TaxTMI 
TaxTMI 
2021 (6) TMI 1044
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....appellants were attached. However, no such action was taken against 98 similarly situated plot holders which amounts to hostile discrimination with appellants. As a consequence of attachment of their property, the appellants are deprived to enjoy their property which hits Article 300 A of the constitution. 3. Shri R.S. Chhabra, learned counsel for appellants urged that the plots in question were not purchased by using proceeds of crime and, therefore, the provisions of The Prevention of Money Laundering Act, 2002 (for short "PML Act") are not applicable to them. Sec.8 can be made applicable only against the person against whom complaint has been made u/S.5(5) or an application has been preferred u/S.17(4) or 18(10) of the said Act whereas no such complaint or application was preferred by anybody. In this backdrop, alternative remedy was not an absolute bar for the appellants. 4. By taking this Court to the pleadings of writ petition (para 5.7), it is urged that learned Single Judge has erred in holding that there was no pleading regarding those 98 plots for which sale deeds have been executed, but no action has been taken in relation to said plots. Lastly, it is submitted that S....
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....by him for the purposes of this section, 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; and (b) such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime under this Chapter, he may, by order in writing, provisionally attach such property for a period not exceeding one hundred and eighty days from the date of the order, in such manner as may be prescribed. (Emphasis supplied) Section 5(5) of the PML Act, 2002 makes it clear that order of attachment of competent authority shall be provisional in nature and said authority is under a statutory obligation to file a complaint before the adjudicating authority within 30 days from the date of attachment. 10. Section 8(1) of the PML Act, 2002 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 Aut....
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.... interpreted when we know why it was enacted [see : (1987) 1 SCC 424 (RBI v/s Peerless General Finance & Investment Co. Ltd.)]. Adopting the principle of literal construction of the statute alone, in all circumstances without examining the context and scheme of the statute, may not subserve the purpose of the statute. In the words of V.R. Krishna Iyer, J., such an approach would be "to see the skin and miss the soul". Whereas, "The judicial key to construction is the composite perception of the deha and dehi of the provision." [see : (1977) 2 SCC 256 (Board of Mining Examination v/s Ramjee)]. 13. Thus, Sections 5 and 8 needs to be understood and interpreted as per intention and scheme of the PML Act, 2002. The Act provides three tiers of redressal mechanism. The order passed in exercise of power conferred under Section 5(1) of the PML Act, 2002 needs to be confirmed by the adjudicating authority. In that event, a further appeal is provided before the Appellate Tribunal. Section 49 provides further appeal to the High Court. We find support in our view in : (2015) SCC OnLine Delhi 7625 (Rai Foundation v/s The Director, Directorate of Enforcement & Others)]. Relevant portion reads t....
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....uthority which is vested with quasi judicial powers. As noted above the complaint under Section 5(5) of the PMLA by the enforcement officer comes before the adjudicating authority for "confirmation" of the attachment order." (Emphasis supplied) 14. Shri R.S. Chhabra, learned counsel for the appellants placed reliance on the judgment of Supreme Court in Jyoti Prasad and Mohd. Aslam Merchant (supra). In these judgments, the Court has interpreted the provisions of different statutes namely Indian Penal Code (I.P.C.) and Narcotic Drugs and Psychotropic Substances Act, 1985. In those cases, the impugned order / action was not founded upon any action which was provisional in nature, whereas in the instant case, the order of attachment is 'provisional' in nature, validity of which shall be examined by the adjudicating authority. Hence said judgments are of no assistance to the appellants. 15. The matter may be viewed from another angle. The Prohibition of Benami Property Transactions of 1988 (Act of 1988) u/S.24(3) provides power of provisional attachment. The said provisional attachment needs to be confirmed by the "adjudicating authority" u/S. 26 of the said Act. In WP No.10....