TaxTMI 
TaxTMI 
2022 (10) TMI 1081
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....17/1391 and ECIR/05/GWZO/2017/1392, as well as the Provisional Attachment Order No. 03/2018 dated 28.09.2018 passed therein as well as the proceedings initiated and pending vide OC-1046/2018 and the Order dated 09.11.2018 passed therein. II. Directing the Respondent Nos. 1, 2, 3 and 4 to immediately defreeze all the bank accounts mentioned under Scheduled of Properties in the Provisional Attachment order No. 03/2018 dated 28.09.2018 and by rescinding the Provisional Attachment Order dated 28.09.2018 and the Order dated 09.11.2018 passed in OC-1046/2018. 3. The immediate facts prior to initiation of the proceeding under challenge can be summarized as follows:- I. On the basis of an FIR lodged by the Joint Secretary to the Government of Meghalaya, Forest and Environment Department, a Case No. 3(11)/2012 was registered by the CID, Meghalaya against the petitioner Nos. 2, 3 and 4, under Sections 120(B)/423/468 IPC read with Section 13(1)(c) of PC Act. II. Pursuant to an investigation, the CID, Meghalaya filed charge sheet being charge sheet No. 2/2017 dated 01.09.2017 under Sections 120(B)/420/423 IPC read with Section 13(c) of PC Act, 1988 before the learned District and Sessio....
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....ired by State. IV. While matter was pending thus, on 29.03.2009, the Deputy Secretary to the Forest and Environment Department, Government of Meghalaya intimated the Principal Chief Conservator of Forest, Meghalaya that for implementation of scheme under acquisition for ecological importance areas, the Governor of Meghalaya has sanctioned an amount of Rs. 10 crores for acquisition of land in Mawpali. V. Thereafter, the Forest and Environment Department by communication dated 16.05.2010, forwarded the land acquisition documents for the acquisition of land in question including map, draft notifications and Collector's report to the Revenue Department, State of Meghalaya. VI. Thereafter, on 02.03.2011, a notification under Section 4 of L.A. Act, 1894 was issued. In the said notification it was further clarified that the land was supposed to be acquired urgently and therefore, Section 5A of the L.A. Act, 1894 shall not be applicable. VII. Thereafter, on 06.04.2011, notice under Section 6 of the L.A. Act 1894 was issued notifying that the land in question is required to be taken by the Government at the public expenses for a public purpose namely for establishment of protected f....
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....ollowing grounds:- I. The entire gamut of the allegations of money laundering leveled against the petitioners arose in the backdrop of the land acquisition. The said land has already been settled to be belonged to the petitioner No. 1 and same has been confirmed in different proceeding. The Syiem of Mylleum who is competent authority under the law has already certified on 08.11.1994 by Annexure 5 to the writ petition that the land belong to the petitioner No. 1. The judicial orders, including the decision of the Meghalaya High courts lead no room of doubt that the land belongs to the petitioner No. 1 and that the land was acquired following due process of law. Therefore, there is no question of any tainted money, the money paid in the account of the petitioner was made as the attorney holder and materials are available on record to show that the compensation money was used for the community and the villagers, including purchase of land for the villagers. II. Mr. Dey, learned Senior Counsel further argues that there is no complain from the petitioner No. 1 against petitioner No. 2 and the petitioner No. 2 is the attorney of the petitioner No. 1. III. Mr. Dey, learned Senior Co....
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...., learned Senior Counsel while interpreting Section 3 and 4 of the PMLA, 02 submits that unless there is a criminal activity relating to a Schedule offence, there can be no proceeds of crime. Therefore, proceeding under Section 3 of the PMLA, 02 can be initiated only in a case, the person is held guilty of receiving proceeds of crime as a result of commission of schedule offence. In the factual backdrop of the present case, it is clear that the money received cannot be treated as proceeds of crime and not even a charge is framed against the petitioners herein. In support of such contention, Mr. Dey relies on the judgment of High Court of Allahabad in Sushil Kumar Katiyar vs Union of India and Others reported in 2016 SCC Online ALLahbad 2632. X. Mr. Dey, learned Senior Counsel further submits that there is no materials on record or evidence available on record to initiate proceeding under Section 3 or 4 of the PMLA, 02 more particularly in the factual background of the case inasmuch as the reason for initiation of the proceeding / impugned provisional attachment are only the fact narrated in the FIR dated 12.11.2012 and the charge sheet dated. 01.09.2017 which has not made out e....
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....ty has issued notices to show cause the petitioners. Therefore, the petitioners are having statutory remedy available under Section 8 of the PMLA, 02, to raise all contentions before the Adjudicating Authority. II. On the basis of materials and record, the investigating authority had arrived at the reasonable belief which, is recorded and reflected in the provisional attachment dated 28.09.2018. Such subjective satisfaction of the investigating authority arrived at on the basis of material on record should not be replaced by this Court in exercise of power of judicial review. III. The term reason to believe though not defined in the PMLA, 2002 however, the same is defined under Section 26 of IPC and a person is said to have "reason to believe" a thing, if he has sufficient cause to believe to thing but not otherwise. The officers must have reason to believe on the basis of material in his possession that the property sought to be attached is likely to be concealed transferred or dealt with in a manner, which may result in frustrating any proceeding for confiscation of their property under PMLA, 2002. Such satisfaction was available on the basis of materials collected and accord....
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....his contention, Mr. Sarma, relies on a decision of the Delhi High Court in Asma Md. Faruk -Vs- Union of India reported in 2018 SCC Online Delhi 12800 and the order of dismissal of appeal preferred against such judgment by the Hon'ble Apex Court in Special Leave to Appeal (c) No. S 32941/2018 to contend that the Hon'ble Apex Court has also affirmed by the Hon'ble Apex Court and Mr. Sarma contends that the said judgment of Delhi High Court is therefore binding upon this Court. 9. I have given anxious consideration to the submissions made by the learned counsel for the parties, the pleadings on record. 10. Plea of alternative remedy and maintainability of the present writ petition. The law is well settled that alternative remedy is not a bar to the exercise of power judicial review under Article 226 of the Constitution of India by the High Court, if the writ petition is filed when it is filed alleging breach of enforcement of fundamental rights, violation of principles of natural justice and where the order or the proceeding are wholly without jurisdiction or when the vires of an act is challenged. In the case in hand the petitioners had questioned the power and jurisdiction or of ....
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....tertain the present writ petition. This Court is of the considered opinion that the decision of the Hon'ble Delhi High and the Hon'ble Apex Court relied on by the State of Meghalaya was decided in the given fact of that case and same are having no applicability in view of given facts of the present case relating to forum non convenience inasmuch as such plea has been raised in the present case by a formal party, without specifying its inconvenience. Further the parties have deliberated in details on the merit of this petition and no respondents including the State of Meghalaya has raised any issue questioning the jurisdiction of this Court. Therefore, the argument of the Mr. Sarma, learned counsel regarding the forum convenience is rejected. 12. Section 42 of the Act, provides that High Court shall be an appellate authority against the decision of the appellate tribunal constituted under Section 25 of the PMLA, 2002. In the case in hand, the proceeding was admittedly initiated by the authorities of the Enforcement Directorate at Guwahati Zonal Office, Rajgarh in the State of Assam and as the jurisdiction of the said authority in initiating the proceeding under PMLA, 2002 is the su....
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....his court that criminal activity will mean alleged involvement. Such conclusion is also necessary to harmoniously interpret Section 5 and Section 6 and Section 3 of the Act, 2002. Section 5 is a kind of preventive action to protect the proceeds of crime from being transferred or concealed or frustrated. 15. The Section 8 and 5 empowers the authority to act when they are satisfied that there are reasons to believe that any person has committed an offence under Section 3 of PMLA, 2002. The legislature has not used the word for "proof of commission of offence" but reasonable believe can be a basis to proceed under Sections 5 and 8 of the Act, 2002. Therefore, the criminal activity shall mean not a proof of criminal offence but an alleged criminal activity relating to schedule offence. In view of the aforesaid finding, it is the considered opinion of this Court that the authority in initiating the proceeding in the case in hand is having the jurisdiction. 16. Now, the next question is whether the subjective satisfaction arrived at while issuing the impugned provisional attachment order, the authority had before it, any credible materials or information or such decision was supported ....
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....ctness of the attachment including provisional attachment. For the purpose of such determination, the persons whose property has attached are given opportunity to be heard and to prove that the property is not involved in money laundering. Further when the provisional attachment order is passed in violation of the Sub Section 1 of Section 5 of the PMLA, Act and its proviso, such as that the property attached is not proceeds of crime and there is no likelihood of concealment of property etc., can be raised before the adjudicating authority and adjudicating authority, in the scheme of the Act, need to determine such objection also while exercising its power under Section 8 of the PMLA, Act. It is also well settled that more the stringent provision, more the stricter requirement for adherence of procedural safeguard. Thus, the issue that whether the twin condition of clause (a) and clause (b) are satisfied or not while passing the attachment order the Director etc., and whether there were urgency, can very well be examined by the adjudicating authority, while exercising of power under Section 8 of the PMLA Act, inasmuch as the aggrieved person whose property has been attached in exerc....