9911796707
TMI Blog2025 (5) TMI 1137X X X X Extracts X X X X X X X X Extracts X X X X ..... 49117.00 6 7713031039750 1136708.00 7 4160000100082075 PNB Nagra, Ajmer Narendra Tanwar 1041121.00 8 416000100001612 Manju Tanwar 1670993.00 9 4160007600001603 Priyanshu Tanwar 1144934.00 10 680401429368 ICICI RBSE Campus, Ajmer Narendra Tanwar 93152.52 11 680414000904 5554.00 12 680414001662 109695.00 13 91104000164832 IDBI Shankar Place, Opp. City Power House, Ajmer Narendra Tanwar 758683.00 14 91104000192729 Manju Tanwar 419366.00 15 14261088 (Dmat A/c) Narendra Tanwar 41550.00 16 330310094044 UCO Bank Purani Mandi, Ajmer Manju Tanwar 1135946.00 17 330310083000 1097982.00 Total 2,31,04,618.13 2. As per the facts of the case, the Anti-Corruption Bureau (ACB) of Ajmer registered an FIR bearing No. 99/2013 on 14.03.2013 against Shri Narendra Kumar Tanwar. In the FIR, it is alleged that Shri Narendra Kumar Tanwar, while he was posted in various departments amassed huge assets (both movable and immovable) estimated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t investigation has been conducted by ED and hence, the attachment needs to be set-aside. In support of his contention, he relied on the judgment of this tribunal in case of Yashraj Films Pvt. Ltd. v. the Deputy Director, ED, Mumbai, MANU ML 0022/2019, wherein it was held that: "the power given to the officer concerned is not an arbitrary power and has to be exercised in accordance with the restraints imposed by law. The belief must be that an honest and reasonable person and based upon reasonable grounds, the officer concerned may act on direct or circumstantial evidence, but not on mere suspicious or the allegations mentioned in the FIR or chargesheet so that the same can be scrutinized in order to verify they are relevant and germane or not." He stressed that in the present case, the ED has not independently investigated the allegation of disproportionate assets to the known sources of income, but merely relied upon the allegations as levelled in the FIR/ chargesheet, whereas, Section 5 of PMLA requires the reasons to believe to be recorded in writing for attachment of the property after satisfying that it was involved in the offence of money laundering. Accordingly, he stres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17.2 In the present case, concededly property was purchased in 1991 and mortgaged with bank in 2009. The alleged offence was committed in 2013 whereas attachment order was passed in December 2017. There is nothing on record to show that Appellants after 2009 or 2013 attempted to dispose of the property in question which prompted the Respondent to pass attachment order. The Respondent has simply taken wording of Section 5(1) of the PMLA and reiteration of these words would not constitute recording of reasons that if property is not attached, it may result in frustrating any proceedings of confiscation. The Respondent was bound to record the reasons on the basis of material in his possession that property is likely to be concealed or transferred or dealt with in any manner. Use of all the words i.e. concealed, transferred or dealt with in any manner shows that Respondent was not specific with respect to possibility of action of Appellant which would have frustrated proceedings of confiscation. It further shows that there was no application of mind and Respondent simply picked up words from Section 5 of the PMLA and inserted in the order. Accordingly, we hold that Respondent has pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 for confirmation of said PAO. Accordingly, he stressed that the present confirmation order based on PAO No.4/2014 of the scheduled offence is not maintainable, since the proceeds of crime have already been attached by the ED. After investigation in second FIR, chargesheet no. 76/2014 dated 27.03.2014 was filed against him. Hence the present attachment vide PAO No. 04/2014 needs to be set aside, on account of double attachment. He argued that the property as seized by ACB, Ajmer, has been seized as part of disproportionate asset which is exactly the same amount as attached by Respondent ED. Moreover, the intent of seizure under PC Act, for an offence u/s 13(1)(e) is similar to that of PMLA i.e. to confiscate the seized property at the end of the trial. Accordingly, he stressed that the prerequisite twin conditions for attachment are not fulfilled and hence, present attachment and its confirmation needs to be set aside. Prayer is accordingly made to allow the present appeals. 4. On the other hand, Respondent ED controverted the submissions made by Ld. Counsel for the appellants, which will be reflected in my detailed discussion and conclusions in the following paras. 5. After he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Whether the said proceeds of crime are laundered, or likely to be laundered; iv) If proceeds of crime are laundered, then the mode of layering of the same, or the trail of POC; v) If proceeds of crime are already dissipated, then the other properties of the culprits which can be attached, in absence of direct/indirect POC; vi) Whether the claimants of attached properties are genuine, or part & parcel of conspiracy. In case of commission of offence u/s 13(1)(e) of PC Act, the quantum of disproportionate assets to the known sources of income of the family of the public servant is the proceeds of crime, in absence of any explanation for acquisition of the same. As per investigation conducted by ACB of Rajasthan Police, appellants were found in possession of the disproportionate assets to the tune of Rs. 6,79,59,678/-. Thus, ED was empowered to attach the assets of the appellants to that extent. But, in the present case, police seized the bank accounts and Demat A/c for sum of Rs. 2,31,04,618.13 which were later-on attached by ED vide PAO No. 04/2014. Thus, the contention of the appellant that ED has not conducted any independent investigation is devoid of any merits, as ED is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial and in case of conviction Ld. Special Judge, PMLA Court can confiscate the same. Accordingly, issue no. ii) & iii) are decided against the appellants. 8. Now coming to the last issue - Whether based on the second FIR No. 196/2013 dated 10.05.2013, ED is empowered to make the attachment to the tune of Rs. 1,60,85,107/- vide PAO No. 08/2014 in Original Complaint No. 373/2014? In this regard, it is pertinent to mention here that on admission of the appellant, PAO No. 08/2014 dated 30.09.2014 and its confirmation by Adjudicating Authority was made on 27.01.2015. Thus, this particular order was passed after the passing of PAO No. 04/2014 and the present impugned order dated 30.07.2014. Appellants have not filed any appeal against the later confirmation order dated 27.01.2015. Even there is nothing on record to show that the properties for the sum of Rs. 1,60,85,107/- are overlapping with the present confirmation order dated 30.07.2014. Hence, this issue is also decided against the appellant and in favour of the Respondent ED. 9. In sequel to my discussion in the preceding paras no. 5 to 8, the present appeals are hereby dismissed being devoid of any merits. However, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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