TaxTMI 
TaxTMI 
2017 (8) TMI 670
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....war Hussain. 3. Mr. K. Anwar Hussain during the course of his business (as alleged by him) came in contact with one Mr. Sekar, who was then, holding public office as Protector of Emigrants (hereinafter referred to as POE) in Chennai during the period 2007-2009. In one of the business dealings, Mr. Sekar enquired about availability of lands, which gave rise to series of meetings between him and the appellant. The appellant developed a good acquaintance with him. The appellant accompanied Mr. Sekar for various site visits in connection with land dealings. 4. Based on information received from the office of superintendent of Police, CBI, ACB, Chennai. The surprise check was conducted on 20.07.2009 by the officers of CBI in the office of one Shri D. Ravindra Babu, Chairman Andhra Pradesh. During the check, enquiries were made, the officers seized Rs. 13 lakhs along with other documents from the said premises after recording the Mahazar. 5. Subsequently, the officers of CBI also conducted a Search on 20.07.2009 in the office premises of the appellant's brother, operating in the name of M/s. Classic Tours & Travels Kodambakkam, and seized articles and cash of Rs. 3.65 lakhs ....
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....has denied allegations that the amount seized from the appellant and D. Ravindra Babu and K.K. Kumar belonged to him. 14. Based on the above provisional attachment order, 5 original complaints were filed by the Respondent against the Appellant and others vide O.C. Nos. 277 - 281/2014, all dated 02.04.2014 under Sec. 8 of PMLA, 2002 for confirmation under Sec 8(2) of PMLA, 2002 of the Provisional Attachment Order Nos. 02-06/2014, all dated 10.03.2014. 15. The notices were received by the appellant from the Adjudicating Authority dated 27.05.2014 for the hearing dated 02.06.2014 to appear for personal hearing. Appellant & other sent a reply stating and they deny all the allegations of CBI and respondent herein. 16. The Common Order dated 22.08.2014 passed by the Adjudicating Authority in OC Nos. 277-281/2014 confirming the Provisional Attachment Order Nos. 02-06/2014 dated 10.03.2014 that the properties were belonging to the appellant and earned as proceeds of crime without considering the reply filed by him and also without considering the fact that no material has been placed by the respondent to show that the movable property so seized either by CBI/ACB or by the Responde....
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....61/2015 was filed by ED in Principal Special Judge for CBI Court under Sec. 8(4) of PMLA read with Rule 7 of Prevention of Money Laundering (Taking Possession of attached or frozen properties confirmed by the Adjudicating Authority), Rules, 2013 seeking release even though money transferred to their account without following the right process and bringing it to the knowledge of the Court. 26. On 11.03.2015, the CBI Court dismisses petition as not maintainable and ED was directed to repay the proceeds of the custody of Principal Special Judge, immediately with liberty to file a fresh application before the special court, to be decided along with the main case. The operative part of para 23 to 25 of the order is reproduced here under:- "23. As rightly contended by. the learned Senior Public Prosecutor appearing for the l51 respondent, Rule 7 of the Prevention of Money-Laundering (taking possession of attached or frozen properties confirmed by the Adjudicating Authority) Rules, 2013 prescribes certain procedures for taking over the property if it is in the custody of any Court. The said Rule 7 is as follows:- "7. Confirmed attached property in the custody of Court - (1) Where....
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....the petitioner to rectify the irregularities committed by them. Subject to the above directions, this petition is liable to be rejected as not maintainable is the conclusion arrived by this Court. As above the point is answered. Hence, the following order is passed. 25. In the result, it is ordered as below:- (a) This petition is not maintainable before this Court at this stage and therefore, the same is rejected. (b) The petitioner is directed to repay the proceeds of the Fixed Deposit accounts, standing in the name of this Court, bearing A/c Nos.60144580000095/1 in Syndicate Bank, Egmore Branch at Chennai and bearing A/c No.860061269 in Indian Bank. Velachery Branch at Chennai, which were received bythe petitioner to the said concerned Banks immediately. (c) The Chief Manager, Syndicate Bank, Egmore Branch at Chennai, is directed to renew the Fixed Deposit account bearing A/c No. 60144580000095/1 and the Branch Manager, Indian Bank. Velachery Branch at Chennai is directed to renew the Fixed Deposit account bearing A/c No.860061269, as if they were not closed at the instance of the petitioner and thereafter to issue the renewed Fixed Deposit Receipts in the name of thi....
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....om the CBI Court. 32. The proviso to Sec. 5(1) is an emergent provision to enable the Deputy Director to attach the properties immediately. In the present case, neither the Respondent nor the Adjudicating Authority had justified the "Immediate" provisional attachment made after almost 5 years from the initiation of proceedings by CBI in 2009 while passing the Impugned confirmation order. 33. The entire case of the respondent rests only on the seizure by CBI on 20.07.2009. Actually no investigation is conducted by the Respondent. Further all the statements of the private persons under Sec. 50 of PMLA is reiteration of their statements before CBI and magistrate. The attachment was made after almost 5 years after the initiation of the criminal proceedings. 34. Hence there is no valid justification in provisionally attaching the properties by the Respondent which were already in the custody of the Special Court for CBI Cases, Chennai from 2009 by the Respondent and further confirming the same by the Adjudicating Authority. Though no property has been seized from the Appellant, the Appellant would like to submit the following legal points before this Hon'ble Tribunal on Acad....
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....ppointing the Receiver in respect of the property, is void ab initio. In the instant case, we do not think it necessary to go into the question raised by the learned counsel for the respondents that a sale of a property in the hands of the Court through its Receiver, without the leave of the Court, is a nullity. The American Courts appear to have taken the view that such a sale is void. In our opinion, it is enough to point out that the High Court took the view that the sale was voidable and could be declared illegal in a proper proceeding or by suit. We shall assume for the purposes of this case that such a sale is only voidable and not void ab initio. 8. On the assumption that the sale held in this case without the leave of the Court and without notice to the Receiver, is only voidable and can be declared illegal on that very ground, the suit had been instituted for the declaration that the sale by the revenue courts was illegal. The plaint was subsequently amended by adding the relief for recovery of possession, „because in the meanwhile, the auction-purchaser had obtained delivery of possession of the property through the revenue authorities, some time in 1940. The gen....
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.... the petitioner has committed an offence under section 3 of the Act or is in possession of proceeds of crime is not well founded. The notice has. for all practical purposes, adopted, incorporated the complaint in toto. The notice, fairly read, indicates that the Adjudicating Authority, on the basis of the material in the complaint had reason to believe that the ingredients necessary for the attachment order existed. So read, it follows that the Adjudicating Authority stated in the show cause notice that he had reason to believe that there existed the factors necessary to serve the notice. The reasons, in turn, stand incorporated in the notice from the complaint. It is apparent that the notice has been issued based on the reasons to be found in the complaint and the documents which have been expressly referred to in the complaint. The complaint itself expressly sets out the reason to believe. If. on the basis of the facts disclosed in the enclosures, the Adjudicating Authority had formed the opinion that there was no reason to believe the existence of the factors mentioned in section 8. he would not have issued the show cause notice. That he did indicates that he had reason to belie....
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....ecially when this Court had come to a final conclusion that the policy with regard to reservation in the matter of promotion to the employees was not legal and proper. 14. We are of the view that it was not open to the High Court to hold that the judgment delivered by this Court in South Central Railway Employees Coop. Credit Society Employees' Union v. Registrar of Coop. Societies was per incuriam. 15. If the view taken by the High Court is accepted, in our opinion, there would be total chaos in this country because in that case there would be no finality to any order passed by this Court. When a higher court has rendered a particular decision, the said decision must be followed by a subordinate or lower court unless it is distinguished or overruled or set aside. The High Court had considered several provisions which, in its opinion, had not been considered or argued before this Court when CA No. 4343 of 1988 was decided. If the litigants or lawyers are permitted to argue that something what was correct, but was not argued earlier before the higher court and on that ground if the courts below are permitted to take a different view in a matter, possibly the entire law in ....