TaxTMI 
TaxTMI 
2023 (9) TMI 1070
X X X X Extracts X X X X
X X X X Extracts X X X X
....d in terms of Section 2 (a) read with Section 6 (1) and (2) of the PMLA, 2002. 2. The facts as stated by the Appellant in the writ petition are that the State Bank of India lodged a complaint on 25.08.2020 alleging that the accused had committed diversion of funds for the purposes other than the funds were availed from the State Bank of India. An FIR bearing No. RC2232022A0002 dated 07.02.2022 was registered by CBI for the commission of the alleged offence under Section 409, 420 r/w Section 120- B of IPC, 1860 and Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988. 3. It is stated by the learned Counsel for the Appellant that the Appellant was not named as an accused in the aforesaid FIR. The Respondent/Enforcement Directorate (ED) registered an ECIR bearing No. ECIR/AMZO/11/2022 dated 15.02.2022 against the Appellant and other accused persons. A Provisional Attachment Order bearing No. 08/2022 dated 21.09.2022 was passed under Section 5(1) of the PMLA, 2002. Original Complaint bearing No. 1824/2022 was filed by the Respondent/Enforcement Directorate on 19.10.2022 before the Adjudicating Authority for adjudication of the complaint and for passing Orders by c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of the PMLA contending that the matter is of such a nature that it ought to be heard by a Bench consisting of two members. He further contends that the application ought not to have been decided without affording a hearing to the Appellant. 6. The present appeal came up for hearing before this Court on 07.03.2023 and same was reserved for pronouncement of Judgment. However, certain clarifications were required and the matter was again placed for hearing on 05.04.2023, 11.04.2023 and on 12.04.2023, the matter was reserved for pronouncement of Judgment. 7. Section 5 of the PMLA postulates that where the Director or any other officer not below the rank of Deputy Director authorised by the Director, on the basis of material on possession has reason to believe which has to be recorded in writing that any person is in possession of any proceeds of crime and such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings, he may, by order in writing, provisionally attach such property for a period not exceeding 180 days from the date of the order. 8. This Court has perused the Provisional Attachment Order ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....re, as to whether there can be a Bench consisting of a Single Member is no longer a res integra and has been settled in a Judgment dated 11.01.2018 passed by the Division Bench of this Court in a batch of petitions i.e., W.P. (C) 5320/2017 etc. in the case of J Sekar vs. Union of India & Ors etc. Paragraph Nos. 79 and 80 of the said Judgment reads as under: "79. The Court next takes up the question of the composition of the AA on which extensive arguments were advanced by the learned counsel for the Petitioners. In this context, it must be noticed that under Section 6 PMLA, the AA is supposed to consist of the Chairperson and two other members - one of whom shall be a person having experience in the field of law. Section 6(3) further sets out what the qualifications for appointment as a member of an AA should be. One of those qualifications is that the person has to be qualified for appointment as a District Judge or a person in the field of law or a member of an Indian Legal Service. The other qualification is possession of a qualification in the field of finance, accountancy or administration as may be prescribed. It is, therefore, not the case that all the members of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the PMLA provides for an appeal before the Appellate Tribunal against any Order passed by the Adjudicating Authority. There was a fully functional Appellate Tribunal at the time when the Order dated 25.01.2023 was passed by the Adjudicating Authority, and therefore, the writ petition was not maintainable before the learned Single Judge. 17. The Apex Court in Commissioner of Income Tax and Ors vs. Chhabil Dasss Agarwal, (2014) 1 SCC 603 has observed as under: "13. In Nivedita Sharma v. Cellular Operators Assn. of India [(2011) 14 SCC 337 : (2012) 4 SCC (Civ) 947], this Court has held that where hierarchy of appeals is provided by the statute, the party must exhaust the statutory remedies before resorting to writ jurisdiction for relief and observed as follows: (SCC pp. 343-45, paras 12-14) "12. In Thansingh Nathmal v. Supt. of Taxes [AIR 1964 SC 1419] this Court adverted to the rule of self-imposed restraint that the writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed: (AIR p. 1423, para 7) '7. ... The High Court does not therefore act as a court of appeal against the decision of a court or trib....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... majority of the larger Bench) observed: (SCC p. 607, para 77) '77. ... So far as the jurisdiction of the High Court under Article 226-or for that matter, the jurisdiction of this Court under Article 32-is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment.'" (See G. Veerappa Pillai v. Raman & Raman Ltd. [(1952) 1 SCC 334 : AIR 1952 SC 192] , CCE v. Dunlop India Ltd. [(1985) 1 SCC 260 : 1985 SCC (Tax) 75] , Ramendra Kishore Biswas v. State of Tripura [(1999) 1 SCC 472 : 1999 SCC (L&S) 295] , Shivgonda Anna Patil v. State of Maharashtra [(1999) 3 SCC 5] , C.A. Abraham v. ITO [AIR 1961 SC 609 : (1961) 2 SCR 765] , Titaghur Paper Mills Co. Ltd. v. State of Orissa [Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 : 1983 SCC (Tax) 131] , Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath and Sons [1992 Supp (2) SCC 312] , Whir....