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2024 (8) TMI 523
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....en given to show that appellant is not involved in the crime thus, not named even as an accused yet his property has been attached. Other legal issues have also been raised which would be dealt with by us separately but before that we may refer to the brief facts of the case. Brief facts of the case: 3. FIR No. 118 was registered on 11.10.2017 with Police Station Mohali against Gurinder Singh and Pirtpal Singh for the offences under Sections 472, 473,384, 420 and 120-B IPC. Further, FIR No. 158 was registered on 11.10.2017 at Police Station Mataur, Mohali against Pirtpal Singh for the offence under Section 30 of the Arms Act, 1959. On the basis of the reliable information, investigation was initiated against M/s Seabird Education and Immigration Consultants Pvt. Ltd. under the Foreign Exchange Management Act, 1999. During investigation, it was found that Pirtpal Singh along with Manoj Kumar, are the Director of M/s Seabird Education and Immigration Consultants Pvt. Ltd, incorporated on 27.05.2008. It was in the field of arranging education visa to the students and they claimed that they have two colleges in Australia. It was further revealed during investigation that the said....
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.... M/s Seabird International Pvt. Ltd. and at the same time made the payments which were in the course of business. However, ignoring the aforesaid, the properties of the appellant have been attached alleging receipt of payment directly from the students amounting to Rs.78,96,700/-. The facts, however, remain that the appellant had advanced the loan and its receipt and for that IT return was produced. In the light of the facts aforesaid, the prayer was made to cause interference in the impugned order. Other than the issues referred above, no other argument was raised by the counsel for the appellant. Arguments of the side opposite. 9. The appeal was seriously contested by the respondent. It was submitted that neither any factual nor legal ground is made out to cause interference in the impugned order. The appellant was a recipient of the `proceeds of crime. He had assisted the main accused for layering of money. It was layered by the banking channel. It was established by the bank statements. 10. The facts on record shows that the appellant had received a sum of Rs.78,96,700/- directly from the students without specifying the reasons for receipt of the said amount. In fact, ....
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....ve been attached in reference to the FIR and ECIR registered against others. Before referring the legal issues, we have given brief background of the case which indicates that appellant is a recipient of the `proceeds of crime' to the extent of Rs.78,96,700/- directly from the students who have made serious allegations against Pirtpal Singh and Gurinder Singh of M/s Seabird International Pvt. Ltd. for cheating them and extracting money to the tune of Rs.7.56 crores in the name of arranging visa for international study in Australia. The appellant was in possession of the `proceeds of crime' and in the light of the aforesaid, it was liable to be attached. A reference of Sections 2(1)(u), 3 and 5 of the Act of 2002 would be relevant and are quoted hereunder: "2(1)(u)"proceeds of crime" means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property [or where such property is taken or held outside the country, then the property equivalent in value held within the country or abroad]; Explanation. For the removal of doubts, it is hereby clarified that "procee....
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....nner as may be prescribed: Provided that no such order of attachment shall be made unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under section 173 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint has been filed by a person authorised to investigate the offence mentioned in that Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be, or a similar report or complaint has been made or filed under the corresponding law of any other country: Provided further that, notwithstanding anything contained in 2[first proviso], any property of any person may be attached under this section if the Director or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section has reason to believe (the reasons for such belief to be recorded in writing), on the basis of material in his possession, that if such property involved in money-laundering is not attached immediately under this Chapter, the non-attachment of the property is likely to frustrate any proceeding under this Act.] Provided also that for the purposes of computing....
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....a 65 of the judgment is quoted thus: "65. As aforesaid, in this backdrop the amendment Act 2 of 2013 came into being. Considering the purport of the amended provisions and the experience of implementing/enforcement agencies, further changes became necessary to strengthen the mechanism regarding prevention of money- laundering. It is not right in assuming that the attachment of property (provisional) under the second proviso, as amended, has no link with the scheduled offence. Inasmuch as section 5(1) envisages that such an action can be initiated only on the basis of material in possession of the authorised officer indicative of any person being in possession of proceeds of crime. The precondition for being proceeds of crime is that the property has been derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence. The sweep of section 5(1) is not limited to the accused named in the criminal activity relating to a scheduled offence. It would apply to any person (not necessarily being accused in the scheduled offence), if he is involved in any process or activity connected with the proceeds of crime. Such a pers....
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....tachment Order was passed on 12.11.2021 while its confirmation was made by the order dated 18.08.2022. It is beyond the period of 180 days. We have already quoted Section 5 of the Act of 2002 which provides that an order for provisional attachment to continue for a period not exceeding 180 days from the date of order unless it is confirmed. Section 5(3) provides that an order of attachment would cease to have effect after the expiry of the period specified i.e. 180 days unless an order is made under Section 8(3) of the Act. Section 8 (3) is also quoted hereunder for ready reference: "8. Adjudication. (1) and (2) xxx (3) Where the Adjudicating Authority decides under sub-section (2) that any property is involved in money-laundering, he shall, by an order in writing, confirm the attachment of the property made under sub-section (1) of section 5 or retention of property or 3[record seized or frozen under section 17 or section 18 and record a finding to that effect, whereupon such attachment or retention or freezing of the seized or frozen property] or record shall- (a) continue during 4[investigation for a period not exceeding 5[three hundred and si....
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...., if any, shall become available with effect from 01.03.2022. III. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining with effect from 01.03.2022 is greater than 90 days, that longer period shall apply. IV. It is further clarified that the period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods prescribed under Sections 23(4) and 29A of the Arbitration and Conciliation Act, 1966. Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings". 19. The perusal of the order of the Apex Court makes it clear that the exclusion of the period given therein is even for termination of proceedings. The Apex Court has specifically provided in....
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.... iii) On the other hand, the ED in both W.P. Nos. 34238 of 2022 and 34627 of 2022 contends that due to Covid-19 pandemic the provisional attachment of properties could not have been confirmed within 180 days. However, in In re: Limitation (supra) the Apex Court extended the period limitation from 15.03.2020 to 28.02.2022. ED contends that the period from 15.03.2020 to 28.02.2022 shall be excluded from the date of provisional attachment till the date of passing of confirmation order to compute the period of 180 days. iv) It is relevant to note that the Apex Court in In re: Limitation (supra) took suo moto cognizance of the Covid-19 pandemic situation and extended the period of limitation from 15.03.2020 for the purpose of filing petitions/applications/suits/ appeals/all other proceedings under any general or special law before any Court or Tribunal. The object of such extension was in recognition of the difficulties that might be faced by lawyers/litigants to file their applications physically. The relevant paragraphs of In re: Limitation (supra) are extracted below: 1. This Court has taken suomotu cognizance of the situation arising out of the challenge f....
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....ion remaining, all persons shall have a limitation period of 90 days from 1-3-2022. In the event the actual balance period of limitation remaining, with effect from 1-3-2022 is greater than 90 days, that longer period shall apply. 5.4. It is further clarified that the period from 15-3-2020 till 28-2-2022 shall also stand excluded in computing the periods prescribed under Sections 23(4) and 29-A of the Arbitration and Conciliation Act, 1996, Section 12-A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings. vi) For instance, Section 29A of the Arbitration & Conciliation Act, 1996 provides a time limit of 12 months within which an award has to be passed. By virtue of In re: Limitation, 2022 (supra), the period from 15.03.2020 to 28.02.2022 shall be excluded to compute the period of 12 months under Section 29A of the Arbitration & Conciliation Act, 1996. Similarly, Section 12A(3) of the Commercial Courts Act, 2015 provide....
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....rescribed period of limitation in instituting a proceeding. **** 18. Section 5(3) is a clear embargo on the order of attachment continuing to have effect after the expiry of 180 days. Section 5(1) designates the authority and the steps to be taken for proceeding against any person who is in possession of any proceeds of crime. The section is hence concerned with the procedure to be undertaken for provisional attachment of a property subject to the fulfillment of the other conditions in Section 5. A prescribed procedure after the same has been initiated cannot be equated to institution of a suit or filing of a petition/application which is a starting point of litigation for a person who seeks relief under a statute. The 180 days window in Section 5 contemplates an endpoint whereas the Supreme Court in the Suo Motu writ petition sought to protect the starting-point, which was at the risk of being defeated by reason of the pandemic. 19. In other words, what was being protected by the orders of the Supreme Court was the right to remedy, not the right to take away a remedy under a given statute. The respondents before this Court seek to do the latter. The only step tak....
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.... the specified time frame. If the Authority does fail to take requisite steps, the right to relief arises immediately after exhaustion of the 180 days window and once such right is given to a litigant, it cannot be taken away. This Court respectfully disagrees with the views expressed in Vikas WSP Ltd. (supra), Gobindo Das (supra) and Hiren Panchal (supra) in relation to applicability of In re: Limitation (supra). xviii) According to this Court, the decision in S. Kasi (supra) cannot be relied upon by the Petitioners to contend that In re: Limitation (supra) is not applicable in computing 180 days under Section 5(3) of the PMLA. In S. Kasi (supra), In re: Limitation (supra) was held to be inapplicable to proceedings involving personal liberty of a person where the investigating officer failed to file charge sheet within the prescribed time. The decision in S. Kasi (supra) cannot be extended to PMLA proceedings dealing with confirmation of provisional attachment order within 180 days. xix) It is true that provisional attachment of property has an effect of potentially depriving a person of his property. However, right to personal liberty and right to prope....
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....riant of the virus. The drastic re-surge in the number of Covid cases has led this Court to again deal with the matter in SMWP No. 3 of 2020 on an application bearing No. 21 of 2022; and by the order dated 10-1-2022 [Cognizance for Extension of Limitation, In re, (2022) 3 SCC 117 : (2022) 2 SCC (Civ) 46 : (2022) 1 SCC (Cri) 580 : (2022) 1 SCC (L&S) 501], this Court again restored the principal order dated 23-3-2020 [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 : (2021) 3 SCC (Cri) 801] and in continuation of the previous orders, has further directed that the period from 15-3-2020 till 28-2-2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings. Be that as it may, the fresh order in SMWP No. 3 of 2020 need not be elaborated for the present purpose.] **** 32.2. In fact, in S. Kasi case [S. Kasi v. State, (2021) 12 SCC 1 : 2020 SCC OnLine SC 529] , this Court also noticed that a coordinate Bench of the same High Court had already held [Settu v. State, 2020 SCC OnLine Mad 1026] that the said order dated 23-3-2020 [Cognizance for Extensio....
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....plied to such a quasi-judicial authority. In any case, we keep this issue open to enable the petitioner to agitate the same before the Appellate Tribunal. xxiv) This Court also disagrees with the view adopted in Vikas WSP Ltd. (supra), Gobindo Das (supra) and Hiren Panchal (supra). The decision in Vikas WSP Ltd. (supra) was stayed by a Division Bench of the Delhi High Court vide order dated 08.01.2021 in LPA 362/2020. In any case, the question regarding the application of In re: Limitation (supra) was left open. xxv) As far as Gobindo Das (supra), is concerned, though it is true that Adjudicating Authority is not a litigant, the authorized officer representing the ED is a litigant to the proceedings initiated under PMLA and for the purpose of application of In re: Limitation (supra). Therefore, where the ED has been diligent in provisionally attaching the property and filing the original complaint within 30 days under Section 5 of the PMLA, prejudice cannot be caused to it by not excluding the period from 15.03.2020 to 28.02.2022. One litigant"s interests cannot be protected at the cost of another. This Court would further like to stress that the provisionally att....
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.... has ignored the order of the Apex Court for exclusion of the period from 15.03.2020 to 28.02.2022 even for termination of proceeding. It is in respect of all judicial or quasi-judicial proceedings. 23. It would be relevant to refer to the judgment of the Apex Court in the case of Prakash Corporates v. Dee Vee Projects Limited reported in MANU/SC/0180/2022 wherein it explained its earlier judgment in the case of S. Kasi v. StateCriminal Appeal No. 452 of 2020 decided on 19.06.2020. The relevant paras of the judgment (supra) are quoted hereunder: "10.3. With reference to the decision of this Court in the case of S. Kasi v. State Criminal Appeal No. 452 of 2020 decided on 19.06.2020, it has been argued on behalf of the Respondent that a 3-Judge Bench of this Court has specifically ruled that the said order dated 23.03.2020 in SMWP No. 3 of 2020 is not applicable to all the applications; and benefit of the order of extension of limitation cannot be taken by police while filing chargesheet Under Section 167(2) of the Code of Criminal Procedure, 19736. Further, with reference to the decision in the case of Sagufa Ahmed (supra), it has been argued that what was extended in SM....
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....od(s) of limitation, as prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings, whether condonable or not, shall stand extended until further orders. Further clarification was also made for exclusion of the period from 14.03.2021 in regard to the other period(s) prescribed under different laws. In this order dated 27.04.2021, this Court took note of the orders earlier passed in the matter and thereafter, observed and directed as under: Supreme Court Advocate on Record Association (SCAORA) has now through this Interlocutory Application highlighted the daily surge in COVID cases in Delhi and how difficult it has become for the Advocates-on-Record and the litigants to institute cases in Supreme Court and other courts in Delhi. Consequently, restoration of the order dated 23rd March, 2020 has been prayed for. We have heard Mr. Shivaji M. Jadhav, President SCAORA in support of the prayer made in this application. Learned Attorney General and Learned Solicitor General have also given their valuable suggestions. We also take judicial notice of the fact that the steep rise in COVID-19 Virus cases is not limited to De....
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....was directed, in continuation of the order dated 08.03.2021, that the periods of limitation as prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings, whether condonable or not, shall stand extended. Ultimately, the said MA No. 665 of 2021 was disposed of on 23.09.2021 with this Court issuing directions similar to those contained in the order dated 08.03.2021 but while providing that in computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 02.10.2021 shall stand excluded. 19.6. We are not elaborating on other directions issued by this Court but, when read as a whole, it is but clear that the anxiety of this Court had been to obviate the hardships likely to be suffered by the litigants during the onslaughts of this pandemic. Hence, the legal effect and coverage of the orders passed by this Court in SMWP No. 3 of 2020 cannot be unnecessarily narrowed and rather, having regard to their purpose and object, full effect is required to be given to such orders and directions". 24. The Apex Court has distinguished its earlier judgment in reference to Article 21 of the Con....