TaxTMI 
TaxTMI 
2019 (3) TMI 1441
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....in the said FIR. On the basis of the said FIR, an ECIR No. HQ/17/2017 dated 27.10.2017 was registered by the Respondent. Appeal no. 2370 and 2372 of 2018 - Shri Arvind Gupta 3. The only allegation against Shri Arvind Gupta - appellant is that he was involved in erasing and taking backup of certain digital data/records pertaining to one Ghanshyam Pandya and that the appellant was in possession of certain documents/records/property etc. relating to money laundering. 4. On 30.11.2017, the residential premises of the Appellant was searched on many dates interrogated and as per the case of the appellant that he forced to sign the statements. On behalf of appellant, it is stated when the Appellant requested the Respondent to write his statements in Gujrati, the officers turned down the said request. 5. During the search, the Respondent sealed 4 Mobile Phones, 2 Pen Drives, 2 Mobile Tablets and 1 Laptop of the Appellant. 6. Nothing has been brought on record till now to prove that the seized properties have any nexus or link whatsoever with money laundering. In the impugned order, the application of the respondent for retention of the property was allowed. It is also explai....
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....cating Authority passed an order under section 8(3) of PMLA confirming the retention of the property without satisfying the statutory requirement enshrined in provisions of section 20 of PMLA. Section 20 (1) mandates that the officer authorised by the Director is under an obligation to record the 'reason to believe' in writing as to why the seized property is to be retained for the purposes of adjudication under section 8. 12. It is also admitted on behalf of the appellants that Section 20 (2) makes it mandatory for the officer authorised by the Director to pass an order for retention of the property for the purpose of adjudication under section 8 and forward a copy of the same along with material in his possession in a sealed envelope to the Adjudicating Authority. The same is reinforced in Rule 4 of the Prevention of Money Laundering (The manner of Forwarding a copy of the Order of Retention of Seized Property along with the material to the Adjudicating Authority and the Period of its Retention) Rules, 2005. On the basis of the 'reason to believe' recorded under section 20(1) and the order passed under section 20 (2), the Adjudicating Authority has to record a satisfaction und....
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....arch any building, place, vessel, vehicle or aircraft where he has reason to suspect that such records or proceeds of crime are kept; (b) break open the lock of any door, box, locker, safe, almirah or other receptacle for exercising the powers conferred by clause (a) where the keys thereof are not available; (c) seize any record or property found as a result of such search; (d) place marks of identification on such record or [property, if required or] make or cause to be made extracts or copies therefrom; (e) make a note or an inventory of such record or property; (f) examine on oath any person, who is found to be in possession or control of any record or property, in respect of all matters relevant for the purposes of any investigation under this Act: [Provided that no search shall be conducted unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under section 157 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint has been filed by a person, authorised to investigate the offence mentioned in the Schedule, before a Magistrate or court for taking cognizance of the scheduled of....
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.... for continuation of the order of freezing served under sub- Section (1A), before the Adjudicating Authority.]. 15. Section 18 of PMLA, 2002 reads as under: "18. Search of persons. - (1) If an authority, authorised in this behalf by the Central Government by general or special order, has reason to believe (the reason for such belief to be recorded in writing) that any person has secreted about his person or in anything under his possession, ownership or control, any record or proceeds of crime which may be useful for or relevant to any proceedings under this Act, he may search that person and seize such record or property which may be useful for or relevant to any proceedings under this Act: [Provided that no search of any person shall be made unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under section 173 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint has been filed by a person authorised to investigate the offence mentioned in the Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be.] (2) The authority, who has been authorise....
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.... property, before the Adjudicating Authority. 16. Sub-section (1), (2) and (3) of Section 20 read as under:- 20. Retention of property.- (1) Where any property has been seized under section 17 or section 18 or frozen under sub-Section (1A) of Section 17 and the officer authorised by the Director in this behalf has, on the basis of material in his possession, reason to believe (the reason for such belief to be recorded by him in writing) that such property is required to be retained for the purposes of adjudication under section 8, such property may, if seized be retained or if frozen, may continue to remain frozen, for a period not exceeding one hundred and eighty days from the day on which such property was seized or frozen, as the case may be. (2) The officer authorized by the Director shall, immediately after he has passed an order for retention or continuation of freezing of the property for purposes of adjudication under section 8, forward a copy of the order along with the material in his possession, referred to in sub-section (1), to the Adjudicating Authority, in a sealed cover, in the manner as may be prescribed and such Adjudicating Authority....
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....oceedings under this Act. ] 18. It is clear from the reading of Sections 17 to 21 that outer limit upto the date for deciding the application for retention of property within the meaning of sub-section 4 of Section 21 is 180 days from the date of seizure of any property or records. The said period is not extendable. 19. The person concerned/aggrieved party of such order, is entitled to file the appeal under Section 26 of the Act. The same shall be heard and after giving an opportunity of being heard, the appellant Tribunal shall pass the order either to confirm the order of retention or to modify or setting aside the same. 20. Where the Adjudicating Authority decides by an order confirm the retention under Sub-section (1) of Section 17 or Section 18 for the purpose of continuation during investigation for a period not exceeding ninety days under this Act before the Competent Court, or under the corresponding law of any other countries as the case may be under Subsection (3) (a) of Section 8 may take necessary action within the time prescribed. In failure to do so under this Act, all the proceedings, seizures/frozen under Section 17 would be lapsed ipso facto. 21. It is ....