TaxTMI 
TaxTMI 
2019 (5) TMI 472
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.... by single order. The brief facts are taken from Appeal No. 2215/2016 filed by R.B. Prajapati. 4. The brief facts as per the appellant R.P. Prajapati are given as under: a) FIR No. RC. 08(A)/2017-AC. III was registered by CBI/ACCIII/ New Delhi on 30.08.2017 u/s 13(2) r/w section 13(1)(d) of Prevention of Corruption Act, 1988 and Section 120B of the Indian Penal Code, 1860. In the said FIR, allegations were raised against the Sterling Group of Companies comprising of M/s Sterling Biotech Limited, M/s Sterling International Enterprises Limited, M/s PMT Machine Tools Ltd., M/s Sterling Oil Resources Ltd., M/s Sterling Port Ltd. etc. and against Mr. Nitin Jayanti Lal Sandesara and his brother Mr. Chetan Jayanti Lal Sandesara being part of the promoters‟ group. b). In the FIR, Income Tax Department had on 28.06.2011, conducted searches u/s 132 of the Income Tax Act, 1961 covering 25 premises of the abovementioned group entities at Mumbai, Vadodara and Ooty. During the course of search, certain incriminating material including one diary of 2011 was found and seized. This diary contained certain transactions relating to the public servants for the period from 01....
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....judicating Authority allowed the OA No. 121 of 2017 and permitted the Department to retain the seized documents/mobile phones/laptop/hard disc till finalization of the case holding that: i) the OA has rightly been filed by the Joint Director as he had authorised the Assistant Director to search, ii) FIR and the OA prima facie reveal that the scheduled offences are committed and there is a laundering of proceeds of crime. Ongoing investigation is justified in view of the serious allegations leveled against the principal offenders. Hence, there is no justification in demanding back the seized documents and digital evidences. It is only upon scrutiny of material, it will be known as to whether material seized is in any way relevant to and connected with proceeds of crime. iii) as per the provisions of section 21(2), respondent is entitled to have copies of seized material including mirror/dummy images contained in the devices, iv) the nature of document and material as to whether those are of personal nature or otherwise, can be appreciated only after its complete scrutiny by DE, v) it is not in doubt that "Angadia Service" is a permissible....
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....he rest of three appeals which have been filed arising from three OA nos. 132/2017, 126/2017 and 123/2017. Therefore, by single order, all the above mentioned 4 appeals are being decided. 8. From the entire gamut, it has come on record that: a) There is no FIR against the appellant. b) No charge sheet c) No prosecution complaint even after expiry of prescribed period. 9. Section 17 of PMLA, 2002 reads as under: "17 Search and seizure. -(1) Where [the Director or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section,] on the basis of information in his possession, has reason to believe (the reason for such belief to be recorded in writing) that any person - (i) has committed any act which constitutes money-laundering, or (ii) is in possession of any proceeds of crime involved in money-laundering, or (iii) is in possession of any records relating to money-laundering, (or) (iv) is in possession of any property related to crime] then, subject to the rules made in this behalf, he may authorize any officer subordinate to him to - (a) enter a....
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.... has been authorized under sub-section(1) shall, immediately after search and seizure [or upon issuance of a freezing order] forward a copy of the reasons so recorded along with material in his possession, referred to in that sub-section, to the Adjudicating Authority in a sealed envelope, in the manner, as may be prescribed and such Adjudicating Authority shall keep such reason and material for such period, as may be prescribed. (3) Where an authority upon information obtained during survey under section 16, is satisfied that an evidence shall be or is likely to be concealed or tampered with, he may, for reasons to be recorded in writing, enter and search the building or place where such evidence is located and seize that evidence. Provided that no authorization referred to in subsection (1) shall be required for search under this subsection. (4) The authority seizing any record or property under sub-Section (1) or freezing any record or property under sub-Section (1A) shall, within a period of thirty days from such seizure or freezing, as the case may be, file an application, requesting for retention of such record or property seized under sub-Section (....
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....e of detention to the office of the Gazetted Officer, superior in rank to him, or the Magistrate's Court. (5) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge such person but otherwise shall direct that search be made. (6) Before making the search under sub-section (1) or sub-section (5) the authority shall call upon two or more persons to attend and witness the search, and the search shall be made in the presence of such persons. (7) The authority shall prepare a list of record or property seized in the course of the search and obtain the signatures of the witnesses on the list. (8) No female shall be searched by any one except a female. (9) The Authority shall record the statement of the person searched under sub-section (1) or sub-section (5) in respect of the records or proceeds of crime found or seized in the course of the search:18 [***] (10) The authority seizing any record or property under sub-section (1) shall, within a period of thirty days from such seizure, file an application requesting for retention of such reco....
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...., the records shall be returned to the person from whom such records were seized or whose records were ordered to be frozen unless the Adjudicating Authority permits retention or continuation of freezing of such records beyond the said period. (4) The Adjudicating Authority, before authorising the retention or continuation of freezing of such records beyond the period specified in sub-section (1), shall satisfy himself that the records are required for the purposes of adjudication under section 8. (5) After passing of an order of confiscation [or release under subsection (5) or sub-section (6) or sub-section (7) of section 8 or section 58B or sub-section (2A) of section 60] , the Adjudicating Authority shall direct the release of the records to the person from whom such records were seized. (6) Where an order releasing the records has been made by the Court [Adjudicating Authority under section (5) of section 21] the Director or any other officer authorised by him in this behalf may withhold the release of any such record for a period of ninety days from the date of (receipt of] such order, if he is of the opinion that such record is relevant for the appe....
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....a scheduled offence to an officer not below the rank of Additional Secretary to the Government of India or equivalent being head of the office or Ministry or Department or unit, as the case may be, or any other officer who may be authorised by the Central Government, by notification, for this purpose. 16. In the present case, no report against the appellants has been forwarded to the Magistrate. No complaint against the appellants was filed before a Magistrate. No cognizance of schedule offence was taken by any authority or Additional Secretary to the Government of India. 17. Under Section17(1) (A), it is the duty of the officer authorised if where it is found that it is not practicable to seize such property, can make such order that the person concerned shall not transfer or deal with the said property prior to the permission of the officer authorised. A copy of the said order shall be served upon the person concerned. Section 17, Sub-section (2) stipulates that after search and seizure, the authorised officer shall immediately forward a copy of the reason so recorded along with the material in his possession to the Adjudicating Authority in a sealed cover. 18. The....