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TMI Blog2023 (10) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... estated statute. 2. Properties of the petitioners have been subjected to five different provisional attachments under the PMLA. The challenge in the writ petition is against the provisional attachment order dated 09.06.2023, as well as the order dated 12.05.2022, freezing the movable properties, including mutual funds and fixed deposits of the writ petitioners. The aforesaid two orders are produced in the writ petition as Ext. P25 as well as Ext. P21, respectively. There is an ancillary challenge against the seizure memo, which is produced as Ext. P22 3. The second petitioner is a Company which is the Distributor of Sikkim Lotteries. The first petitioner is its Managing Director. The issue relates to the period 01.04.2009 to 31.08.2010. Petitioners are the first and third accused in C.C. No. 218 of 2015 on the files of the Chief Judicial Magistrate, Ernakulam. The crime was investigated by the CBI. Based on the above case, the Enforcement Directorate (for short 'the ED') registered a case as ECIR No. 4 of 2014, which is now pending before the Special Court (Principal Sessions Court) Ernakulam as S.C. No. 533 of 2018 under the PMLA. The offences alleged in C.C. No. 218 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecting inter alia to the maintainability of the writ petition itself. Respondents pleaded that petitioners have an effective remedy under the provisions of the PMLA to raise all these contentions, including the lack of authority and even excessive attachment, before the statutory authorities created under the PMLA. Respondents have also pleaded that the first petitioner has invested the proceeds of crime in immovable properties by floating more than 40 companies and has projected the proceeds of crime as untainted properties. The respondents have also stated that the prosecution complaint was filed on 11-06-2018 and the Special Court has even taken cognizance as S.C. No. 533 of 2018. A supplementary report was also filed on 03.06.2022. It is also averred that the order of attachment has been issued after narrating the reasons to believe and also that if the attachment is not effected, it will frustrate the proceedings under the PMLA. 8. I have heard Sri. Mukul Rohatgi and Sri. Ramesh Babu learned Senior Counsel duly instructed by Sri. A. Kumar, learned counsel for the petitioners. I have also heard Senior Counsel Sri. A.R.L. Sundareshan, the learned Additional Solicitor General of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order runs into 110 number of pages filled with repetitions. The Authority that issued Ext. P25 would have done well had he borne in mind that long orders do not necessarily create fool proof orders. 12. Notwithstanding the above, for consideration of the issues raised, it is appropriate to tabulate the attachment orders issued till date, as is revealed from the pleadings. The following are the provisional attachment oders issued and the value for which they were ordered: Sl. No. Order No & Date Value of Attachment (in Rs.) 1 2/2016 dated 31.03.2016 122,04,03,525/- 2 2/2017 dated 09.02.2017 16,52,04,750/- 3 2/2019 dated 22.07.2019 119,59,54,679/- 4 07/2021 dated 22.12.2021 19,59,08,000/- 5 06/2022 dated 01.07.2022 173,47,74,565/- 6 03/2023 dated 09.06.2023 459,07,42,047/- Total 910,29,87,556/- 13. Of the above six attachments, except the second, the rest are all over the properties of the petitioners. The second attachment is over the property of Sri. N. Jayamurugan. 14. The PMLA was enacted as a preventive and punitive measure to combat the evil of money laundering. The Criminal Law Amendment Ordinance of 1944, a pre-existing law, was insufficient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, file a complaint before the Adjudicating Authority constituted under section 6. The said Adjudicating Authority consists of a Chairperson who is qualified for appointment as a District Judge, apart from other members. Thus an independent body consisting of a legally qualified person has been created to consider the validity or otherwise of the provisional order of attachment. The nature of the body with a legal person and an independent and composite structure, enhances the credibility of the said Authority. 18. Section 8 of the PMLA deals with adjudication and states that immediately on receipt of a complaint under section 5(5) of the PMLA, notice will have to be served in a time-bound manner, calling upon the person to show cause why the property should not be declared as those involved in money laundering and be confiscated to the Central Government. The notice will also call upon him to indicate the sources of his income, earning or assets out of which he has acquired the properties attached. An opportunity for a hearing is provided under the statute, and the Adjudicating Authority is entitled to consider whether all or any of the properties referred to in the notice are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Surely matters involving the revenue where statutory remedies are available are not such matters. 21. Under the scheme of the PMLA, an independent authority is constituted as the first tier to consider the claim of an aggrieved, regarding the correctness of the provisional attachment. The second tier, in the form of the Appellate Tribunal, is also authorised to consider the correctness of the order of attachment on facts as well. Significantly, even the High Court as an Appellate Court can consider, even on facts, the validity or otherwise of an order of provisional attachment and its consequent orders. When such statutory remedies are provided, including an appellate power on facts as well to the High Court, exercising the power under Article 226 of the Constitution of India would be akin to usurping the power of the Appellate Court. Such a procedure is not legally proper or justifiable, unless there are exceptional reasons to do so. 22. The exceptional reason warranting an interference by this Court under Article 226 of the Constitution of India according to Sri. Rohatgi, the learned Senior Counsel is that the attachment could have been effected only to the extent of the perce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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