TaxTMI 
TaxTMI 
2022 (10) TMI 1081
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....er File Nos.ECIR/05/GWZO/2017/1390,ECIR/05/GWZO/2017/1391 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 ....
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....nd it was also held that in State of Meghalaya all land belongs to the people/community until the same is acquired 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....
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....ime, on 12.11.2012, the FIR before the Director General of Police was filed. 5. In the aforesaid backdrop, Mr. S. S. Dey, learned Senior Counsel challenges the entire proceeding on the following 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 Sen....
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....rdering attachment of properties do not have any authority of law even under the charging provisions of the Prevention of Money Laundering Act, 2002 itself to exercise any jurisdiction for attachment of property of the petitioners. IX. Mr. Dey, 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, 0....
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.... investigating authority, tendered evidences and the same are reflected in the provisional attachment order. As case of money laundering was established, the property in question which are involved in the offence of money laundering were provisionally attached and the adjudicating authority 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 materia....
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....grieved party, the High Court within jurisdiction of which the respondent resides shall have the appellate jurisdiction under Section 42 of the PMLA and therefore, though the present is not an appeal under Section 42, the jurisdiction provided under Section 42 shall also be applicable in the present case. In support of 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 pe....
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....etition cannot be dismissed on the ground of forum non convenience, more particularly when this matter is pending before this Court since 2018, the parties have filed their affidavit touching the merit of the controversy and it is not the case of the respondent State of Meghalaya that this Court is not having any jurisdiction to entertain 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 ....
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....t, criminal activity shall mean kind of criminal involvement in commission of offence punishable and it will not mean proved involvement. The legislature in its wisdom has used the word "criminal activity" relating to the schedule offence under Section 2 (u) and has not used the word "guilty of schedule offence". Therefore, in the considered opinion of this 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 cons....
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....ority. Sub Section 5 of Section 5 of the PMLA Act, provides that the authority who had issued the order of provisional attachment shall within a period of 30 days, shall file a complaint stating the fact of such attachment before the adjudicating authority. 20. The adjudicating authority under Section 8 of the PMLA, Act is having the power of adjudicate the correctness 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, ....