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TaxTMI 
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2019 (10) TMI 1533
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..../2015 dated 31.01.2015 were registered in this regard. Details of these two FIRs are as follows : 1. FIR No.21/15 registered on 31.01.2015 by the District Crime Branch, Madurai under Sections 379, 430, 447, 434, 304(ii) r/w 511 of IPC, Section 3(1) of Tamilnadu Property (Prevention of Damage and Loss) Act (TNP(PD&L)) and Sections 3(a) and 4(a) of the Explosive Substances Act. 2 FIR No.619/12 registered by Melur Police Station under Sections 447 and 379 of IPC and Sections 4(1), 4(2)(A), 4(3) and 21(b)(5) of Mines & Minerals (Development and Regulation) Act, 1957 and 3(1) of TNPPDL Act. 3 This Court is informed that investigation is in progress and with regard to one of the FIRs, charge sheet has been filed. It is not in dispute that writ petitioner is the nucleus of these FIRs and charge sheet. 4 In the aforesaid backdrop, first respondent initiated proceedings under 'The Prevention of Money-laundering Act, 2002' (Act 15 of 2003' (hereinafter 'PMLA Act' for brevity) and issued a provisional order of attachment dated 29.03.2019 being provisional order of attachment No. 3/2019 in F.No.ECIR/CEZO-II/16/2017 qua some of writ petitioner's immovable pro....
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....f the chunk that is excavated from below the earth. The pivotal submission in this regard is that the impugned attachment order and the consequent impugned complaint are premature as recovery percentage is yet to be crystallised. 9 Mr.T.Ramesh, learned counsel for writ petitioner also submitted that for making the impugned order of attachment, there should be 'reason to believe'. This expression 'reason to believe' has been explained by a learned Single Judge of Delhi High Court in order dated 25.01.2016 in W.P.(C)No. 1925 of 2014 in Mahanivesh Oils & Foods Pvt. Ltd. Vs. Directorate of Enforcement. Placing reliance on paragraph 43 of Mahanivesh Oils case, it was submitted that there could not have been any 'reason to believe' that writ petitioner is likely to conceal, transfer or deal with alleged 'proceeds of crime'. To be noted, 'proceeds of crime' within the meaning of PMLA Act. 10 In response to the aforesaid argument, learned Additional Solicitor General on behalf of respondents made submissions which can be broadly summarised as follows : (a) The FIRs do not pertain to recovery percentage alone, but there are other issues such as....
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.... 'reason to believe' under the caption 'recording reasons to believe'. Relevant portion reads as follows : "RECORDING REASONS TO BELIEVE U/S 5(1) OF THE ACT 22. Shri.Mohammed Ibrahim Sait has directly indulged in criminal activities for which two FIRs and subsequent Charge sheet in one FIR was filed by the police authorities and committed scheduled offences u/s 2(1)(x)&(y) of the PMLA and from the scheduled offences he generated proceeds of crime of Rs.21 crores in FIR 619/12 and Rs.58.5 crores in FIR 21/15 totalling to Rs.79.5 crores. These properties purchased by Shri. Mohamed Ibrahim Sait, in his and his family member's names, is directly linked to both the crimes in FIR 619/12 and FIR 21/15 and therefore the properties mentioned in the Schedule above is proposed to be attached as part of the equivalent value of the proceeds of crime by invoking Sec 2(u) of the Prevention of Money Laundering Act, 2002. 23. There are reasons to believe that properties mentioned in the schedule are proceeds of crime involved in money laundering and are likely to be transferred or dealt with any manner which may result in frustrating any proceedings relating to confisca....
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....f the adjudication under section 8(2) is adverse to the writ petitioner or in other words, even if the impugned attachment order which is provisional, is confirmed, writ petitioner has right of appeal to the appellate authority under section 26 of PMLA Act and thereafter, a further appeal to High /Court under section 42 of PMLA Act. Therefore, there are statutory remedies available under PMLA Act itself qua a hierarchy of Fora. In the instant case, in the factual matrix of this case, these aspects turn heavily on facts and therefore, this court deems it appropriate to hold that it should be best left to the provisions in PMLA Act referred to herein to take their course. To be noted, this logic applies to the impugned complaint also. 17 A perusal of the FIRs and charge sheet reveal that there are certainly other aspects of complaint (other than recovery percentage) as rightly pointed out by learned Solicitor. 18 There is one other aspect of the matter which is of importance. 19 There is no disputation or disagreement that immovable properties of writ petitioner that have been attached vide impugned attachment order are of value of only Rs.4 Crores, whereas the alleged loss is ....
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....n, these writ petitioners have no right to claim that there should be communication of reasons in the form of show cause notice before ordering provisional attachment. The validity period of provisional attachment is only for a period of 180 days before confirmation by Adjudicating Authority and therefore, the initial order has all the characteristics of show cause notice and no further requirement is contemplated in the statute. As far as the present case on hand is concerned, de horse the above legal finding, this Court finds that the Authority has given reasons in terms of the scheme of Section 5 and to what extent such reasons could ultimately end up in confirmation or not, is for the Adjudicating Authority to decide after a detailed enquiry to be conducted under Section 8 of PMLA. Therefore, on merits, this Court finds that submission that the Authority has not recorded reasons is contrary to records and the same is liable to be rejected. iii) The language used in Section 8(1) of PMLA is different from what it is used in Section 5(1) of PMLA. Both the expressions are different and distinct and the Adjudicating Authority is not required under Section 8(1) to record reasons a....
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....provide for multi layered alternative appellate remedies, one before the Adjudicating Authority, other before the Appellate Tribunal and another before this Court. Moreover, in these cases, there is no violation of any fundamental right nor action by the first respondent can be termed to be wholly unjustified nor there was a wholesale violation of principles of natural justice. In such scenario, this Court is not inclined to transgress beyond its self-imposed limitation not to entertain these writ petitions on the ground of availability of multiple appellate remedies under PMLA. vii) The contention as regards Rule Nisi is concerned, this Court has dealt with the preliminary objection as to the maintainability of the writ petitions since these writ petitions are challenging the initial action of provisional attachment and show cause notice and in such event, non-production of documents is not material to the adjudication of a purely legal dispute as to the maintainability of the writ petitions. viii) The plea of non-application of mind must be tested with reference to the factual aspects and the findings as found in the order passed by the initial authority under Section 5(1) ....