2019 (6) TMI 129

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....aring RC No. BD1/2019/E/0001 dated 22.01.2019 u/s 120-B & 420 IPC and Section 7 & 13(2) r/w 13(1)(d) of the PC Act, 1988 registered by the CBI against M/s. Videocon International Electronics Ltd. & others (Name of the Appellant does not figure in the RC) 31.01.2019 ECIR No. ECIR/02/HIU/2019 under PMLA, 2002 recorded on 31.01.2019 pursuant to registration of the above mentioned FIR ( Copy of ECIR) not supplied to the Appellant). 01.03.2019 Search conducted by the Assistant Director, Directorate of Enforcement at the registered office of the Appellant on 01.03.2019. Various documents two files containing pages 1 to 578 and 1 to 46 respectively seized from the office of the appellant without even mentioning as to what these files are about and what papers/documents do these files contain. 28.03.2019 OA dated 28.03.2019 under Section 17(4) of PMLA related to the searches conducted at the premises of the appellant bearing OA No. 294/2019 filed by the Assistant Director, Directorate of Enforcement. Undated Adjudicating Authority passed the impugned undated order recording satisfaction in terms of Section 8(1) of PMLA, 2002. 10.04.2019 Pursuant to the above mention....

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....e record of order sheet entries to issue notice u/s 8(1) as well as to fix date for hearing and take other action u/s 8(2) and 8(3) shall be an order and they are appealable u/s 26(1) of PMLA. ii) All the actions u/s 8(1) to 8(3) are appealable under 26(1) of PMLA in addition to order of the Adjudicating Authority u/s 8(4) of PMLA. c) The above proposed legal implications will lead to multiple appeals against the retention order of the seizure/provisional attachment of assets, etc. passed by the Adjudicating Authority u/s 8(4) because according to petitioner appeal shall not only lie against the order passed by the Adjudicating Authority u/s 8(4) but against all the procedural acts by the Adjudicating Authority u/s 8(1) to 8(3) necessary to pass an order u/s 8(4). d) This further leads to another important question whether any act undertaken by the Adjudicating Authority u/s 8(1), 8(2) and 8(3) can legally be considered as order appealable u/s 26(1) even when the Adjudicating Authority can pass order only u/s 8(4). It is prayed that this Tribunal must decide the basic question before taking up the case for further orders. 5. Along with the written subm....

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..... 8. The other submission of the learned counsel for the appellants is that the appellants are not named as accused in the FIR/RC, copy of reasons to believe were not served, thus, even the seizure memo prepared at the time of search and seizure is contrary to Rule 3(3)(A) read with Rule 5 of the PMLA(Forms, Search & Seizure, Etc.) Rules, 2005 read with Section 65 of PMLA and Section 100 Cr. PC. 9. Mr. Rana admits that there are certain discrepancies while recording the reason to believe. He also admits thirty days notice was not given (as stipulated in section 8(1) of the Act). However, his submission is that the said discrepancies and defect can be cured under section 68 of PMLA and even time of 30 days can be given to the appellants to file reply which is main purpose of issuance of notice. 10. The learned counsel for the appellants has filed the written submission, Para-2 of the written submission reads as under: "a. An undated impugned order is passed by the Ld. Adjudicating Authority, in which order, the Ld. Adjudicating Authority has perused the Original Complaint and the Provisional Attachment Order, though the case is that of Original Application and Panc....

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....are referred - Arun Kumar Mishra - MANU/DE/0344/2014 ED vs. Md. Ghulam Ghouse & Ors. Adarsh Chaudhary - MANU/DE/1184/2002 Order of M/s. Balasore Alloys Ltd. UOI vs. Kunisetty Satya Narayna - MANU/SC/5137/2006 12. After hearing, the order was reserved. Let me now first deal with the objection of maintainability of appeal. 13. The provision of Section 26 of PMLA, 2002 reads as under:- "26. Appeals to Appellate Tribunal.- (1) Save as otherwise provided in sub-section (3), the Director or any person aggrieved by an order made by the Adjudicating Authority under this Act, may prefer an appeal to the Appellate Tribunal. (2) xxx xxx xxx (3) xxx xxx (4) On receipt of an appeal under sub-section (1), or sub-section (2), the Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against. (5) xxx xxx xxx (6) xxx xxx xxx‖ Section 26 of the Prevention of Money Laundering Act, 2002 clearly provides that an aggrieved person can prefer an Appeal before the ....

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....id Act reads as under: 29. Appeal.-There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later. The language used in Section 29 of the DV Act, no doubt, is similar to Section 26 of the PMLA, 2002. The Appellants place reliance on the judgments passed therein. a) The Hon'ble High Court of Delhi in Maya Devi v. State of N.C.T. of Delhi, 2007 SCC OnLine Del 1349 had held as under: 5. Section 29 of the Act provides for appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent. 6. When specific remedy by way of appeal or by way of alteration, modification or revocation of any order, has been provided under the Act, prima facie, the present petition under Article 227 of the Constitution of India, or section 482, Cr. P.C. is not maintainable before this Court. b) In Ajay Kant & Ors. Vs. Smt. Alka Sharma 2008 (1) JCC 174, it was held as under: 16. It is submitted that the judgment of the Hon'ble Hig....

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....ns will be decided on merit. 21. In the present appeals, having considered the nature of the seizure at present this tribunal is of the view that there is hardly any hardship if the objections raised by the appellants be decided by the Adjudicating Authority within time-bound manner. The Appellants inter-alia have challenged the validity of recording the reasons to believe, issuances of notice under Section 8(1) of the Act and seizure memos. 22. As far as objections raised by the appellants are concerned, no doubt, prima facie, there is some substance in the arguments of the counsel for the appellants. However, in my view, the same can be raised before the Adjudicating Authority who will have to consider and decide the same. It is clarified that objection and contention if raised by the appellants before the adjudicating authority and same are not decided as per law, the appellants have always remedy to challenge the same in appeal after the retention order under section 17(4) is passed. 23. With regards to other submission of the appellants that the discrepancies are so glaring, the same hearing officer may not be able to go against his own finding as the reason to believ....