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TMI Blog2024 (6) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... 83 of 1994 registered on 24.02.1994 against Iqbal Mohammad Memon for the offences under Section 302/307/34 IPC and Section 3/25 of the Arms Act. Apart from the FIR referred to above, many other cases were registered against Iqbal Mohammad Memon alias Iqbal Mirchi at various Police Station for different offences which includes the offence of smuggling of narcotics and running extortion rackets. 3. The respondents registered the ECIR on 26.09.2019 under the Prevention of Money Laundering Act 2002 (for short `the Act of 2002). It is alleged to be after 25 years of registration of the FIR. The appellants were not named in the ECIR. However, they were summoned by sending a notice on 15.10.2019 to record their statements under Section 50 (2) and (3) of the Act of 2002. A detailed reply/representation was submitted along with copies of the relevant documents. The respondents, however, issued a provisional attachment order of the properties belonging to the appellants vide order dated 11.07.2022. The properties attached under 5(1) of the Act of 2002 are as under : Sr. No. Name of the Property (Unit No) Owned by Address Area as per Registration office (Sq.Mts) Value 1. 1301A Praf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of a small portion of Plot F on the rear side. He was declared to be the owner of the plot due to adverse possession and a Consent Decree was passed by the Court in Suit No. 1318/1980. 7. Shri M.K. Mohammad registered a deed of assignment on 04.04.1990 to transfer the benefit of the Consent Decree to HazraMemon. The appellants had to recognize the adverse possession but in terms of another order of the Court dated 28.05.1999, the area came to the appellant on giving consideration to HazraMemon under a court decree. 8. It is submitted that a Consent Decree was passed by the Bombay High Court on 28.05.1999 where HazraMemon had agreed to remove herself from Plot F and the tenancy created similar to other tenants. An agreement for it was executed on 04.11.2004 pursuant to the order of the Bombay High Court. 9. It is a case of the appellants that the property admeasuring 14000 sq. ftowned by appellant was given to HazraMemon in lieu of consideration of Part of Plot F. The area of 14000 Sq. Ft. thereupon owned by HazraMemon was attached by the respondent and attachment therein has been confirmed by the Adjudicating Authority and by this Tribunal. 10. The learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not constitute a schedule offence and thus would not come under the purview of the Enforcement Directorate but only with a view to harass the appellants, a plea in reference to the above violation is taken. This on the face of the record, the ulterior motives of the respondents gets proved. 15. The property decreed in favour of M.K. Mohammad pursuant to his claim of adverse possession admeasuring 1823.53 Sq. Mts. (19628.31 sq. ft.) was settled pursuant to the Consent Decree and Shri M.K. Mohammad was running two restaurants on the said land in illegally constructed structure admeasuring 5700 sq. ft. The adverse possession was got transferred in the year 1990 in the name of HazraMemon in lieu of the payment of Rs.9,00,000/- representing the proceeds of crime out of smuggling of narcotics and running extortion rackets by Iqbal Mirchi. The appellant however received the property on consideration under the decree of the Court and in lieu of consideration which has already been attached affecting it against HazraMemon for 14000 Sq. Ft. 16. Giving the history, it is stated that a multi-storyed building, namely, Shreeniketanwas constructed on Plot F by Smt. Shantaben M. Patel and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants is nothing but out of the proceeds of crime. Referring to the facts earlier given by the appellants, it is submitted that till the property came to M.K. Mohammad pursuant to Consent Decree on the appointment of Court Receiver, there is no illegality therein, rather the adverse possession of M.K. Mohammad was recognized by the Court thus cannot be questioned. The fact, however, remains that after the property came to M.K. Mohammad pursuant to adverse possession against the owner, the registered deed of assignment was executed on 04.04.1990 between M.K. Mohammad and HazraMemon. The assignment was on the payment of consideration which was out of the proceeds of crime of Iqbal Mirchi who was involved in many cases and was a fugitive offender. The fact aforesaid shows that the property taken by the appellant from HazraMemonwas nothing but out of proceeds of crime and thereby rightly attached by the respondents. It is not a case of double attachment only for the reason that 14000 sq. ft. area given to HazraMemon was subject matter of attachment and has been confirmed by the Tribunal by not causing interference in the order of the Adjudicating Authority. The matter may be pending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd other known as LALIT RESTAURANT from M.K. Mohammad by IqbalMirchi in the name of HazraMemon. The construction of the Restaurants was illegal. However, it has come on record that a Consent Decree recorded in favour of M.K. Mohammad in a suit where Court Receiver was appointed. M.K. Mohammad got possession adverse to the right of the owner on the payment of Rs.7,00,000/- to the Court Receiver and thereby the property came in favour of M.K. Mohammad pursuant to the Court Decree and it has not been questioned by anyone. 25. It is, however, a fact that previously appellant and others got the share of the land Plot F, 2 (part) and 3 and 1/3 of Worli Division bearing new Survey Nos.3345,3347, 1A/03345, Dr. A.B. Road, Worli, Mumbai pursuant to the Conveyance Deed dated 04.11.1963 executed between Maharaja Madhavarao Jivajirao Scindia of Gwalior (seller) and Devchand Chhaganlal Shah to be the purchaser. DevchandChhaganlal Shah sold and transferred the parcel of land of 62485 sq. ft. in aggregate which was formerly known as Shivsagar Estate. It was sub-divided into various plots numbered A to H in terms of a duly sanctioned lay out plan of the plot by the Indenture of Lease dated 07.11.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that on shifting of the proceeds of crime and its attachment by attaching the property of 14000 Sq. Ft. they could not have made further attachment of alleged proceeds in the hands of the appellant. In fact, with exchange of the property and that too under the decree of the Court, the area came to the appellant no more remain to be proceeds of crime otherwise it would be a case of double attachment going against the principles of law. The proceeds of crime came to the HazraMemoni.e. 14000 Sq. Ft. area was attached and the attachment has been confirmed by the Adjudicating Authority followed by further confirmation by this Appellate Tribunal and in that case there was no reason to attach the property belonging to the appellant going against the decree of the court. 30. The appellants cannot be said to be in possession of the property out of the proceeds of crime once it was taken by the appellants on consideration under a Court decree and the consideration given to HazraMemon was subject matter to attachment separately. Once the consideration received by HazraMemon was attached in reference to the FIR and ECIR against Iqbal Mirchi and others, the respondents could not have attached ..... X X X X Extracts X X X X X X X X Extracts X X X X
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