TaxTMI 
TaxTMI 
2017 (7) TMI 1377
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.... bank accounts without any hindrance. (c) Pending admission, final hearing and disposal of this petition, stay the action of freezing the accounts of the petitioner and his family members as per details given at Annexure)B and allow the petitioner and his family members to operate the bank accounts. (d) Pending admission, final hearing and disposal of this petition, to allow the petitioner and his family members to operate bank accounts mentioned in an application dated 28.03.2017 at Annexure-D (e) To dispense with the filing of the affidavit as the petitioner is in judicial custody. (f) To pass any other and further orders as may be deemed fit and proper." 2. The facts giving rise to this writ application may be summarized as under; 2.1 The CBI/ACB, Gandhinagar registered an FIR No. RC0292016A0016 dated 20th December, 2016 against the writ applicant herein and his family members including one Shri Pankaj Bhatt, Senior Manager, Surat People's Cooperative Bank, Udhna and other unknown public servants for the offence punishable under sections 120B, 419, 420, 468 and 471 of the Indian Penal Code and section 13(1)(d) read with section 13(2) of the Prevention of Corruption....
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....of the PMLA, 2002. The complaint has been registered as PMLA Special Case No. 5 of 2017. In the complaint, the following findings of investigation have been stated; "FINDINGS OF INVESTIGATION 38. Based on the scrutiny of the FIR, various bank records, bank statements, documents called from Banks and statements of various persons recorded under PMLA has revealed the following: 38.1 The CBI/ACB, Gandhinagar registered an FIR No. RC0292016A0016 on 20.12.2016 against Shri Kishorebhai Mangaljibhai Bhajiawala, Shri Jignesh Kishorebhai Bhajiawala, Shri Vilas Kishorebhai Bhajiawala, Shri Pankaj Bhatt, Senior Manager, Surat People's Co-operative Bank, Udhna, unknown public servants and unknown persons, invoking Sections 120-B, 419, 420, 468 and 471 of Indian Penal Code, 1860 and Section 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act. The FIR was registered on the basis of a complaint filed by Sh. Piyush Kumar Singh Yadav, Deputy Director, Income Tax (investigation), Surat, alleging that the accused had converted a huge amount of their unaccounted money, post demonetization scheme (announced on 08.11.2016) into New High Denomination currency and other valuables through ....
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.....4 Shri Jignesh Bhajiawala has derived the proceeds of crime in the form of new high denomination currency, amounting to Rs. 1,02,16,000/-, post demonetization, by forging thousands of Exchange forms in names of various persons as follows: i. Rs. 7,00,000/- in new currency was acquired from Shri Pankaj Bhatt, the then Senior Manager, Surat Peoples Cooperative Bank Ltd., Udhna branch, Surat. ii. Rs. 11,96,000/- in new currency was acquired from Shri Pankaj Bhatnagar, Chief Manager, Bank of Baroda, Bhatar Branch, Surat. iii. Rs. 1,88,000/- in new currency was acquired from Shri Kishore Mel, the then Senior Manager, Peoples Cooperative Bank Ltd., Ring Road branch, Surat. iv. 81,32,000/- were acquired from various other sources including banks. 38.5 Further investigation of the Directorate revealed that accused Sh. Jignesh Bhajiawala has mis-used the IDS of genuine account holders of Surat Peoples Co.op. Bank Ltd., Udhna, Surat without their knowledge for the purpose of Money laundering and has illegally acquired the amount of Rs. 1,02,16,000/- which are nothing but "proceeds of Crime". 38.6 The said amount acquired illegally by the accused was parked in the Benami Bank loc....
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....the FIR has been filed are yet to be examined and money trial of balance proceeds of crime as well as investments made by the accused in properties derived out of Proceeds of Crime, and their Bank Accounts are under investigation and are being examined. " 2.6 It appears that by a communication dated 29th March, 2017, the Enforcement Directorate informed the father of the writ applicant that the request to de-freeze the bank accounts had been rejected as the matter was under investigation under the provisions of the PMLA, 2002. The letter reads as under; "To, Shri Kishorebhai Mangaljibhai Bhajiyawala Kamal 40-41, Gayatri Nagar Society-I Udhanagam, Surat Sub: Availing benefit under Pradhan Mantri Garib Kalyan Yojna - reg. Kindly refer to your letter dated 28/03/2017 in the subject matter. It is to inform that a case of money laundering has been registered under the provisions of Prevention of Money Laundering Act, 2002 against you and your sons Mr. Jignesh Bhajiyawala and Mr. Vilas Bhajiyawala in December 2016. Mr. Jignesh Bhajiyawala was arrested on the charges of Money Laundering on 19/01/2017 and is in judicial custody till date and prosecution complaint has been fi....
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....1 deals with retention of records and Section 22 deals with presumption as to records for property in certain cases. In other words, Chapter V of the PMLA deals with exhaustive procedure and powers to be exercised by the officers of the respondent No. 2 for search, seizure etc. while investigating the offence under the PMLA. (E) Over and above Chapter V, Chapter Ill of the PMLA also deals with the Attachment, Adjudication and Confiscation i.e. Section 5 deals with the attachment of property involved in money laundering and Section 8 deals with the adjudication, whereas section 10 deals with the management of the properties confiscated under Chapter-III of the PMLA. (F) In other words, the PMLA is complete code and has provisions to deal with for search, seizure, retention attached property and confiscation. Therefore, the officer of the respondent No. 2 is required to exercise their power within the four corners of the PMLA and they cannot travel beyond the powers conferred under the PMLA under the shelter of Section 65 of the PMLA and exercise powers under Section 102 of the Code of Criminal Procedure, 1973. (G) That Section 17 of the PMLA authorizes the officers to seize or....
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....Criminal Procedure, 1973 neither there is limitation nor seizing or freezing is required to be regularized or authorized by any higher authorities. (J) Even otherwise the investigation with respect to the petitioner is over and the Criminal Complaint is filed on 16/03/2017 and therefore also the accounts freezed by the officers of the respondent No. 2 are required to be de-freezed and the communication/order dated 29/03/2017 is required to be quashed and set aside. (K) Even otherwise the officers of the respondent No. 2 have not obtained any orders under sub-section 4 of section 17 of the PMLA of the adjudicating authority for continuation of the order of freezing of the bank accounts of the petitioner and therefore also, the freezing of the petitioner and his family members' accounts be de-freezed. (L) That the allegation proceeds of crime of Rs. 1,02,16,000/- is not only seized by the income Tax Department but also is attached by the respondent No. 2 by the provisional attachment order No. 1 of 2017 dated 09/02/2017 and for confirmation of the provisional attachment, Original Complaint No. 705 of 2017 is filed before the Hon'ble Adjudicating Authority, New Delhi. ....
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....be held to possess an enabling and/or incidental power to request a reporting entity, namely, a banking company to temporarily prohibit withdrawal from the accounts of an accused who is being investigated into under the Act. 5. Mr. Vyas, the learned Assistant Solicitor General of India, in such circumstances, prays that there being no merit in this writ application, the same be rejected. 6. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the writ applicant is entitled to the relief as prayed for in this writ application. 7. I had an occasion in the case of Paresha G. Shah v. State of Gujarat & Ors., Special Criminal Application No. 150 of 2015, decided on 15th June, 2015 to consider the provisions of the PMLA, 2002. In the said judgment, the following questions were raised; "(i) Whether the respondent No. 2 was justified in invoking Section 102 of the Code for the purpose of freezing the savings account of the petitioner maintained with the ICICI Bank; (ii) Whether the recourse can be taken to the provisions of Section 102 of the Code by virtue of Section 65....
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....ctor or by an authority authorised by the Central Government under this Act for the collection of evidence. Section 2(u) defines the term proceeds of crime as under: proceeds of crime means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property. Section 2(v) defines the term property as under : property means any property or assets of every description, whether corporeal or incorporeal, movable or immovable, tangible or intangible and includes deeds and instruments evidencing title to, or interest in, such property or assets, wherever located. Section 3 defines money laundering to mean the indulgence or involvement in any process or activity connected with the proceeds of crime, provided the person so indulging or involving projects it as untainted property. Therefore, it is clear that the stress is on two things viz., (i) proceeds of crime and (ii) scheduled offence. It is necessary to take a look at Sections 5 and 8 of the PMLA in entirety. Therefore, they are extracted as follows : 5. Attachment of property involved in money laundering.-- (1) Where ....
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....for such period as may be prescribed. (3) Every order of attachment made under subsection (1) shall cease to have effect after the expiry of the period specified in that sub-section or on the date of an order made under sub-section (2) of Section 8, whichever is earlier. (4) Nothing in this Section shall prevent the person interested in the enjoyment of the immovable property attached under sub-section (1) from such enjoyment. Explanation.--For the purposes of this sub-section, "person interested" in relation to any immovable property, includes all persons claiming or entitled to claim any interest in the property. (5) The Director or any other Officer who provisionally attaches any property under subsection (1) shall, within a period of thirty days from such attachment, file a complaint stating the facts of such attachment before the Adjudicating Authority. 8. Adjudication.--(1) On receipt of a complaint under sub-section (5) of section 5, or applications made under sub-section (4) of Section 17 or under subsection (10) of Section 18, if the Adjudicating Authority has reason to believe that any person has committed an offence under Section 3 or is in possession of procee....
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....tor or any other Officer authorised by him in this behalf shall forthwith take the possession of the attached property. (5) Where on conclusion of a trial or any scheduled offence, the person concerned is acquitted, the attachment of the property or retention of the seized property or record under sub-section (3) and net income, if any, shall cease to have effect. (6) Where the attachment of any property or retention of the seized property or record becomes final under clause (b) of sub-section (3), the Adjudicating Authority shall, after giving an opportunity to the person concerned, make an order confiscating such property." Section 5(1) authorises the Director or any other Officer, not below the rank of the Deputy Director, to pass an order provisionally attaching a property for a period not exceeding 150 days. The manner in which and the conditions subject to which the order is to be passed are also indicated in Section 5(1) itself. in so far as the manner in which a provisional attachment order is to be passed, Section 5(1) makes a reference to the Second Schedule to the Income Tax Act, 1961, in so far as the conditions are concerned, Section 5(1) stipulates that the con....
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....r "confirming the provisional attachment" if he decides under sub-section (2) that the property is involved in money laundering. While ordering confirmation of attachment under subsection (3), the Adjudicating Authority shall also pass an order to the effect (i) that the attachment shall continue during the pendency of the proceedings relating to any scheduled offence before a Court; and (ii) that the attachment shall become final after the guilt of the person is proved in the trial Court and the order of such trial Court becomes final. A careful reading of Sections 5(1), 5(2), 8(2) and 8(3) would show that an order of attachment passes through three different stages. They are (i) provisional order under Section 5(1), (ii) confirmation of the provisional order under Section 8(3) and (iii) finality to the order of attachment under Clause (b) of sub-section (3) of Section 8. In other words, a provisional order of attachment is passed by the Director under Section 5(1). This is the first stage. The Director then files a complaint before the Adjudicating Authority, which holds an enquiry and passes an order of confirmation of attachment under subsection (3) of Section 8. This is the ....
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....ions of the Code, but subject to any enactment for the time being in force regulating the manner of place of investigation, inquiring into, trying or otherwise dealing with such offences. Section 5 of the Code further provides that nothing contained in the Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special form of procedure prescribed, by any other law for the time being in force. In harmony with the said provisions, Section 65 of the PMLA declares that the provisions of the Code shall apply, in so far as they are not inconsistent with the provisions of the PMLA, to arrest, searches and seizures, attachment, confiscation, investigations, prosecutions and all other proceedings under the PMLA. The principal argument of the learned counsel appearing for the petitioner is that by virtue of the second proviso to Section 5 of the PMLA, the authority could have passed an order of provisional attachment of the bank account of the petitioner and should not have taken recourse of Section 102 of the Code for the purpose of freezing the bank account. I am not impressed by such submission of the learn....
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....thority with the power to preserve a property suspected to have been used in the commission of the offence in any manner. The property, therefore, requires to be protected from dissemination, depletion or destruction by any mode. Consequently, under the guise of being given information about the said action, no accused, not even a third party, can overreach the law under the umbrella of a sublime provision meant to protect the innocent and preserve his property. It is also not necessary at all that a person must be told that his bank account, which is suspected of having been used in the commission of an offence by himself or even by another, is being frozen to allow him to have it closed or to have its proceeds withdrawn or transferred upon such notice. In the aforesaid context, I may quote with profit a decision of the Supreme Court in the case of State of Maharashtra v. Tapas D. Neogy, (1999)7 SCC 685. The issue before the Supreme Court was, whether a police officer investigating into an offence can issue prohibitory order in respect of a bank account of the accused in exercise of powers under Section 102 of the Code. The Supreme Court, after an exhaustive consideration of the....
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.... v. Commissioner of Police, reported in 988 Criminal Law Journal(Vol. 94) 241, a Division Bench of Delhi High Court examined the question whether bank account can be held to be 'property' within the meaning of Section 102 of the Cr.P.C. In the said case, proceeds realised by sale of official secrets were deposited by the accused in his wife's account. The Court in that case came to hold that it is not quite sure whether monies deposited in a bank account can be seized by means of a prohibitory order under the provisions of Section 102 but even assuming that a bank account is a 'property' within the meaning of Section 102 of the Code of Criminal Procedure, the further consideration must be satisfied namely the property has been found under circumstances which create the suspicion of the commission of an offence. But in that case it is not the discovery of the property that has created suspicion of commission of an offence but on the other hand the discovery of the bank account is a sequel to the discovery of commission of offence inasmuch as the police suspected that some of the proceeds realised by the sale of the official secrets have been passed on to the bank....
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....r or the accused from operating the bank account. 8. In P.K. Parmar and ors. v. Union of India and anr., 1992 Criminal Law Journal 2499 (Vol. 98), a learned Single Judge of Delhi High Court considered the power of police officer under Section 102 of the Criminal Procedure Code, in connection with the fraudulent acquisition of properties and opening of fictitious bank accounts and withdrawal of huge amounts as subsidy from Government by producing bogus documents by the accused. The learned Judge took note of the earlier decision of Delhi High Court in Ms. Swaran Sabharwal v. Commissioner of Police, 1988 Criminal Law Journal 240 (Vol. 94), and analysed the provisions of Section 102 of the Criminal Procedure Code and the facts of the case were as under. It was revealed that during investigation the prosecution came to know that without actually manufacturing phosphate and fertilizers, the accused withdrew as much as Rs. 3.39 crores as subsidy from the Govt. of India by producing bogus documents. The Court ultimately came to the conclusion that the recovery of assets in the bank links prima facie with the commission of various offences with which they have been charged by the CBI and....
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....would include destruction of the property, confiscation of the property or delivery of the property to any person claiming to be entitled to possession thereto. It cannot be contended that the concept of restitution of property to the victim of a crime, is totally alien to the Criminal Procedure Code. No doubt, the primary object of prosecution is punitive. However, Criminal Procedure Code, does contain several provisions, which seek to reimburse or compensate victims of crime, or bring about restoration of property or its restitution. As S. 452, Crl. P.C. itself indicates, one of the modes of disposing of property at the conclusion of the trial, is ordering their return to the person entitled to possession thereto. Even interim custody of property under Ss. 451 and 457, Crl.P.C., recognises the rights of the person entitled to the possession of the properties. An innocent purchaser for value is sought to be reimbursed by S. 453, Crl.P.C. Restoration of immovable property under certain circumstances, is dealt with under S. 456, Crl.P.C. Even, monetary compensation to victims of crime or any bona fide purchaser of property, is provided for under S. 357, Crl.P.C. Wherein when a Court....
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....ately held in the trial to be the outcome of the illegal gratification, could be withdrawn by the accused and the Courts would be powerless to get the said money which has any direct link with the commission of the offence committed by the accused as a public officer. We are, therefore, persuaded to take the view that the bank account of the accused or any of his relation is 'property' within the meaning of Section 102 of the Criminal Procedure Code and a police officer in course of investigation can seize or prohibit the operation of the said account if such assets have direct links with the commission of the offence for which the police officer is investigating into. The contrary view expressed by Karnataka, Gauhati and Allahabad High Courts, does not represent the correct law. It may also be seen that under the Prevention of Corruption Act, 1988, in the matter of imposition of fine under sub-section (2) of Section 13, the legislatures have provided that the Courts in fixing the amount of fine shall take into consideration the amount or the value of the property, which the accused person has obtained by committing the offence or where the conviction is for an offence refe....
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....el to the discovery of the commission of offence, for which a complaint has also been lodged and so far as the other accused are concerned, there has been a provisional order of attachment of their properties under Section 5 of the PMLA. I am afraid, I am unable to accept the submission of the learned counsel appearing for the petitioner in this regard. The Supreme Court in one of its recent pronouncements in the case of M.T. Enrica Lexie and another v. Doramma and others, (2012)6 SCC 760, has observed in para 14 as under : The police officer in course of investigation can seize any property under Section 102 if such property is alleged to be stolen or is suspected to be stolen or is the object of the crime under investigation or has direct link with the commission of offence for which the police officer is investigating into. A property not suspected of commission of the offence which is being investigated into by the police officer cannot be seized. Under Section 102 of the Code, the police officer can seize such property which is covered by Section 102(1) and no other. "Reason to believe" is a much stronger expression than the word "suspect". In Corpus Juris Secundum Vol....
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....n with a view to see that the proceeds of crime are not further transferred, then that will lead to a situation of absurdity. Therefore, although the discovery of the bank account of the petitioner may be a sequel to the commission of the offence by the persons against whom the complaint is lodged, yet if the proceeds of crime are suspected to have been transferred in the account of someone else, then it will be within the powers of the authority under the PMLA to freeze/attach such bank account initially in exercise of powers under Section 102 of the Code read with Section 65 of the PMLA. The decision of the Supreme Court in the case of Tapas D. Neogy (supra), wherein the Supreme Court has discussed a Division Bench decision of the Delhi High Court in the case of Swaran Sabharwal (supra), should be considered keeping in mind the object of the PMLA. In the case of Tapas D. Neogy (supra), the charge against the accused was one for the offence under the Indian Penal Code and powers under Section 102 of the Code were exercised for the purpose of attaching the bank account of the accused and his relatives as it was found that illegal gratification obtained was deposited in the bank a....
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....so to Section 5. In view of second proviso, proceedings can be initiated under Section 5 even in absence of compliance of first proviso. Various safeguards impose fetters upon the attaching officer obliging him to immediately send the order made by him and the factum of attachment of the property made by him within the prescribed period to the Adjudicating Authority to enable it to adjudicate upon such attachment. It is pertinent to note that the legislative intent insofar as powers of the Adjudicating Authority are concerned, is made clear under Section 6(15) by clarifying that it is not bound by the procedure laid down by the Code of Civil Procedure. Thus, if the Adjudicating Authority was intended to be an authority dealing with the criminal acts, the proviso dispensing with Code of Civil Procedure would not have been made. Instead proviso dispensing with Cr.P.C. would have been made. These facts thus indicate that the Adjudicating Authority under Section 8 is authorized to undertake civil proceedings and adjudicate thereupon as rightly argued by the learned counsel for the respondents. 32. True that the first proviso to Section 5(1) and Section 17(1) requiring the compliance ....
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....ies prior to issuance of the provisional attachment order under section 5 of the Act. As such, it has to be issued with abundant caution. It is therefore necessary that the requisite information/details are ascertained from the repositories of such information. Such repositories may be required during preliminary enquiry/investigation under the Act to be restrained from allowing normal operations in respect of a property suspected to be involved in the offence of money laundering. It is therefore, crucial to achieve the objectives of the Act that the authorities under PML Act are empowered to collect and if need be, compel disclosure of relevant facts including specific details of the suspected properties, movable or immovable, liable to be attached in the course of investigation. The challenge mounted by the petitioners on such powers of the authorities is therefore, erroneous. The term investigation as defined in section 2 (na) of PML Act has to be read in consonance with the provisions of section 65 which empowers the authorities under PML Act to issue such directions/prohibitory orders. Therefore, any such direction issued in the course of investigation is within the four walls....
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....21 of 2010 Date of judgment 12.04.2010 the Hon'ble Supreme Court has observed that : .... The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up. 10. ***** 35. True that the said FFR Software Private Limited (supra) deals with the case pursuant to registration of the FIR. In the instant case also, two FIRs though not naming the petitioners but on the same subject have been lodged and thus legal proposition as discussed in the aforementioned authority can as well be applied to the facts of the present case. The contention of the learned counsel for the petitioners ....
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....powers under Section 102 of the Code read with Section 65 of the PMLA should not continue or remain in operation for an indefinite period of time. Section 5(4) of the PMLA provides for the enjoyment of the immovable property. Section 5(4) reads as under : 5. Attachment of property involved in money-laundering.- 1. to 3. xxx xxx xxx 4. Nothing in this section shall prevent the person interested in the enjoyment of the immovable property attached under sub-section (1) from such enjoyment. Explanation.- For the purposes of this sub-section, person interested in relation to any immovable property, includes all persons claiming or entitled to claim any interest in the property. Sub-section (4) of Section 5 provides that passing of the order of the provisional attachment under the Section shall not prevent the person interested in the enjoyment of the immovable property attached under sub-section (1) from such enjoyment. The term person interested in relation to any immovable property is explained to include all persons claiming or entitled to claim any interest in the property. The Section intends that merely because the immovable property is provisionally attached, the pers....
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....hat may be passed by the adjudicating authority, whereas if an order of attachment is passed under Section 102 of the Code read with Section 65 of the PMLA, then there is no time period prescribed so far as its operation is concerned. Such a situation should not crop up. In light of the statement made by the learned Assistant Solicitor General of India, I do not want to go further into the matter. However, I make it clear that if the provisional order of attachment under Section 5 of the PMLA is not passed within a period of one week from today, then the instructions given by the Department to the bank for freezing of the account shall automatically come to an end and the bank shall permit the petitioner thereafter to operate her account. The final conclusions in the matter are as under : i. The question No. 1 is answered in the affirmative. ii. The question No. 2 is answered in the affirmative. iii. The question No. 3 is answered in the negative. iv. The question No. 4 is answered in the affirmative. v. The order of attachment of a bank account in exercise of the powers under Section 102 of the Code read with Section 65 of the PMLA cannot continue for an indefinite p....
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....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 offence, as the case may be, or in cases where such report is not required to be forwarded, a similar report of information received or otherwise has been submitted by an officer authorised to investigate 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.] [(1A) Where it is not practicable to seize such record or property, the officer authorised under sub-section (1), may make an order to freeze such property whereupon the property shall not be transferred or otherwise dealt with, except with the prior permission of the officer making such order, and a copy of such order shall be served on the person concerned: Provided that i....
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....02. Mr. Vyas replied that ordinarily, in all cases of search, seizure and freezing of the accounts, a request is made by the authority concerned before the adjudicating authority to continue the order of freezing beyond the period of 30 days. Mr. Vyas still maintains that it is section 102 of the Cr.P.C which would apply so far as the power of freezing is concerned and not section 17(4) of the PMLA, 2002. To this extent, I am unable to agree with Mr. Vyas. Section 17(4) of the PMLA, 2002 is very specific and it casts an obligation upon the authority to make a request, within a period of 30 days from freezing, to continue the order of freezing served under sub-section (1A) before the adjudicating authority. 14. Mr. Vyas, the learned Assistant Solicitor General of India, could not produce any materials for the purpose of showing compliance of section 17(4) of the PMLA, 2002. 15. The contention of Mr. Pandya, the learned counsel appearing for the writ applicant is that once section 17(4) of the PMLA, 2002 is shown to have been not complied with, the freezing could be said to have, by deeming fiction, lapsed and this Court may declare that the accounts cannot be said to be freezed as....
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.... that the property of accused in the form of cash balance in Bank account, Fixed Deposits, Investment in LIC policies, totally amounting to Rs. 3,72,66,630/- as mentioned in the schedule of properties herein below, is provisionally attached under sub section (1) of Section 5 of Prevention of Money Laundering Act, 2002, for a period of 180 days from the date of this order. I further order that you shall not remove, part with or otherwise deal with such property without my prior permission." 18. Once a provisional attachment order is passed, the provisions of section 8 of the PMLA, 2002 would come into play. Section 8 of the PMLA reads as under; "8 Adjudication. - (1) On receipt of a complaint under sub-section (5) of section 5, or applications made under sub-section (4) of section 17 or under sub-section (10) of section 18, if the Adjudicating Authority has reason to believe that any person has committed an [offence under section 3 or is in possession of proceeds of crime], he may serve a notice of not less than thirty days on such person calling upon him to indicate the sources of his income, earning or assets, out of which or by means of which he has acquired the property att....
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.... 5 has been confirmed under sub-section (3), the Director or any other officer authorised by him in this behalf shall forthwith take the [possession of the property attached under section 5 or frozen under sub-section (1A) of section 17, in such manner, as may be prescribed. (5) Where on conclusion of a trial of an offence under this Act, the Special Court finds that the offence of money-laundering has been committed, it shall order that such property involved in the money-laundering or which has been used for commission of the offence of money-laundering shall stand confiscated to the Central Government]. [6] Where on conclusion of a trial under this Act, the Special Court finds that the offence of money-laundering has not taken place or the property is not involved in money-laundering, it shall order release of such property to the person entitled to receive it. (7) Where the trial under this Act cannot be conducted by reason of the death of the accused or the accused being declared a proclaimed offender or for any other reason or having commenced but could not be concluded, the Special Court shall, on an application moved by the Director or a person claiming to be entitled....
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....ad evidence and furnish any other information in his possession to justify the legitimate means of acquiring the properties in dispute. It is only after taking all the submissions of the accused and documents brought on record to establish the sources of his property so attached that the adjudicating authority takes a final decision on the same. 22. Any person aggrieved by an order made by the Adjudicating Authority under Section 8 of PMLA can avail the remedy of appeal under Section 26 of PMLA to the Appellate Tribunal, whereby again the accused person is given an ample amount of opportunity of being heard, before any orders are passed. It is only when a person is aggrieved by the decision or order of the Appellate Tribunal that he may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal to him. The remedy of appeal under Section 42 of PMLA is in the nature of second appeal. 23. It will be open for the writ applicant to raise all the contentions available to him before the adjudicating authority as regards the freezing of the accounts including, prima facie, non-compliance of section 17(4) of the PML....
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....rwarded 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 offence, as the case may be, or in cases where such report is not required to be forwarded, a similar report of information received or otherwise has been submitted by an officer authorised to investigate 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.] [(1A) Where it is not practicable to seize such record or property, the officer authorised under sub- section (1), may make an order to freeze such property whereupon the property shall not be transferred or otherwise dealt with, except with the prior permission of the officer making such order, and a copy of such order shall be served on the person concerned: Provided that if, at any time before its confiscation....