TaxTMI 
TaxTMI 
2019 (7) TMI 961
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....nd section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 were committed during the period of 2007-2008. The present ECIR "proceeds of crime" alleged that the proceed of crime may have been generated during the commission of said offence. 3. After seizure of gold and jewellery and documents, the application was filed by the Assistant Director, Directorate of Enforcement, Chandigarh under Section 17(4) of the Prevention Money Laundering Act, 2002(PMLA) being OA No. 63 of 2016, inter alia, seeking retention of documents/articles seized on 23.11.2016 in the case of Appellant No.1. 4. The allegations in the application is on the basis on which the Enforcement Case Information Report No. ECIR/03/CDZO/2014 dated 29.12.2014 (herein after referred to as "the ECIR") was registered on the basis of a FIR No.RC2192014E 0002 dated 26.03.2014. The allegations made against the appellants in FIR are that on 12.01.2007 an application is made by the Appellant No.1 seeking allocation of coal block and after several rounds of disqualifications of various applicants for allocation of coal blocks, the Appellant No.1 Company was qualified and was initially recommended alloca....
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....ittee-21.6.2007; (d) Letter from Ministry of Coal seeking consent for joint allocation of Coal Block to the Petitioner 1 and SKS- 6.11.2007; (e ) Final Allotment of Fatehpur Coal Block- 6.2.2008. (f) Sale of Shares of Petitioner. 1- 3.3.2008. 10. It is submitted on behalf of the appellant that each and every act and transaction which is alleged to have constituted the predicate scheduled offence is prior to 1.6.2009, when The Prevention of Money Laundering (Amendment) Act, 2009 came into effect. It is by such amendment that Sections 420 and 120 B of the Indian Penal Code were made part of scheduled offences notified under The Prevention of Money Laundering Act, 2002. They are also prior to 15.2.2013, when The Prevention of Money Laundering (Amendment) Act, 2013 came into effect. It is by such amendment that Section 13 of The Prevention of Corruption Act, 1988 was made part of scheduled offences notified order The Prevention of Money- Laundering Act, 2002. 11. The Adjudicating Authority has come to the conclusion that the Adjudicating Authority is only concerned with the permission for retention of these seized items at the stage of passing of the order of freezing. 12. On ....
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....n a period of eight weeks from today. 5. In the event, respondent no.2 takes any further action, the petitioner is at liberty to apply. 6. The petition is disposed of in the aforesaid terms. The pending application stands disposed of. 7. Order dasti under signatures of the Court Master. VIBHU BAKHRU, J November 12, 2018/MK" 13. 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 and search any building, place, vessel, vehicle or aircraft where he has reason to suspect that such records or proc....
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.... 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 sub-section (1) shall be required for search under this sub-section. (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 (1) or for continuation of the order of freezing served under sub- Section (1A), before the Adjudicating Authority.]. 14. Section 18 of PMLA, 2002 reads as under: "18. Search of persons. - (1)....
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....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 subsection (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 record or property, before the Adjudicating Authority. 15. 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 ....
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....nd 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 sub-section (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 appeal proceedings under this Act. ] 17. It is settled law that a particular thing is to be done in a particular manner, it must be done in that way and none other. Reliance in this regard is also placed on a judgements of Hon‟ble Supreme Court in the cases of Dipak Babaria and another vs. State of Gujarat 2014 (3) SCC 502 and J. Jayalalitha & Anr vs State of Karnataka & Or....
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....gainst the appellant was filed before a Magistrate. No cognizance of schedule offence was taken by any authority or Additional Secretary to the Government of India. 20. From the entire gamut of matter, the following peculiar and circumstances emerges: - (a) ECIR was registered on the basis of FIR, the closure report has been filed CBI who stated that no case is made out and it was registered mistake of fact. (b) The said closure is yet to considered by the Special Court. (c ) No reasons to believe were produced. The seizure were made on the basis of apprehension and presumption. (d) No business has been carried out on the basis of coal blocks. (e ) The jewelleries, coins, gold and papers were seized. As far as papers are concerned, the appellants are entitled to obtained the copies if so essential under the provision of sub-section 2 of Section 21 of the Act. 21. The only reason given in the impugned order for the purpose of retention of the jewellery and copies of documents was that the shares value of the company may rise, therefore, it is a matter of investigation. 22. It was admitted in the impugned order that the gold jewellery may not be in any way related to the....