TMI Blog2021 (10) TMI 244X X X X Extracts X X X X X X X X Extracts X X X X ..... rder in view of not passing any formal order under Section 8 (3) of the said Act extending the validity of the same by the Respondent No. 2 and the action of Respondent No. 3 in not allowing the petitioner to operate its bank and postal accounts in question after the expiry of the period validity of 180 days from the date of the order passed under Section 5 (1) of the aforesaid Act, such action of the Respondent Enforcement authority, is arbitrary and illegal. This Writ Petition is allowed by declaring that the impugned order of provisional attachment of Bank accounts and postal accounts in question dated 11th December, 2019 passed under Section 5 (1) of The Prevention of Money Laundering Act, 2002 after expiry of 180 days on 9th June, 2021 is ceased to have any effect or force as a consequence of failure on the part of the Respondent Enforcement authority/Adjudicating authority in passing further order under Section 8 (3) of The Prevention of Money Laundering Act, 2002 extending or confirming order dated 11th December, 2020 under Section 5 (1) of the said Act on or before 9th June, 2021 after expiry of its validity under Section 5 (3) of the said Act by taking the stand of auto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Counsel appearing for the Respondent Nos. 2 3/Enforcement Authorities opposing the Writ Petition and defending the action of the Respondent No. 3 authority in not allowing the Writ Petitioner to operate the bank accounts in question contends that even without passing any formal order of confirmation or further extension under Section 8 (3) of the Act after the expiry of 180 days of validity of the aforesaid impugned Provisional Attachment Order, the aforesaid impugned Provisional Attachment Order automatically should be deemed to have been extended by claiming benefit of the order of the Hon ble Supreme Court dated 23rd March, 2020 in Suo moto Writ Petition (Civil) No. 3 of 2020 Re-cognizance For Extension Of Limitation which was extended from time to time and lastly on 27th April, 2021 where the Hon ble Supreme Court in view of the steep rise in Covid-19 Virus cases engulfing the entire nation and the extraordinary situation caused by the outburst of Covid-19 Virus resulting difficulties by the litigants and advocates in filing petitions/applications/suits/appeals and all other proceeding irrespective of period of limitation prescribed in general or special law extended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such proceeds of crime under this Chapter, he may, by order in writing, provisionally attach such property for a period not exceeding one hundred and eighty days from the date of the order, in such manner as may be prescribed (2) (3) (4) 5 (3). Every order of attachment made under sub-section (1) shall cease to have effect after the expiry of the period specified in that subsection or on the date of an order made under [sub-section (3)] of section 8, whichever is earlier. (6) (7) 8.. (1) (2) .. (3) Where the Adjudicating Authority decides under sub-section (2) that any property is involved in money-laundering, he shall, by an order in writing, confirm the attachment of the property made under subsection (1) of section 5 or retention of property or [record seized or frozen under section 17 or section 18 and record a finding to that effect, whereupon such attachment or retention or freezing of the seized or frozen property] or record shall-- (a) continue during [investigation for a period not exceeding [three hundred and sixty-five days] or] th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remedy, whose remedy may be barred by time because they were unable to come physically to file such proceedings. The order dated 23.03.2020 cannot be read to mean that it ever intended to extend the period of filing charge sheet by police as contemplated under Section 167(2) of the Code of Criminal Procedure. The Investigating Officer could have submitted/filed the charge sheet before the (Incharge) Magistrate. Therefore, even during the lockdown and as has been done in so many cases the charge-sheet could have been filed/submitted before the Magistrate (Incharge) and the Investigating Officer was not precluded from filing/submitting the charge-sheet even within the stipulated period before the Magistrate (Incharge). 18. If the interpretation by learned Single Judge in the impugned judgment is taken to its logical end, due to difficulties and due to present pandemic, Police may also not produce an accused within 24 hours before the Magistrate s Court as contemplated by Section 57 of the Code of Criminal Procedure, 1973. As noted above, the provision of Section 57 as well as Section 167 are supplementary to each other and are the provisions which recognizes the Right of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o W.P(C)No.3 of 2020 rejected the said contention and followed the judgment of the learned Single Judge of Madras High Court in Settu versus The State (supra). Kerala High Court in paragraph 13 of the judgment observes: - 13. I respectfully concur with the exposition of law laid down by the learned Single Judge of the Madras High Court in Crl.O.P.(MD) No.5291 of 2020 as well by the learned Single Judge of Uttarakhand High Court when their lordships held that the investigating agency cannot benefit from the directions issued by the Supreme Court in the Suo moto Writ Petition. 30. Rajasthan High Court had occasion to consider Section 167 as well as the order of this Court dated 23.03.2020 passed in Suo Moto W.P(C)No.3 of 2020 and Rajasthan High Court has also come to the same conclusion that the order of this Court dated 23.03.2020 has no consequence on the right, which accrues to an accused on non-filing of charge sheet within time as prescribed under Section 167 Cr.P.C. Rajasthan High Court in S.B. Criminal Revision Petition No. 355 of 2020 Pankaj Vs. State decided on 22.05.2020 has also followed the judgment of learned Single Judge of the Madras High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities. 30. Clearly, the above order extended the period of limitation. In the present case, Section 5(1) and 5(3) do not provide the period of WP(C) No.3551/2020 Page 20 limitation, but the period of validity of the Provisional Attachment Order. The same would not stand extended due to the above order of the Supreme Court. This becomes more evident from the order dated 06.05.2020 passed by the Supreme Court in I.A. 48411/2020, whereby it was pleased to extend the period of limitation prescribed under the Arbitration and Conciliation Act, 1996 and under Section 138 of the Negotiable Instruments Act, 1881, observing as under:- IA No.48411/2020 - FOR DIRECTIONS By way of filing this application for directions, the applicant has made the following prayer: To issue appropriate directions qua (i) arbitration proceedings in relation to section 29A of the Arbitration and Conciliation Act, 1996 and (ii) initiation of proceedings under section 138 of the Negotiable Instruments Act, 1881. In view of this Court's earlier order dated 23.03.2020 passed in Suo Motu Writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be mentioned that the Adjudicating Authority has been served with copies of the petition. 6. If the concerned Act provides certain windows to a party in relation to a provisional order of attachment expressed in the clear language of Section 5(1)(b), this Court cannot come in the way of the petitioner taking advantage of the said exit route. Needless to say, allowing withdrawal of this petition will not prejudice any of the rights or contentions of the parties in the event of future proceedings before this Court or any other forum. 37. In view of the above, the 180 days from the date of the Provisional Attachment Order dated 13.11.2019 having expired without any order under Section 8(3) of the Act being passed by the Adjudicating Authority, it is held that the Adjudicating Authority has been rendered functus officio and cannot proceed with the Original Complaint, being O.C. No. 1228/2019 pending before it. The Notice/Summons dated 26.05.2020 is accordingly set aside. Submission of Mr. Roy learned counsel appearing for the Respondents Enforcement authorities/Respondent Nos. 2 3 in a nutshell is that in view of the order of the Hon ble Supreme Court in Suo moto Wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid Act has expired after 180 days and he has also relied on an interim order of this Court dated 23rd April, 2021 passed in an application being CAN No. 1 of 2021 in WPA No. 8232 of 2020 (Fairdeal Supplies Limited Anr vs- Union of India Ors.). He has relied on one unreported order dated 2nd Decemeber, 2020 of Delhi High Court in the case of Directorate of Enforcement Anr vs- M/s Vikas WSP Ltd. Ors. (LPA No. 362/2020 CM Appeal No. 30675/2020). Considering the judgments relied upon by Mr. Roy, learned Advocate for the Respondents, I am of the considered opinion that those judgments/orders are of no help to the Respondents in view of the discussion made herein below: (i) Order of this Court dated 2nd July, 2021 in the case of Rajendra Kumar Morarka (supra) is an interim order and the issue involve herein has not been finally adjudicated and direction for filing of affidavit has been passed upon the respondents and the said Writ Petition is still pending and I am of the view that an interim order on the issue in question cannot be treated as a precedent by this Court for final adjudication on the issue in question. (ii) Order of this Court dated 23r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in course of hearing and particularly taking into consideration the judgment of the Hon ble Supreme Court in the case of S. Kasi vs- State reported in 2020 SCC OnLine SC 529 Para 16 (i) (ii) wherein scope and ambit of the order of the Hon ble Supreme Court dated 23.03.2020 in Suo moto Writ Petition (Civil) No. 3 of 2020 (supra) has been considered and elaborately discussed with regard to the limitation prescribed for filing petitions / Applications /Suits/all other proceedings and it appears from the said order dated 23.03.2020 which was extended from time to time to obviate the difficulties faced by lawyers/litigants who had to come physically to file such proceedings in respective Courts/Tribunals, in my considered opinion Adjudicating authority/Respondent No. 2 cannot call himself a litigant or advocate or a Tribunal or a Court or a quasi-judicial authority within the ambit and scope of the aforesaid order of the Hon ble Supreme Court in Suo moto Writ Petition (Civil) No. 3 of 2020 (supra) in defending the action of not passing the order under Section 8 (3) of the aforesaid Act for extension or confirmation of the order dated 11th December, 2020 under Section 5 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tainable since the impugned order of provisional attachment of bank accounts and postal accounts in question of the petitioner, dated 11th December, 2019, which has expired its validity on 9th June, 2021, has no force after expiry of 180 days from the date of passing of such order in view of not passing any formal order under Section 8 (3) of the said Act extending the validity of the same by the Respondent No. 2 and the action of Respondent No. 3 in not allowing the petitioner to operate its bank and postal accounts in question after the expiry of the period validity of 180 days from the date of the order passed under Section 5 (1) of the aforesaid Act, such action of the Respondent Enforcement authority, is arbitrary and illegal. In view of the discussion made above this Writ Petition is allowed by declaring that the impugned order of provisional attachment of Bank accounts and postal accounts in question dated 11th December, 2019 passed under Section 5 (1) of The Prevention of Money Laundering Act, 2002 after expiry of 180 days on 9th June, 2021 is ceased to have any effect or force as a consequence of failure on the part of the Respondent Enforcement authority/Adjudicating a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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