TaxTMI 
TaxTMI 
2023 (11) TMI 618
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....n No. 17581/2020 was also filed before the Division Bench of this Court. This writ petition was disposed of as withdrawn with liberty to pursue such remedies as available in law. Under these circumstances, the applicants had filed their applications for returning the properties mentioned in their applications in lieu of fixed deposit. 3. Learned Special Court (PMLA), Indore after considering the contents of applications and analyzing the provisions of Prevention of Money Laundering Act, 2002 (hereinafter referred to as 'PMLA, 2002') ordained for releasing the properties in lieu of fixed deposit of Rs. 7.02 crores. Being aggrieved by this impugned order, the present petitioner has been filed by the learned counsel for the Directorate of Enforcement Department. 4. In brief, the contentions of petition and arguments of counsels for the petitioner are that the case was registered vide ECIR/INSZO/2/2014 by the Directorate of Enforcement for the offence committed under Sections 120-B, 419, 420, 467 and 471 of IPC which are being scheduled offences under the PMLA, 2002. It is alleged that Investigation confirms that Dr. Vinod Bhandari invested the illegal money earned through malpra....
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....serves to be dismissed only on the basis of non-maintainability. In addition to that, learned counsel for the respondents has also contended on merits of the case and submitted that the order of learned Special Court has been passed within the jurisdiction and in accordance with provision of PMLA, 2002. Learned counsel for the respondents, relying upon various citations of Hon'ble Supreme Court and other High Courts, expostulated that since the order is correct in view of the law and facts of the case, this revision petition being devoid of merits, deserves to be dismissed and requested for dismissal of the revision petition. 7. In view of the aforesaid contentions and rival submissions, the point for determination is as under :- (i) whether this revision petition is liable to be dismissed on the basis of non-maintainability as the impugned order is an interlocutory order ? (ii) If not, as to whether, the impugned order passed by the learned Special Court is suffering from infirmity, illegality and impropriety ? 8. On the issue regarding interlocutory order, Shri Himanshu Joshi, learned counsel for the Directorate of Enforcement Department submitted that the....
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....and Section 5/13 of the Drug Control Act, was dismissed by the trial Court. The revision against that order was dismissed on the basis of non-maintainability. In that case, no allegations regarding violation of respective Acts and passing order without jurisdiction was made while in this case, the petitioner has challenged the order on the basis of violation of the Act. Hence, no benefit can be afforded to the respondents by the aforesaid citation. 11. Learned counsel for the respondents is also placing reliance upon the judgment of Shyam Tiwari Vs. State of M.P., 2021 SC OnLine MP 2671. The case relates to the offences punishable under Sections 420, 120-B and 409 of IPC and Section 13(1) of the Prevention of Corruption Act, the trial Court has declared the prosecution witness hostile and photocopy of audit report was taken as evidence. The Division Bench of this Court rejected the revision as not maintainable in the light of the bar under Section 397(2) of the Cr.P.C. The facts of this case, are absolutely different to the case at hand. Hence, no benefit can be given to the respondents at this stage. 12. Learned counsel for the respondents further placed reliance upon the ju....
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.... Vs. C.B.I. passed on 13.07.2017 in Criminal Appeal No. 1137/2017. On the basis of this, the petitioner contended that if the order under challenge culminates the criminal proceedings as a whole or finally decides the rights and liabilities of the parties is not interlocutory in spite of the facts that it was passed during any interlocutory stage. 16. Having gone through the aforesaid principles laid down by Hon'ble Apex Court and also High Court, it emerges that if the order is finally deciding the rights and liabilities of the parties, even, in an interim stage, it will be treated as final order and revision against that order lies. In this case, the petitioner has also challenged the order on the basis of violation of PMLA, 2002 and also passing the order without jurisdiction. On this aspect, I want to quote the view of Hon'ble Constitutional Bench of Apex Court taken in Mohanlal Maganlal Thakre Vs. State of Gujarat, AIR 1968 SC 733. In the para 6 of the judgment, Hon'ble Apex Court endorsing another judgment held as under :- The decision in Ramesh v. Patni SCR 198 (2) would seem to throw light on these questions. There the Claims Officer under the Madhya....
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....rior tribunal was challenged and the High Court either upheld it or did not, its order would be final. 17. In view of the aforesaid verdict, it is crystal clear that if the jurisdiction is challenged, the order will be considered as final. On this aspect, the law laid down in the judgment of Praveen Kumar Vs. State of Himachal Pradesh, 1989 CRLJ 2537, is also pertinent to mention here. The relevant para 8 of the judgment is mentioned below :- 8. An application under Section 451 Cr. P.C. has to be decided by the Court after hearing the parties seeking the release of the property in question. The parties are allowed to adduce evidence and it is only after hearing them that the Court passes the order thereby giving the custody of the property to one of them who may be adjudged by the Court to be best entitled for the same. To say that such an order is revisable by the Court on the termination of the proceedings or in between is no reason to call the order interlocutory order. Till such an order is made, it is final between the parties and the Magistrate cannot arbitrarily or without proper justification change the same during the course of the proceedings. The argument of ....
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....d counsel for respondents in support of the impugned order placed his reliance upon Esskay Properties and Investments Private Limited and Anr., (Special Leave to Appeal No. 9335/2022 decided on 16.09.2022). In this case, Hon'ble the Apex Court passed the order of provisional attachment in lieu of fixed deposit of Rs. 3 crores. This order was passed by Hon'ble Apex when the petitioner approached the High Court challenging the order of attachment as the Appellate Authority was not available whereas, in the case at hand, the orde+r was passed by the learned Special Judge not by Appellate Authority. Likewise, he has also placed reliance upon the judgment Veerbhadrappa G.E. Vs. State of Karnataka & Ors, (Writ Petition (s)(criminal) No(s) 124/2023 decided on 21.07.2023). In this regard, para 5 of the order is worth referring here :- 5. Enforcement Directorate also passed an order dated 29.06.2018 for provisional attachment of various properties including properties involving third party interest as disproportionate assets alleged in the CBI Case. Appeal filed by the petitioners against confirmation of attachment of disproportionate assets by the Enforcement Directorate i....
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....owhere mentioned that the applicants can be treated as claimants defined in the rules. One applicant is Dr. Vinod Bhandari, who is accused in the concerned criminal case and others applicants are his relatives. Then, at this stage, it cannot be presumed that they have acted in good faith and have suffered a quantifiable loss as a result of the offence of Money-laundering despite having taken all reasonable precautions. Since, Dr. Vinod Bhandari himself is an accused, he cannot be treated as 'claimant'. In view of the aforesaid definition enshrined under Rule 2(b) of PMLA Rule 2016. The respondents at this stage also cannot satisfy the first proviso of Section 8(8) of PMLA, 2002. 27. So far as the words 'such manner as may be prescribed' is concerned, the manner is also predicated under Section 3 and 3A of PMLA Rule, 2016, it would be condigned to quote these rules as under :- 3. Manner for restoration of confiscated property. - (1) The Special Court, within forty-five days from the date of passing the order of confiscation under sub-section (5) section 8 of the Act in respect of property, shall cause to be published a notice in two daily newspapers, one ....