TMI Blog2022 (1) TMI 1340X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been charged / mortgaged to appellant. It is possible that additional respondent nos.1 and 2 may argue that action by respondents under the provisions of PMLA was incorrect or malafide but that is a separate issue and that cannot deny the fact that the property has been secured to appellant. These are issues which requires consideration. But until these issues are considered, if the property which has been attached under the provisions of PMLA, which are also secured to appellant are not disposed, the property may get wasted or encroached upon and the value would also get eroded. It would be to nobody's benefit. Therefore, purely by way of an interim adhoc arrangement, we pass the following order: (a) The properties which are m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1st December 2020 passed by the Appellate Tribunal for SAFEMA, FEMA, PMLA, NDPS PBPT Act, at New Delhi, while considering the appeal that appellant had filed against an order dated 16th January 2019 passed by the Adjudicating Authority confirming provisional attachment order (PAO) No.11 of 2018 dated 31st July 2018. Respondent to the appeal, i.e., Directorate of Enforcement (PMLA) Chennai, have registered a case against various individuals/ firms / company for commission of offence under the provisions of Prevention of Money Laundering Act (PMLA). One of the accused is M/s Nathella Sampath Jewellery Pvt. Ltd., Chennai. Some of the properties, against which the provisional attachment order has been passed are charged to appellant herein. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the respondent could have passed the provisional attachment order in the absence of any allegation that the appellant or its officers committed any offence ? (f)Whether the secured assets are the proceeds of crime ? (g) Whether the secured assets are likely to be transferred or dealt with in any manner which may frustrate any proceedings relating to confiscation thereof ? (h) Whether the respondent has adequate reason to believe that the subject properties are the proceeds of crime and that the same are likely to be transferred or dealt with in any manner which may frustrate any proceedings relating to consideration thereof ? 3. In the mean while, appellant has taken out this Interim Application No.9864 of 2022 for the follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cement are involved in money laundering or proceeds of crime and the same shall be considered as case properties which are liable to be confiscated by the Special Court (PMLA) after successful prosecution. (d) The PMLA provides for overriding effect to the provisions of Act. Section 71 of the PMLA clearly lays down that, the provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Furthermore, section 65 of PMLA further makes the position clear by stating that the provisions of the Code shall apply, in so far as they are not inconsistent with the provisions of PMLA, even as regards arrest, search and seizure, attachment, confiscation, investiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der PMLA is not illegal only because a secured creditor has a prior secured interest (charge) in the property, within the meaning of the expressions used in RDBA and SARFAESI Act. Similarly, mere issuance of an order of attachment under PMLA does not ipso facto render illegal a prior charge or encumbrance of a secured creditor, the claim of the latter for release (or restoration) from PMLA attachment being dependent on its bonafides. (g) In terms of section 8(5) of PMLA the intention of the legislature is clear that on conclusion of trial for the offence of money laundering, the property involved in money laundering which can be used for commission of offence of money laundering shall stand confiscated to the Central Govt. (h) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be decided by way of filing an application by petitioner herein under Section 8(7) or 8(8) in CC No.20/2019. 5. Prima facie, considering the appeal memo and interim application, it does appear that properties of additional respondent no.1 and additional respondent no.2 as mentioned in paragraph 1 of the appeal memo, have been charged / mortgaged to appellant. It is possible that additional respondent nos.1 and 2 may argue that action by respondents under the provisions of PMLA was incorrect or malafide but that is a separate issue and that cannot deny the fact that the property has been secured to appellant. 6. In our view, these are issues which requires consideration. But until these issues are considered, if the property which h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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