TMI Blog2022 (10) TMI 1081X X X X Extracts X X X X X X X X Extracts X X X X ..... r and jurisdiction or of the authority and the entire proceeding initiated under PMLA, 2002 has been challenged on the ground that the authorities under PMLA are not having their jurisdiction to initiate the proceeding in the given facts of the present case - this Court is of the considered opinion that in the aforesaid factual backdrop neither the adjudication under Section 8 or Section 26 can be treated as an officious alternative remedy when the jurisdiction of authority itself is questioned. Plea of forum non convenience - HELD THAT:- Section 42 of the Act, provides that High Court shall be an appellate authority against the decision of the appellate tribunal constituted under Section 25 of the PMLA, 2002. In the case in hand, the proceeding was admittedly initiated by the authorities of the Enforcement Directorate at Guwahati Zonal Office, Rajgarh in the State of Assam and as the jurisdiction of the said authority in initiating the proceeding under PMLA, 2002 is the subject matter, this Court is of the considered opinion that this Court shall have a jurisdiction to entertain the petition inasmuch as at least cause of action in part arose within the jurisdiction of this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ves a right to the person aggrieved by an order of confirmation of provisional attachment to approach to the Appellate Tribunal. The order of such Appellate Authority can further be challenged before the High Court under Section 42 of the PMLA Act. The High Court shall have power to deal with any question of fact or law in such a proceeding - the present petitioner shall have opportunities as provided under the Act and agitate the same before the authority under the PMLA Act. This Court is of the considered opinion that the present is not a fit case wherein this Court should interfere with the order of provisional attachment in exercise of its power under Article 226 of the Constitution of India inasmuch as this Court has held that the authority is having its power and jurisdiction to issue the impugned order of attachment and that the adjudicating authority is having the power and duty to examine the validity of the order of attachment and test the same including the ground of satisfaction that is required under Section 5(1) (a) and (b) of the PMLA Act - the provisional attachment order is not interfered with. Petition disposed off. - Case No. : WP(C)/81/2019 - - - Dated:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of land called Mawpali as village forest. It is the further claim of the petitioner No. 1 that the Soil Conservation Department of erstwhile State of Assam (prior to re-organization of the State of Meghalaya) entered into an agreement in the year 1953 for plantation in the Mawpali hill with a promise that the land will be returned back to the petitioner No. 1 being the rightful owner. II. Subsequently around the year 1994, the petitioner No. 1 through its representative, started initiating the process of return of the Mawpali hill to the petitioner No. 1. Ultimately in a meeting held in the Office Chamber of the concerned Minister, on 05.12.1994, it was decided to return back Mawpali to the petitioner No. 1 with a request to the petitioner No. 1 to reserve the road sides of National Highway and to protect matured trees with a further decision that the same will be handed over by December, 1994. III. Subsequently, in a preceding under Section 145 of Cr.P.C. between the Divisional Soil Conservation Officer and the Headman of the Village (the petitioner No.1), the Executive Magistrate while closing the C.R.( Misc. 14/1996) held that the village is having the possession of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of L.A. Case No. 9/2009, the Collector passed an order on 16.06.2021, issuing a notice to the person interested for payment of 80%. Accordingly, notice was issued to the petitioner No. 2 and cheque was handed over to him. XI. Thereafter, on 08.10.2012, the Deputy Commissioner by the even dated communication addressed to the petitioners being land owner/general power of attorney holder intimated that the plantation in Mawpali has been under the Soil Conservation Department last 40- 52 years and therefore the land acquisition proceeding needs to be quashed and payment made needs to be recovered. Accordingly, a notice on 15.10.2012 was issued to the Headman of the petitioner No. 1. The petitioner No. 1 by its communication dated 25.10.2012 objected to such proposal and on failure to evoke any response, approached the High Court of Meghalaya by filing a writ petition with a further prayer to direct the respondents to release the outstanding amount. XII. The said writ petition being WP(C) No. 299 of 2012, was disposed of by judgment and order dated 17.02.2014. The High Court set aside and quashed the notice of annulment dated 08.10.2012 and 15.10.2012. It was further held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f law clarifies that to exercise the jurisdiction of attachment of property involved in money laundering , pre condition of commission and proof of a schedule offence is required. The word property involved in money laundering used under Section 5 has to emanate from a determination by a Court of law and not by mere assertion of any prosecuting agency of the State, submits Mr. Dey, learned Senior counsel. VI. He further submits that in the present case except a mere allegation, nothing is discernable and therefore the stage at which the proceeding under the PMLA 02 has been initiated, the prosecuting agency was not having a jurisdiction to initiate such proceeding and therefore, the entire proceeding is nothing but a nullity, the same being initiated without having jurisdiction. VII. Mr. Dey, learned Senior Counsel submits that, the terms used in Section 5(1) (a) (b) of the Prevention of Money Laundering Act, 2002 i.e. proceeds of crime itself makes the position clear that is not the proceeds of a suspected or alleged crime but the commission of crime itself, the factum of commission whereof can be proved and certified to be so, only by a final judgment order of a C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l basis to initiate a proceeding under PMLA, 02 is commission of a schedule offence and until and unless such schedule offence is proved, proceeding under PMLA, 02 cannot even be initiated. In support of his contention, Mr. decision of Delhi High Court in case of Rajeev Charnan Vs- Deputy Director, Directorate of Enforcement (Criminal Misc. Case No. 5508/2014) decided on 09.04.2014. XII. Mr. Dey, learned Senior Counsel argues that in the present case, there is no material, which could proceedly lead to a belief that petitioner is likely to transfer or conceal the property in any manner. The satisfaction of the authority to provisionally attach under Section 5, must have a reason be believe on the basis of materials on his possession that the property sought to be attached is likely to be concealed, transferred or dealt with in any manner, which may result in frustrating any proceeding for confiscation of their property under the Act. Therefore, without having any materials, the provisional attachment is required to be set aside. In support of his contention, Mr. Dey relies of the decision of the Delhi High Court in the case of Mahanivish Oil Foods Pvt. Ltd. Vs- Directo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itial authority under Section 5(5) of the PMLA, 2002 can proceed with the adjudication on the basis of subjective satisfaction, submits Ms. A. Gayan, learned C.G.C. V. The petitioners are having alternative remedy to file their reply before the adjudicating authority and in the event the decision of the Appellate Tribunal is against them, they can approach the statutory appellate tribunal and even if such appeal is against them, they can approach this Court and therefore, in the given facts of the present case, this writ petition should not be entertained as the petitions are having officious alternative for redressal of their grievance. 7. The respondent Nos. 5 and 6, though is not related with PMLA, however, the initial prosecution under IPC was lodged by the respondent Nos. 5 and 6 by filing FIR before the CID. The respondent Nos. 5 and 6 has raised a preliminary objection that the present writ petition is not maintainable on the ground of forum conveniens. In this regard, the learned counsel submits that the petitioners are residence of Meghalaya and ordinarily resides and carry on their business in the State of Meghalaya. Therefore, the Hon ble High Court of Meghalaya is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alternative remedy when the jurisdiction of authority itself is questioned. 11. Plea of forum non convenience: Forum non convenience is a discretionary power that allows Court to dismiss a case where another Court or forum is much better suited to hear the case. Dismissal on such ground does not prevent a litigant refilling such case in the more appropriate forum. While determining such issue one of the important factor of considering is the interest of the party, who has raised the issue. Another consideration is whether the forum/Court chosen by the petitioner shall be burdensome to the party raising such plea. Law is well settled that the Court while dismissing a petition on the ground of forum non convenience, must have satisfaction that there is another available forum having jurisdiction and the forum chosen by the plaintiff is not disturbed until and unless, the balance of convenience is strongly in favour of the party raising such plea. While determining such issue, Court is to consider certain factors such as availability of more appropriate forum, other important factors which affect the convenience of parties like expenses involved. Therefore, while determining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion given in Section 42 relating to appeal before the High Court shall not be applicable in toto. Therefore, the argument of the Mr. Sarma, learned counsel in this regard is also rejected. 13. The jurisdiction : Mr. S. S. Dey, learned Senior Counsel heavily relies on that the term criminal activity used in Section 2(u) to project that to initiate a proceeding under the PMLA, 2002, the condition precedent is that the proceeds of crime must result from criminal activity relating to a schedule offence and the criminal activity shall all meaning or purport should mean proved criminal activity by a court of law, which adjudicated the schedule offence and then only the question of initiation of proceeding under PMLA, 2002 shall be permissible. Mr. Dey, further submits that the authority under PMLA, 2002 cannot be allowed to initiate a proceeding where the base that is the criminal activity is not yet established. In substance, his argument is that the criminal activity as reflected in Section 2(u) shall mean proved criminal activity by a competent court relating to a schedule offence. Criminal activity though not defined in the Act, shall mean act or commission which are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be dealt in a way which may result in frustrating any proceeding relating to confiscation. It is further provided that the power of provisional attachment can be exercised with additional ground that if such property is not attached immediately, it is likely to frustrate the proceeding under the Act. Such satisfaction must based on material in his possession and should be in writing. 18. Section 5 of the PMLA Act, empowers attachment and provisional attachment to protect the proceeds of crime being frustrated from confiscation by way of concealment, transfer etc. The provisional attachment can be made when the situation is urgent and immediate action is necessary. However, such apprehension/ satisfaction must have on the basis of material in the possession of the authority issuing such attachment. Such satisfaction, a reading of the language of the Act, is a subjective satisfaction and therefore, there is no scope for this Court to examine the sufficiency of ground on the basis of which such opinion is formed. However, the language of the Section 5 of the PMLA Act, clarifies that there must be materials and only on the basis of which it can have the belief that the person is in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion that the Section 5 provides for a balancing arrangement to secure the interest of the persons and also ensures that proceeds of crime remain available to be dealt with in the manner provided by the PMLA Act. The Court also came to a conclusion that there were procedural safeguard to protect the interest of the person in the Section 5 of the PMLA, Act itself. 22. While dealing with Section 8 of the PMLA Act, the Hon ble Apex Court in Bijay Madanlal Choudhary (supra) held that the adjudicating authority may disagree and not confirm the provisional attachment, in which case attachment over the property seizes. 23. The order of the adjudicating authority can also be challenged before the Appellate Authority. Section 26 (1) of the PMLA Act gives a right to the person aggrieved by an order of confirmation of provisional attachment to approach to the Appellate Tribunal. The order of such Appellate Authority can further be challenged before the High Court under Section 42 of the PMLA Act. The High Court shall have power to deal with any question of fact or law in such a proceeding. 24. From the aforesaid it is clear that the present petitioner shall have opportunit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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