciary free from control by the Executive and Legislature is essential if there is a right to have claims decided by Judges who are free from potential domination by other branches of Government. With this background, let us consider the defects pointed out by the petitioner and amended/proposed provisions of the Act and the Rules. 11) Mr. Gopal Subramaniam has informed this Court that the suggested actions have been completed by amending the Rules. Even other wise, according to him, the proposed suggestions formulated by Mr. K.K. Venugopal would be incorporated on disposal of the above writ petition. For convenience, let us refer the doubts raised by the petitioner and amended/proposed provisions as well as the remarks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson/Members of Tribunal under PMLA does not provide adequate safety to the tenure of the Chairperson/ members of the Tribunal. Appropriate amendment to the Statute is being proposed to unambiguously provide that Chairperson/Members appointed in consultation with Chief Justice of India, shall not be removed without mandatory consultation with Chief Justice of India. Draft Bill is under preparation. 5 Rule 6(2) of Appellate Tribunal Rules is vague to the extent that it provides for recommending names after inviting applications thereof by advertisement or on the recommendations of the appropriate authorities. Rule 6(2) of the Appellate Tribunal Rules, 2007 may be amended to delete the words or on recommendation of the appropriate authorities , a proposal endorsed by ASG, Shri Gopal Subramaniam. May be deleted. 6 Section 28(1) of PMLA, which allows a person who is qualified to be a judge of the High Court to be the Chairperson of the Tribunal, should be either deleted or the Rules may be amended to provide that the Chief Justice of India shall n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r impose punishment. 4. Adjudication is a function which is performed by Executives under many statutes. The Competent Authority under NDPS/SAFEMA have been conducting Adjudication proceedings routinely since 1978 There is no requirement to amend either the Statute or the Rules. 12) Inasmuch as the amended/proposed provisions, as mentioned in para 9, are in tune with the scheme of the Constitution as well as the principles laid down by this Court, we approve the same and direct the respondent-Union of India to implement the above provisions, if not so far amended as suggested, as expeditiously as possible but not later than six months from the date of receipt of copy of this judgment. The writ petition is disposed of accordingly. No costs. This Court records its appreciation for the valuable assistance rendered by Mr. K.K. Venugopal, learned senior counsel and Mr. Gopal Subramaniam, learned Addl. Solicitor General. 16. The learned Senior Counsel would also rely upon a decision reported in (1995) 5 SCC 159 (Karnal Improvement Trust, Karnal versus Parkash Wanti (smt) (Dead) and another) , wherein, he would particularly rely upon paragraph 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in Montreal Street Railway Company's case rendered by Privy Council in a similar situation, the inescapable consequence would be to set aside the impugned award and remit all these cases to a properly constituted Tribunal in terms of Section 60 of the Act. 18. Applying the same principle of Coram non-judice, the learned Senior Counsel would also rely on a decision reported in 2015 SCC OnLine Cal 6494 (Md.Tamijul Haque versus Md.Tahammul Haque and Others) , wherein, the Calcutta High Court has held that Wakf Tribunal constituted by two Members suffers from Coram non-judice as statute requires three Member Tribunal. He would further add that another High Court, namely, Gujarat High Court, in an unreported order dated 9.3.2016 in SCA 10573 of 2015 (Gujarat Enviro Protectio and Infrastructure Ltd. others versus Union of India and others) under similar circumstances, has passed interim orders as found in paragraphs 2 to 4 of the order, which are extracted hereunder: 2. The Adjudicating Authority under the Prevention of Money Laundering Act, 2002 is seized of the matter of the petitioner, in the process of adjudication under Section 8 of the Act to confirm the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be taken into consideration to the purpose of computation of the period of 180 days as envisaged under Section 5(1) of the Act. W.P.No.21174 of 2017, dated 1.8.2017: Mr.N.Ramesh, learned Standing Counsel, takes notice for the respondents and sought four weeks time for filing counter. 2. The learned counsel appearing for the petitioners submitted that a similar issue came up before this Court on 28.07.2017 in W.P.No.19432 of 2017 and W.M.P.No.20957 of 207, wherein, this Court taking into consideration the submissions made by the learned counsel on either side, granted an order of interim injunction as prayed for until further orders. 3. Following the order passed in the said writ petition, there shall be an order of interim injunction as prayed for until further orders. It is made clear that the period pursuant to this interim order shall not be taken into consideration for the purpose of computation of the period of 180 days as envisaged under Section 5(1) of the Prevention of Money Laundering Act, 2002. Post after four weeks for filing counter of the respondents. Therefore, the learned Senior Counsel would emphatically submit that the Hon'ble Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field. ii) (1977) 2 SCC 724 (State of U.P. and others versus M/s.Indian Hume Pipe Co.Ltd.) , wherein, in paragraph 5, the Hon'ble Supreme Court has held as under: 5. .....Moreover, there is no rule of law that the High Court should not entertain. a writ petition where an alternative remedy is available to a party. It is always a matter of discretion with the Court and if the discretion has been exercised by the High Court not unreasonably, or perversely, it is the settled practice of this Court not to interfere with the exercise of discretion by the nigh Court. The High Court in the present case entertained the writ petition and decided the question of law arising in it and in our opinion rightly.... iii) (1985) 3 SCC 267 (Ram and Shyam Company versus State of Haryana and others) , wherein, the Hon'ble Supreme Court has held in paragraph 9 as under: 9. Before we deal with the larger issue, let me put out of the way the contention that found favour with the High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s passed at the instance of the Chief Minister of the State. To whom did the High Court want the appeal to be filed over the decision of the Chief Minister. There was no answer and that by itself without anything more would be sufficient to set aside the judgment of the High Court. iv) (1987) 4 SCC 525 (Dr.(Smt.) Kuntesh Gupta versus Management of Hindu Kanya Maha Vidyalaya, Sitapur (U.P), and others) , wherein, in paragraph 12, it has been held as under: 12. The next question that falls for our consideration is whether the High Court was justified in dismissing the writ petition of the appellant on the ground of availability of an alternative remedy. It is true that there was an alternative remedy for challenging the impugned order by referring the question to the Chancellor under section 68 of the U.P. State Universities Act. It is well established that an alternative remedy is not an absolute bar to the maintainability of a writ petition. When an authority has acted wholly without jurisdiction, the High Court should not refuse to exercise its jurisdiction under Article 226 of the Constitution on the ground of existence of an alternative remedy. .... v) (2003) 2 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 207; Sangram Singh v. Election Tribunal, Kotah and Ors., AIR (1955) SC 425; Union of India v. T.R. Varma, AIR (1957) SC 882; State of U.P. and Ors. v. Mohammad Nooh, AIR (1958) SC 86 and M/s K.S. Venkataraman and Co. (P) Ltd. v. State of Madras, AIR (1966) SC 1089, held that Article 226 of the Constitution confers on all the High Courts a very wide power in the matter of issuing writs. However, the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted. 23. Lastly, the learned Senior Counsel would draw the attention of this Court to an order passed by the High Court of Allahabad, reported in 1992 SCC OnLine All 234 (Suresh Chandra Tewari versus District Supply Officer and another) . The learned Senior counsel would refer the observation of the High Court holding that once Writ Petition has been enterta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, wherein, it was shown of Schedule III of the immovable property in the Annexure II 'Provisional Attachment', dated 23.3.2018, that those properties were bought in 2010 before the quarry operations commenced by the petitioner herein. The learned Senior Counsel would only draw the reference to these instances to highlight the fact that there appears to be prima facie non-application of mind on the part of the authorities concerned. He would therefore, submit that non-application of mind is writ large and when such action suffers from nonapplication of mind infringing constitutional right of the citizens, this Court cannot be a mute spectator to such action initiated at the instance of the State. He would therefore submit that even on this ground, the provisional order of attachment is liable to be interfered with. Issue No.(vii) When the Writ Petitions are admitted, Rule Nisi is issued by the Writ Court, while so, in the absence of production of relevant documents, whether the Court would have any option except to draw adverse inference against the respondents? 27. The learned Senior Counsel would draw the attention of this Court to the Judgment of the Hon&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... napplication of mind on the part of the State had not been raised and, thus, it might not be necessary for the State to file a counter-affidavit does not appeal to us. When a rule nisi was issued the State was required to produce the records and file a counteraffidavit. If it did not file any counter-affidavit, it may, subject to just exceptions, be held to have admitted the allegations made in the writ petition. 29. According to the learned Senior Counsel, when Rule Nisi is issued, if counter affidavit is not filed, it should be held to have admitted the allegations made in the writ petition. 30. The learned Senior Counsel would submit that no records were produced on behalf of the respondents and therefore, this Court must necessarily draw inference against the respondents and would proceed to hold that whatever is stated in the Writ Petitions, is un-controverted and admitted. Issue No.(viii): Whether offence of illegal quarrying is one of the scheduled offences under PMLA, warranting action under PMLA? 31. The learned Senior Counsel would also contend that illegal quarrying is not one of the scheduled offences under PMLA and therefore, the very action initia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The learned Senior Counsel would submit that PMLA itself has recognized that when such draconian power is invoked, this Court can be approached at the preliminary stage itself and that is precisely the reason, the proviso has been added. 37. Summing up his arguments, Mr.P.Wilson, learned SeniorCounsel would implore this Court to strike down the action initiated by both the respondents. According to the learned Senior counsel, though a detailed order has been passed by the Authority under Section 5(1) of PMLA towards provisional attachment, the Authority has dutifully concluded that he has reason to believe without actually recording any reasons in terms of the scheme of Section 5 of PMLA. Nowhere in the order, it could be even remotely discerned that there was an attempt by the petitioners to conceal the proceeds of the crime or transferring the properties purchased from the proceeds of the crime and there is an attempt to frustrate by the petitioners in respect of confiscation proceedings. Such requirements which are mandatory under Section 5 of PMLA are completely absent in the proceedings initiated by the first respondent under Section 5(1) of PMLA and therefore, the very i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would rely on the following decisions as to how record of reasons was viewed in quasi judicial and administrative orders by the Courts: (i) (2014) 4 SCC 392 (Biswanath Bhattacharya versus Union of India and others) , wherein, the learned Addl.Solicitor General would draw reference to pargraphs 13 to 16 which are extracted hereunder: 13. Though section 127 expressly provided for recording of reasons it did not expressly provide communicating the same to the assessee. Still, this Court held that such a communication is mandatory. 10. The reason for recording of reasons in the order and making these reasons known to the assessee is to enable an opportunity to the assessee to approach the High Court under its writ jurisdiction under Article 226 of the Constitution or even this Court under Article 136 of the Constitution in an appropriate case for challenging the order, inter alia, either on the ground that it is mala fide or arbitrary or that it is based on irrelevant and extraneous considerations. Whether such a writ or special leave application ultimately fails is not relevant for a decision of the question. 11. We are clearly of opinion that the requirement of recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anappa case. The appellant could have effectively convinced the respondents by producing the appropriate material that further steps in furtherance to the notice under Section 6 need not be taken. Apart from that, an order of forfeiture is an appealable order where the correctness of the decision under Section 7 to forfeit the properties could be examined. We do not see anything in the ratio of Ajantha Industries case which lays down a universal principle that whenever a statute requires some reasons to be recorded before initiating action, the reasons must necessarily be communicated. As per the above decision, though record of reasons was provided under particular statute which does not expressly provide to communicate the same to the assessee. However, the communication held to be mandatory in the case of Ajantha Industries case . The Hon'ble Supreme Court has held that the conclusion reached by the Court, was on the basis that there was no provision of appeal or revision under the Income Tax Act and hence the decision was distinguished and held that the reasons need not be communicated. (ii) (1985) 3 SCC 72 (Dr.Partap Singh and Another versus Director of Enforcemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in terms held that whether these grounds are adequate or not is not a matter for the court to investigate.' 10. The expression 'reason to believe' is not synonymous with subjective satisfaction of the Officer. The belief must be held in good faith; it cannot be merely be a pretense. In the same case, it was held that it is open to the court to examine the question whether the reasons for the belief have a rational connection or a relevant bearing to the formation of the belief and are not extraneous or irrelevant to the purpose of the section. To this limited extent the action of the Income Tax Officer in starting proceedings under Sec. 34 is open to challenge in a court of law. (See Calcutta Discount Co. Ltd. v. Income Tax Officer Companies District1, Calcutta Anr.(2) In R. S. Seth Gopikrishan Agarwal v. R. N. Sen, Assistant Collector of Customs Ors.,(3) this Court repelled the challenge to the validity 1 of the search of the premises of the appellant and the seizure of the documents found there in. The search was carried out under the authority of an authorisation issued under Sec. 126 (L) (2) of the Defence of India (Amendment) Rules, 1963 (Gold Control Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid Code shall have effect as if for the word 'Magistrate', wherever it occurs, the words Director of Enforcement or other officer exercising his power is substituted. It was submitted that if the power to search premises is conferred on the officer therein mentioned, it is hedged in with a condition that in exercise of the power he is bound by the requirements of Sec. 165 of the Code. In other words, it was said that by sub-sec. (2) of Sec. 37, Sec. 165 of the Code is incorporated in pen and ink in Sec. 37. It was urged that the section should be re-read as Sec. 37 (1) as it is and Sec. 165 A (I) of the Code be read as Sec. 37 (2). Continuing along this line, it was submitted that read thus, the necessary intendment of the Legislature becomes revealed in that such drastic power of search and seizure without notice to the person affected, can be exercised, if the officer has reason to believe which must have its foundation on some material or grounds which must be stated in the search warrant itself or in a record anterior to the issuance of the search warrant so that when questioned the contemporaneous record would be available to the court to examine the contention whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty to record reasons which furnish grounds for entertaining a reasonable belief were to be recorded in advance, the same could have been incorporated in Sec. 37 (1), otherwise a simple one line section would have been sufficient that all searches as required for the purpose of this Act shall be carried out in the manner prescribed in Sec. 165 of the Code by the officer to be set out in the section. In order to give full meaning to the expression 'so far as may be', sub-sec. (2) of Sec. 37 should be interpreted to mean that broadly the procedure relating to search as enacted in Sec. 165 shall be followed. But if a deviation becomes necessary to carry out the purposes of the Act in which Sec. 37 (1) is incorporated, it would be permissible except that when challenged before a court of law, justification will have to be offered for the deviation. This view will give full play to the expression 'so far as may be'. 13. The view which we are taking is in accord with the view taken in Gopikrishan Agarwal's case. The grounds which induced reason able belief therefore need not be stated in the search warrant. (iii) AIR 1967 SC 523 (S.Narayanappa and others ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction at the stage of provisional attachment of the property. Relevant portion as found in paragraphs 7 to 11 is extracted as under: 7. The contention that the show cause notice does not state that the Adjudicating Authority has reason to believe that the petitioner has committed an offence under section 3 of the Act or is in possession of proceeds of crime is not well founded. The notice has, for all practical purposes, adopted, incorporated the complaint in toto. The notice, fairly read, indicates that the Adjudicating Authority, on the basis of the material in the complaint had reason to believe that the ingredients necessary for the attachment order existed. So read, it follows that the Adjudicating Authority stated in the show cause notice that he had reason to believe that there existed the factors necessary to serve the notice. The reasons, in turn, stand incorporated in the notice from the complaint. It is apparent that the notice has been issued based on the reasons to be found in the complaint and the documents which have been expressly referred to in the contention. The complaint itself expressly sets out the reason to believe. If, on the basis of the facts disclo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... astha and the said Mohit Agarwal. That order clearly contained the reasons that satisfied all the ingredients of section 5. The attachment over the property, therefore, was levied in accordance with the provisions of the Act. (v) 2015 Supreme (Del) 165 (Gautam Khaitan another versus Union of India and another) , wherein, the Delhi High Court has held as under: 13. In my view, having regard to the material accompanying the impugned order and the discussion therein, one cannot but come to the conclusion that the designated/authorised officer had reason to believe that the properties in issue were involved in money-laundering, and that, if they were not attached, immediately, it could lead to the proceedings under the PMLA, being frustrated. 13.1 As indicated above, this could only be a tentative view based on the material presently available with the designated/authorised officer. The petitioners would have a full opportunity to present their version of events and demonstrate with the help of material and evidence in their possession, that the properties which stand provisionally attached, are not, involved in money-laundering. Therefore, the submission made on behalf o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stice. 14.2 As discussed above, at the stage of issuance of an order of provisional attachment, no recourse could have been taken to a writ petition under Article 226, merely, on the ground that no notice was issued or, no opportunity of hearing was given before passing the order of provisional attachment. The reason for the same, as indicated above, is, that a post facto hearing is provided in the aftermath of a provisional attachment being ordered. Section 8 of the PMLA, provides for a full dress hearing and for grant of complete opportunity to the aggrieved party in that behalf. The legislature's intention, in the manner in which, Sections 5 and 8 of the PMLA are structured, makes that amply clear. 14.3 In so far as the first situation is concerned, there is a very narrow leeway available to the petitioners to come by way of a writ petition. The court ordinarily would be circumspect in entertaining a writ petition at the stage of provisional attachment, that is, at the Section 5, stage. The aggrieved petitioners will have to demonstrate, and the burden in that behalf would be heavy, that there is, an absence of jurisdiction in the designated/authorised officer directin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easons to believe must be read in the context of the entire scheme of PMLA, but not in isolation. According to the learned Additional Solicitor General, the attachment is only for a period of 180 days and therefore, the Adjudicating Authority proceeds with the complaint by giving adequate opportunity to the person concerned and in case, the order is adverse, an appeal is provided under Section 26 of PMLA to the Appellate Tribunal and a further appeal is provided to the High Court under Section 42 of PMLA. In such scenario, the writ petitioners need not feel that they were affected by the action initiated by the first respondent under Section 5(1) for provisionally attaching the property and also by mere issuing show cause notice issued by the Adjudicating Authority, as the proceedings initiated against the writ petitioners are at the very initial stage. 44. As regards the contention of the petitioner regarding coram non-judice, the learned Addl.Solicitor General would draw the attention of this Court to a decision rendered by the Delhi High Court in W.P.(C) 5320 of 2017 dated 11.1.2018 (J.Sekar versus Union of India and others) , which was also extensively referred to by the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (5)(b) that there can be single-member benches. A contrary interpretation would actually frustrate the working of the AA. The Court, therefore, rejects the contention of the Petitioners that there cannot be any single-member benches of the AA. 82 to 86. ..... .... .... 87 (i) to (vi). .... ..... .... (vii) There can be single-member benches of the AA and the AT under the PMLA. Such single-member benches need not mandatorily have to be JMs and can be AMs as well. 45. The learned Addl.Solicitor General would also rely on a decision in 2008 (14) SC 107 (cited supra) which was also relied on by the learned Senior Counsel in extenso as to how PMLA had been changed and amended on the basis of several suggestions given by the Hon'ble Supreme Court and those amendments have been extensively incorporated in the order itself, which was also extracted supra. 46. The learned Additional Solicitor General would submit that the scheme of PMLA itself provides for constitution of Adjudicating Authority. He would also draw the attention of this Court to Section 6(5), 6(6), 6(7) and also 6(14) of PMLA, which read as under: 6. Adjudicating Authorities, composition, powers, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing decisions for consideration, viz., (i) 2010 (4) SCC 772 (Raj Kumar Shivhare versus Assistant Director, Directorate of Enforcement and another) , wherein, it has been held as under in paragraphs 31 and 32: 31. When a statutory forum is created by law for redressal of grievance and that too in a fiscal Statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case High Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a go bye by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating the aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction. 32. No reason could be assigned by the appellant's counsel to demonstrate why the appellate jurisdiction of the High Court under Section 35 of FEMA does not provide an efficacious remedy. In fact there could hardly be any reason since High Court itself is the appellate forum. (ii) MANU SC/541/2010 (United Bank of India versus Satyawati Tandon and others) , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Committee of the Board. The respondent- company ought to have resorted to the arbitration clause provided in the lease deed in the event of a dispute, and the District Collector, Jaipur would have then, decided the case. However, the respondent- company did not resort to either of the statutory remedy, rather preferred a writ petition which could not have been entertained by the High Court. It is a settled law that writ does not lie merely because it is lawful to do so. A person may be asked to exhaust the statutory/alternative remedy available to him in law. (iv) MANU/TN/2008/2011 ( Order in W.P.NO.19171 OF 2006, dated 7.6.2011 of this Court) (The Management of Alpha Instruments, rep. by its Partner G.Nagarajan versus The Enforcement Officer, EPFO), wherein, this Court has held as under in paragraphs 9 to 11: 9.Ultimately if an order is passed under Section 7A and the petitioner is still aggrieved, he has a right of review under Section 7B followed by an appeal under Section 7-I before the EPF Appellate Tribunal. The advice given by the first respondent Enforcement Officer is not a final order. 10.Since the Act provides for determination by quasi judicial authority wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under: 15.In the present case, by attachment of property made by the second respondent, the petitioner is not bound to lose anything and he cannot be said to be prejudiced. On the other hand, by virtue of Section 5(3), every order of attachment made under Section 5(1) of the POMLA will lose its efficacy either after 150 days or after an order passed under Section 8(2) of the POMLA. Therefore, it is only the petitioner instead of approaching the first respondent Adjudicating Authority who had initiated proceedings under Section 8(1), had rushed to this court. Even if the attachment is made final, under Section 26, an appeal lies to the Appellate Tribunal. Therefore, the petitioner must submit his explanation to the Adjudicating Authority and convince it that the amount sought to be attached was not obtained due to any money laundering and that it was the legally earned income. Even if he fails before the first respondent, there is time enough for challenging the same before the judicial appellate Tribunal constituted under Section 26 of the POMA. When the Act itself provides for an inbuilt remedy, it is not open to the petitioner to rush to this Court at the stage of provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court rightly dismissed the petition on the ground that an efficacious remedy was available to the appellants under Section 17 of the Act. It is wellsettled that ordinarily relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person. (See:Sadhana Lodh Vs. National Insurance Co. Ltd. Anr.5; Surya Dev Rai Vs. Ram Chander Rai Ors.6; State Bank of India Vs. Allied Chemical Laboratories Anr.7). 24. In City and Industrial Development Corporation Vs. Dosu Aardeshir Bhiwandiwala Ors.8, this Court had observed that: 30. The Court while exercising its jurisdiction under Article 226 is dutybound to consider whether: (a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved; (b) the petition reveals all material facts; (c) the petitioner has any alternative or effective remedy for the resolution of the dispute; 5 (2003) 3 SCC 524; 6 (2003) 6 SCC 675; 7 (2006) 9 SCC 252; 8 (2009) 1 SCC 168 (d) person invoking the jurisdiction is guilty of unexplained delay and laches; (e) ex facie barred by any laws o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. In the above scenario, the learned Single Judge has held in para 6 of the order as under:- It is not in dispute that the impugned order is only provisional attachment order. It is also not in dispute that the petitioner herein is having a right to agitate the matter before the adjudicating authority by raising all the points raised before this court and seek for raising the attachment. When such statutory remedy is available to the petitioner before the Adjudicating Authority, who is a fact finding authority as well, this court is not inclined to entertain the writ petition that too, challenging the provisional order of attachment. It is further seen that the petitioner's attempt to quash the FIR also failed, as this Court dismissed the said Crl.O.P. by specifically holding that unless the investigation gets completed, this court cannot jump into a conclusion that the petitioner is innocent bona fide purchaser and not privy to the alleged crime. Therefore, without expressing any view on the merits of the claim made in this writ petition, the writ petition is disposed of, by granting liberty to the petitioner to approach the adjudicating authority and file appropriate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Paragraph 1 of Part A and Part B of the Schedule, a report has been forwarded to a Magistrate under section 173 of the Code of Criminal Procedure, 1973 (2 of 1974); or (ii) Paragraph 2 of Part A of the Schedule, a police report or a complaint has been filed for taking cognizance of an offence by the Special Court constituted under sub-section (1) of section 36 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985). 3. Insofar as this case is concerned, after affording an opportunity to the petitioners under Section 50 and being satisfied that prima facie material against them and reason to believe that the petitioners are in possession of proceeds of crime, the complaint has been registered and it is under investigation besides adjudication for attachment. 4. Under these circumstances, it cannot be construed that the Authorities have no power under Section 3 or 5 to proceed against the petitioners or the complaint itself is bereft of material and liable to be quashed. It is for the petitioners to participate in the enquiry/investigation. On completion of investigation, it is always open to the petitioner to approach the appropriate Court under the appro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if at all the petitioners have any merit to canvass, they can very well participate in the adjudication proceedings and prove that the properties in their possession are not proceeds of crime. Since the matter has been seized by the adjudication authority, we are restraining ourselves from expressing any view on the merit of this case except dismissing the writ petition as devoid of merits. (xi) Order of this Court dated 27.02.2018 in W.P.Nos.34206 to 34221 of 2017 (Heeralal Versus The Deputy Director, Directorate of Enforcement, Chennai and another) , wherein, a Division Bench of this Court has held as under: 4.Under these circumstances, it cannot be construed that the Authorities have no power under Section 3 or 5 to proceed against the petitioners or the complaint itself is bereft of material and liable to be quashed. It is for the petitioners to participate in the enquiry/investigation. On completion of investigation, it is always open to the petitioner to approach the appropriate Court under the appropriate provision of law, for redressal of his grievance, if any. Therefore, both on merits as well as on the facts of the case, these petitions are not maintainable and l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rities under PMLA from applying their mind and passing final orders of attachment. 52. According to the learned Additional Solicitor General, 'right to property' is circumscribed by certain limitations and restrictions and in any event, the initial attachment, namely, provisional attachment is only for a period of 180 days and without awaiting the process of adjudication by the Adjudicating Authority and without allowing due process to reach its logical end in terms of the provisions of the PMLA, these petitioners have rushed to this Court deliberately to avoid further action to be initiated under the PMLA. 53. The learned Additional Solicitor General would also draw the attention of this Court to a decision reported in 2010 Supreme (Jhk) 588 (Hari Narayan Rai versus Union of India Others) , wherein, the learned Judge of the High Court of Jharkhand at Ranchi, has observed as under in paragraph: 9. In the circumstances, I am of the view that the petitioner is not being prosecuted merely for any act which was not a scheduled offence on the date when it was committed. Therefore, the fundamental right of the petitioner guaranteed by Article 20 (1) is not being viol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat enough and more safeguards are provided under PMLA by providing multiple appeal remedies and therefore, the petitioners are not prejudiced at all and they are not denied fair and reasonable opportunity. He would further submit that the principles of natural justice cannot be applied blindly and the same have to be applied in a given case with reference to the scheme of PMLA. (iii) These petitioners are charged with money laundering and proceeded against under the provisions of PMLA and they cannot be heard to complain about the violation of constitutional rights, calling for this Court's intervention at the very preliminary stage itself. The Court cannot come to the rescue of these persons at the preliminary stage in the teeth of serious allegations of money laundering and acquisition of wealth on the basis of proceeds of crime allegedly committed by the petitioners. He would lastly submit that the action initiated under PMLA does not affect the fundamental rights of the petitioners. The impugned action cannot be termed at this stage as wholly unjustified. Further, in view of sufficient safeguards provided in the scheme of PMLA, the petitioners cannot complain of violati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interfered with, as being wholly in discord with the relevant provisions of PMLA. A singular emphasize has been made by the learned Senior Counsel appearing for the writ petitioners that while ordering provisional attachment by the first respondent, the authority has not recorded the reasons to believe which is mandatory under Section 5(1) of PMLA. In the absence of reasons of such belief, the very initiation of provisional attachment is liable to be rendered as null and void and further action pursued in furtherance of provisional attachment becomes illegal and cannot be maintained in law. The learned Senior Counsel appearing for the petitioners would labour to point out in great detail as to how the record of reasons is imperative and mandatory in terms of the provisions of PMLA since constitutional right to property of the citizens, cannot be infringed upon lightly and casually at the instance of the Authority under PMLA, wherein, an explicit provision as contained particularly in Section 5(1)(b) which provides that the conduct of the property must impel the authority to initiate action, which according to the learned Senior Counsel, is completely absent in the initial order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ropic Substances Act, 1985, etc., wherein, similar provisions came up for consideration before the Hon'ble Supreme Court, and the Hon'ble Supreme Court has ruled that the Rules of natural justice are foundational and fundamental concepts and the law is well settled that the principles of natural justice are part of the legal and judicial procedures. Although the Rules of natural justice are not embodied in any particular enactment or regulation, but fulfillment of the same must be found in every quasi and even in administrative action by the State authorities. The learned Senior Counsel would therefore submit that this Court is called upon to render a finding as to whether the action as proposed by the respondents herein, meets the standards as prescribed in the provisions of PMLA under which the action was initiated and pursued and as to the correctness of action in terms of law laid down by the various High Courts and the Hon'ble Supreme Court of India on the aspect, which is under consideration before this Court. After all, the constitutional right to property cannot be trifled with by the State authorities merely for the asking in the guise of implementing the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action. 66. In the back drop of the above, this Court has to consider important provisions of PMLA in order to come to a just and reasonable conclusion and to set at rest the controversy as between the parties. Chapter III of PMLA deals with Sections 5 to 11 which Chapter provides for attachment, adjudication and confiscation. Section 5(1)(b) provides for provisional attachment only for a period of not exceeding 180 days. No doubt, the provision provides for reasons to belief to be recorded in writing when an action is initiated under Section 5(1), that provision is made more explicit in Sub Section (b) wherein, it provides that the proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such crime. If the said provision is to be applied in isolation, what follows is that it is incumbent upon the authorities who initiated the action, has to necessarily record reasons to believe in the aforesaid manner and in the absence of such reasons being recorded, the action amounts to breach of the provision and would render itself being declared as illegal. In fact, according to the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, the Hon'ble Supreme Court has suggested the qualification of the Chairperson to be appointed as Adjudicating Authority and also person to be nominated to the Tribunal, etc. On the basis of suggestions, the Adjudicating Authority has to be constituted with the Body of Experts from different fields. This was necessitated in order to ensure that the power of quasi-judicial function need not be vested in the Executive in order to ensure fairness of action. In fact, the learned Senior Counsel appearing for the petitioners would submit that it was a quasi-judicial function and a full-fledged judicial enquiry is to be held by the Adjudicating Authority by drawing reference to various provisions of the Adjudicating Authority (Procedure) Regulations, 2013. 68. From the above, it is very clear that the Adjudicating Authority under the PMLA is called upon to conduct a full-fledged enquiry and trial and only thereafter, the provisional attachment is confirmed or rescinded. In the circumstances, this Court has to see whether the absence of reasons to be recorded in terms of Clause (b) of Sub Section (1) of Section 5, any irrepairable legal injury is caused to the petitioners assuming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an order made under sub-section (2) of section 8, whichever is earlier. (4) ..... ..... (5) ..... ..... 69. In the above circumstances, the framers of the law, have in fact, intended to protect the right of citizens, namely, the constitutional right to property' and such intention is well defined in the entire scheme of PMLA. While so, this Court does not think that the preliminary provision invoked by the Authority concerned, was constitutionally detrimental to the interest of the writ petitioners as they imagine to be so. Even otherwise, if the provisional attachment order is not in the line with the spirit of Clause (b) of Sub Section 1 of Section 5, the same can always be raised before the Adjudicating Authority, as the Adjudicating Authority is the competent and proper to understand the extent of reasons to be recorded in writing on the basis of appreciation of factual materials. 70. Although heavy reliance was placed by the learned Senior Counsel appearing for the writ petitioners on the decision of the Delhi High Court in J.Sekar versus Union of India others, etc. (cited supra), but also other decisions of other High Courts, including our High Court wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for laying a challenge to the order of provisional attachment. It is trite to say that a remedy under Article 226 of the Constitution can be availed of by an aggrieved party, even where, a statutory remedy is provided, in two broad situations. First, when it is a case of lack of jurisdiction. Second, where there is a breach of principles of natural justice. 14.2 As discussed above, at the stage of issuance of an order of provisional attachment, no recourse could have been taken to a writ petition under Article 226, merely, on the ground that no notice was issued or, no opportunity of hearing was given before passing the order of provisional attachment. The reason for the same, as indicated above, is, that a post facto hearing is provided in the aftermath of a provisional attachment being ordered. Section 8 of the PMLA, provides for a full dress hearing and for grant of complete opportunity to the aggrieved party in that behalf. The legislature's intention, in the manner in which, Sections 5 and 8 of the PMLA are structured, makes that amply clear. 14.3 In so far as the first situation is concerned, there is a very narrow leeway available to the petitioners to come by way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Authority and the details of transactions are minutely incorporated in the order in respect of each transaction in relation to several properties which according to the Authority, are acquired from the proceeds of the crime. This is not an order which could be construed as one of nonspeaking order bereft of any detail. Prima facie, it appears that the Authority has applied his mind thoroughly and extensively on the basis of various reports. In fact, the Authority has finally concluded after incorporating every relevant detail of transactions of the properties, that non-attachment of the properties would likely to frustrate further proceedings under PMLA. Although the learned Senior Counsel for the petitioners took much pains to emphasize the fact that there cannot be a rubber stamp reasoning and mere expression 'reason to believe' cannot be acceptable as it must be reflected in the order in real sense. This Court is of the view that such contention in the face of detailed order passed by the Authority, cannot be countenanced on facts. When the Authority who passed the order under Section 5(1) provides the reasons for provisional attachment of the property. It is not for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 43 of PMLA. In all these provisions unequivocally demonstrate that the petitioners are no way prejudiced by the action proposed by the first respondent under Section 5(1) of PMLA. Ultimately what comes to the judicial scrutiny is about the prejudice suffered by the citizens concerned when any adverse action initiated against them by the State. In view of the safeguards as provided in the scheme of PMLA itself, this Court does not understand as to how these writ petitioners can legitimately complain their right being violated at the very preliminary stage, action initiated against them by the respondents. In fact, under Section 24 of PMLA, there is presumption in favour of the prosecution, unless the contrary is proved by the person charged with. Section 24 of PMLA reads as under: 24. Burden of Proof.-In any proceeding relating to proceeds of crime under this Act,- (a) in the case of a person charged with the offence of money-laundering under section 3, the Authority or Court shall, unless the contrary is proved, presume that such proceeds of crime are involved in money- laundering; and (b) in the case of any other person the Authority or Court, may presume that such proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which ought to be afforded to the aggrieved party, then the principles of natural justice can be pressed into service as the same being foundational and fundamental concept of rule of law. When the statute itself provides extensive safeguards in real terms and the provisions of the statute envisages application of the principles of natural justice, this Court is unable to appreciate as to how these writ petitioners can premise their grievance on any legitimate ground in regard to non-application of principles of natural justice. This Court is of the considered view that the plea of non-application of principles of natural justice in the given cases, is a self-serving plea and has to be necessarily rejected as being without any substance in reality. 77. As regards the legal contention of not providing reasonsrecorded by the Adjudicating Authority under Section 8(1) of PMLA, show cause notice issued by the Adjudicating Authority which is one of the impugned orders in the Writ Petitions, can be referred to. In the show cause notice itself, it is clearly mentioned that the Adjudicating Authority recorded satisfaction in terms of Section 8(1) of PMLA and a copy of the order can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty in case they are advised to do so. Therefore, this Court is of the view that these Writ Petitioners are raising these objections only with a motive to frustrate the proceedings initiated under PMLA by stalling due process of law which was duly set in motion. 78.As regards the issue of Coram-non-judice is concerned, the learned Senior Counsel appearing for the petitioners has drawn the attention of this Court to various provisions of PMLA starting from Section 6(2), wherein, it is provided for composition of Adjudicating Authority which shall consist of Chairperson and two other Members. Apart from the above, the learned Senior Counsel would also draw the attention of this Court to the scheme of the Adjudicating Authority (Procedure) Regulations, 2013, wherein, he would submit that all these regulations and cumulative reading of Section 6 would point to the fact that the Adjudicating Authority shall consist of Chairperson and two Members and in the absence of said coram, the Adjudicating Authority cannot initiate any action. In fact, the learned Senior Counsel would rely on a decision of the Hon'ble Supreme Court of India, reported in (2008) 14 SCC 107 (Pareena Swarup ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the absence of three Member Adjudicating Authority under the very PMLA. 79. But looking at the entire scheme of PMLA, Section 6 and other connected provisions of PMLA and regulations as referred to by the learned Senior Counsel, this Court can infer that it is possible to have less than three Member to act as Adjudicating Authority. This inference is not without any definite reasons as the language of Sub Section 7 of Section 6 provides for constitution of Bench even by two Members. Sub Section 7 of Section 6 reads as under: (7) If at any stage of the hearing of any case or matter it appears to the Chairperson or a Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting of two Members, the case or matter may be transferred by the Chairperson or, as the case may be, referred to him for transfer, to such Bench as the Chairperson may deem fit. 80. From the above, it could be seen that not only two Member Adjudicating Authority can be constituted, but it can be even less than Two. Likewise, Sub Section 14 of Section 6 of PMLA also provides for functioning of Adjudicating Authority in the absence of Chairperson, which reads ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order to adjudicate the cases which are placed for consideration before the Authority. 84. Be that as it may, after the oral arguments over long back and also after submission of written arguments by the respective parties, before the present order could be pronounced, on behalf of the respondents, a Memo, dated 7.12.2018 was filed, wherein, it is stated that pending pronouncement of the orders in these writ petitions, in addition to the existing single Member Bench, second Member was appointed on 17.07.2017 by Notification issued by the Government of India and by further Notification dated 26.10.2018, third Member was also appointed. According to the learned instructing counsel for the respondents, the following Members are now available as Adjudicating Authority as on date: 1. Dr.Devendra Singhai -Member Administration as Charmian 2. Shri Tusha V.Sha -Member Law 3. Shri Vinodanad Jha -Member 85. Therefore, the entire argument in regard to coram nonjudice is no more available for the petitioners and the impugned show cause notice cannot be assailed on that ground. In any event, this Court, before the submission of Memo, had gone into the issue and found the argume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners being infringed in these cases as any such complaint on that score is far fetching and untenable. Further, the action per se by the respondents cannot be termed as wholly unjustified nor can it be said that the impugned action being violative of the basic principles of natural justice for the Writ Court to extend its arm and entertain the Writ Petitions at a very preliminary stage. 88.The argument regarding violation of principles of natural justice and that the jurisdiction of Writ Court can be invoked, this Court is of the view that such sweeping argument cannot be put in a straight jacket formula and the same cannot be taken out of context and apply to all situations. Any complaint of violation of principle of natural justice has to be contextualized with reference to the statute which gave rise to the action by the authorities concerned. In the instant case, a full-fledged adjudication is to unfold after issuance of show cause notice by the Adjudicating Authority under Section 8 of PMLA. Thereafter, if the persons are aggrieved, an appellate Tribunal consisting of Experts is being available under Section 25 and an appeal could be filed under Section 26. In case, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imately end in stifling the efforts of the authorities in implementing the provisions of the PMLA for which it is enacted. Eventually, this Court has to balance between upholding the principles of natural justice to the extent required and larger public good. This Court is of the considered view that there exist no tenable reasons or grounds to entertain these writ petitions as PMLA itself provides for multiple effective remedies and these Writ Petitions can have recourse to such remedies. In view of the same, this Court is more inclined to accept the line of decisions cited on behalf of the respondents than the decisions cited on behalf of the petitioners that existence of alternative remedies under PMLA is an effective bar to entertain the writ petitions. 90. As regards the issue of non-application of mind by the Adjudicating Authority while initiating the action under PMLA is concerned, the learned Senior Counsel for the petitioners would submit that in the order passed by the first respondent towards provisional attachment, some of the properties which are shown, having been bought from the proceeds of the crime, which properties were purchased before commencement of quarry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and inference has to be necessarily drawn by this Court against the respondents. This Court is unable to appreciate such arguments for the simple reason that the main thrust of the arguments advanced on behalf of both sides, is with regard to maintainability of the writ petitions, since these writ petitions were filed at the stage of provisional attachment and show cause notice issued by the respondents. In such view of the matter, the question of production of any materials and documents does not arise since battle front was open only for legal submissions on the issue of maintainability or otherwise of the writ petitions before this Court. Hence, this Court does not think much merit in the submissions made by the learned Senior Counsel in the context in which these Writ Petitions are being heard and disposed of. In any event, the decisions cited by the learned Senior Counsel pertain to a general proposition of law and the same cannot be blindly applied in all factual situations regardless of the context in which, the writ petitions are being heard and disposed of. Ultimately, a consistent and sustained practice and the procedure adopted by this Court is also to be taken into c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There are hundreds of languages/dialects being spoken to in this country in various regions and it is impossible for Directorate officials and the Adjudicating Authority to be conversant with every kind of language/dialect they deal with when they come across offences under PMLA. The documents which are in vernacular language can always be translated in the language in which adjudication takes place and on that ground, this Court is unable to appreciate that the Adjudicating Authority suffers from any disability. It is the usual practice in the Courts that wherever a Judge is not conversant with any particular language, the documents always get translated for the Judge to understand the import of the contents of the documents. Therefore, lack of familiarity to the language cannot be the reason for complaining by these writ petitioners that the action cannot ipso facto result in transmission of nonapplication of mind on the part of the authority concerned. Such argument is too naive and puerile meriting not even a modicum of consideration by this Court. 96. On conclusion of the arguments, the learned Senior Counsels appearing for the petitioners would submit that 3rd proviso has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h opportunity is available before the Adjudicating Authority consisting of experts, it cannot be gainsaid by these writ petitioners that their interest is irrepairably prejudiced and their constitutional right is violated. ii) Further, nowhere in the Section itself, it has beenstipulated that the reasons must be communicated to the persons. In the absence of such stipulation, these writ petitioners have no right to claim that there should be communication of reasons in the form of show cause notice before ordering provisional attachment. The validity period of provisional attachment is only for a period of 180 days before confirmation by Adjudicating Authority and therefore, the initial order has all the characteristics of show cause notice and no further requirement is contemplated in the statute. As far as the present case on hand is concerned, de horse the above legal finding, this Court finds that the Authority has given reasons in terms of the scheme of Section 5 and to what extent such reasons could ultimately end up in confirmation or not, is for the Adjudicating Authority to decide after a detailed enquiry to be conducted under Section 8 of PMLA. Therefore, on merits, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red against the writ petitioners, notwithstanding the fact that at the time of pronouncement of this order, the Adjudicating Authority is consisting of three Members. vi) The plea of alternative remedy is not a bar for entertaining the Writ Petition, can it best be a general proposition of law, but the same cannot be applied to these writ petitions where the statute itself provide for multi layered alternative appellate remedies, one before the Adjudicating Authority, other before the Appellate Tribunal and another before this Court. Moreover, in these cases, there is no violation of any fundamental right nor action by the first respondent can be termed to be wholly unjustified nor there was a wholesale violation of principles of natural justice. In such scenario, this Court is not inclined to transgress beyond its selfimposed limitation not to entertain these writ petitions on the ground of availability of multiple appellate remedies under PMLA. vii) The contention as regards Rule Nisi is concerned, this Court has dealt with the preliminary objection as to the maintainability of the writ petitions since these writ petitions are challenging the initial action of provisional a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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