TaxTMI 
TaxTMI 
2021 (1) TMI 975
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.....12.2016 against the petitioner before the XXXII Additional City Civil & Session Judge at Bangalore (Annexure-C); IV. Issue writ of certiorari and quash the Unnumbered Original Complaint in PAO No.2/2017 dated 26.01.2017 filed by the respondent - Enforcement Directorate before the Adjudicating Authority under the PML Act, 2002 (Annexure-D); and V. Issue writ of certiorari and quash the Provisional Attachment Order No.02/2017 dated 26.01.2017 passed by the respondent - Enforcement Directorate (Annexure-E). 2. Insofar as the order of taking cognizance is concerned, learned Senior Counsel appearing for petitioner Sri.A.S.Ponnanna, placing reliance on the decision of the Hon'ble Supreme Court in SUNIL BHARTI MITTAL Vs. CENTRAL BUREAU OF INVESTIGATION reported in (2015) 4 SCC 609 and the decision of the High Court of Telangana in Mr.BIBHU PRASAD ACHARYA vs. THE DIRECTORATE OF ENFORCEMENT, 2019 SCC OnLine TS 287, would submit that the cognizance order has been passed without application of mind. It is a bald order wherein the learned Special Judge has mechanically reproduced the provisions of law quoted by the respondent without even considering the allegations const....
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.... learned Senior Counsel that the attachment proceedings initiated against the petitioner as well as subsequent prosecution instituted against him are against the provisions of the PML Act and settled canons of justice. It is also contended that since the properties were acquired prior to the PML Act came into force, the same do not fall within the ambit of Section 2(v) of the PML Act. 5. Insofar as the provisional attachment order is concerned, the learned Senior Counsel pointed out that the order passed by the AdjudicatingAuthority does not meet the requirements of Section 5 of the PML Act. In the absence of there being any crime in existence, the Director/Deputy Director did not derive jurisdiction to attach the immovable properties which were acquired prior to coming into force of the PML Act. Further, in view of the closure of the criminal proceedings initiated by the CBI in RC 23(A)/2016 and there being no finding by any of the criminal courts to the effect that the properties found in possession of the petitioner were proceeds of the predicate crime, the provisional attachment order passed by the respondent and the subsequent confirmation thereof is illegal and cannot be s....
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....ment Directorate. Considered the submissions in the light of the pleadings and the documents produced by the parties. 8. The reliefs claimed in the petition relate to registration of ECIR/BGZO/13/2016 dated 03.12.2016; unnumbered original complaint in PAO.No.2/2017 dated26.01.2017, provisional order of attachment bearing No.02/2017 dated 26.01.2017, private complaint dated 31.01.2017 and order of taking cognizance and issuance of summons dated 06.02.2017. 9. Petitioner has challenged the above orders/proceedings on the supposition that without considering the fact that the properties in question were acquired much prior to the PML Act came into force, the petitioner is sought to be proceeded under the provisions of the PML Act. It is specifically contended that the properties mentioned in the table produced along with the complaint were acquired during the check period between 01.02.1985 to 18.12.2008 and therefore, therespondent has no jurisdiction over the subject property and therefore, the action initiated against the petitioner is without authority of law, inasmuch as, it is based on ex post facto penal laws which are not permissible under the scheme of the Constit....
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....Deputy Director authorized by the Director for the said purpose is entitled to make an order in writing, provisionally attaching such property for a period not exceeding 180 days when he has reason to believe (the reason for such belief to be recorded in writing), on the basis of material in his possession, that - (a)any person is in possession of any proceeds of crime; (b)such person has been charged of having committed a scheduled offence; and (c)such proceeds of crime are likely to be concealed, transferred to be dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime under this Chapter. 12. The petitioner does not dispute the authority of the Deputy Director to pass the impugned provisional order of attachment. The constitutional validity of the above provision is also not under challenge. The said order as well as the records indicate that a report has been forwarded to the Magistrate under section 173 of Cr.P.C. in relation to the scheduled offences i.e., under section 13(1)(e) read with 13(2) of the PC Act on 28.02.2013. The order reflects the application of mind and also the el....
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....is order, apart from being bald and unreasoned, does not disclose application of mind to the facts of the case nor does it indicate the offences in respect of which the cognizance is taken by learned Presiding Officer. 15. A reading of the complaint (Annexure-A) indicates that it was filed under section 45(1), 3 and 4 of the PML Act. It is alleged therein that accused Nos.1 to 4 have committed offence under section 3 of the PML Act and liable to be punished under section 4 of the PML Act. But the impugned order does not reveal as to the offences for which the accused have been summoned to appear before the court. In this context, it may be apt to refer to the observations of the Apex Court in the Case Sunil Bharti Mittal vs. CBI in (2015) 4 SCC 609. "48. Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he d....