TaxTMI 
TaxTMI 
2025 (7) TMI 931
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....of the PMLA in OC No. 2318/2024 confirming the Provisional Attachment Order No. 2/2024 dated 02.05.2024 passed in the Enforcement case Information Report dated 11.04.2024 registered by the ED under the PMLA. 3. Contention of learned counsel for the petitioner is that the petitioner was neither informed in person or through its counsel regarding the pronouncement of the Confirming Order and the following aspects are as under: (I) Pronouncement of orders before the Adjudicating Authority is notified by way of a cause list that is publicly accessible. In other cases, the intimation of pronouncement of an order is given through e-mail. (ii) the order of the learned adjudicating authority is not uploaded or on accessible through it website. (iii) counsel for the petitioner has filed Vakalatnama on the behalf of the petitioner on 26.09.2024 when the complaint was finally heard and filed the written submissions on 29.09.2024 whereby the Adjudicating Authority was intimated that the petitioner (Director-Trilok Singh Dhillon) was in judicial custody. (iv) the Director of the Company (Trilok Singh Dhillon) is in judicial custody at Central Jail Raipur and which is established from t....
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....e context of the word "communication" used in Regulation 28. The requirement under the Regulations to communicate the Confirming Order must be interpreted purposively rather than an empty formality. This is especially so since the requirement of communicating a judicial order is necessary concomitant which the learned Adjudicating Authority is bound to comply with under Section 6(15) of the PMLA. The need to communicate the Confirming Order cannot be said to have been met without bringing to the knowledge of the petitioner the grounds on which the PAO was confirmed. He has relied upon the judgment of State of Punjab Vs. Qaisar Jehan Begum (1964) 1 SCR 971, which reads as under: "4. As to the second part of cl. (b) of the proviso, the true scope and effect thereof was considered by this court in Raja Harish Chandra's Case (1). It was there observed that a literal and mechanical construction of the words "six months from the date of the Collector's award" occurring in the second part of cl. (b) of the proviso would not be appropriate an and "the knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fair play and natur....
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....ish. The grounds of detention, which were served on the detenu, have been drawn up in English. It is true that Shri C. L. Antali, Police Inspector, who served the grounds of detention on the detenu, has filed an affidavit stating that he had fully explained the grounds of detention in Gujarati to the detenu. But, that is not a sufficient compliance with the mandate of Article 22(5) of the Constitution, which requires that the grounds of detention must be "communicated" to the detenu. "Communicate" is a strong word. It means that sufficient knowledge of the basic facts constituting the 'grounds' should be imparted effectively and fully to the detenu in writing in a language which he understands. The whole purpose of communicating the 'ground' to the detenu is to enable him to make a purposeful and effective representation. If the 'grounds' are only verbally explained to the detenu and nothing in writing is left with him, in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed. If any authority is needed on this point, which is so obvious from Article 22(5), reference may be made to the ....
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....ounsel for the petitioner submits that the ED has exercised the power under Section 8(4) of the PMLA and under the Rules contrary to the law laid down by the Apex Court and Delhi High Court in their judgments. Thus, the petitioner has sought for the following relief: Firstly, that the ED cannot resort to taking coercive measures under the Rules against the petitioner without supplying copy of the Confirming Order on which the coercive measures are based. He has referred to the judgment of the High Court of Delhi in the matter of Bliss Abode Pvt. Ltd. Vs. Zonal Office, Directorate of Enforcement and Others, 2021 SCC OnLine Del 5644. He submits that due to non supply of the copy of the Confirming Order prior to the outstanding sums, the petitioner could not approach the Appellate Tribunal under the PMLA by way of an appeal under Section 26 of the PMLA to obtain a stay or any interim relief. The petitioner had also been deprived of understanding the grounds for confirming the PAO which form the basis of the coercive action under Section 8(4) of the PMLA. Secondly, there was no need to resort to the power under Section 8(4) of the PMLA since the fixed deposits were under lien from ....
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....the matter any further. ED MANUAL 180. It had been urged that the 2002 Act creates an overbroad frame with no fetters on investigation. Besides questioning the refusal to furnish copy of ECIR, grievance is also made about the opacity surrounding the usage of ED Manual. Relying on Section 4(b)(v) of the RTI Act, it was urged that it was obligatory on the part of the Public Authority to publish the stated Manual within 120 days of the enactment of RTI Act. All other authorities including the Central Vigilance Commission, Income-tax Authorities, Authorities under 1962 Act, Police Authorities, Jail Authorities have adhered to this statutory compliance, except the ED. In response, it is submitted by the learned Additional Solicitor General that ED Manual is an internal departmental document only for the use of officers of the ED. It is to give them guidance on proper enforcement of 2002 Act and outlines the procedure for implementation of the provisions of this Act. In addition, reliance is placed on the exposition of the Constitution Bench of this Court in Lalita Kumari704. In paragraph 89 of this decision, the Court observed thus: "89. Besides, the learned Senior Counsel relied ....
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....bsite of ED may be explored. APPELLATE TRIBUNAL 182. Serious grievance has been made about the vacancies in the Appellate Tribunal despite the serious prejudice being caused on account of provisional attachment order and, in some cases, taking over possession of the property so attached. This grievance, even though genuine, cannot be the basis to test the validity of the provisions of the 2002 Act or to question the efficacy of those provisions on that account. The Parliament by this special legislation having created an expert body being Appellate Tribunal to deal with matters concerning attachment, possession and confiscation and vesting of property in the Central Government, it is, but necessary, that the forum should be functional and accessible to the aggrieved persons uninterruptedly. We need to impress upon the Executive to take necessary corrective measures in this regard. Absent such forum, the aggrieved persons have to rush to the High Court on every occasion which indeed is avoidable. PUNISHMENT UNDER SECTION 4 OF THE 2002 ACT 183. It is urged that there is no gradation of punishment depending on the nature of offence which may be committed by the principal off....
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....esorted to in extreme situations and not in a routine and mechanical manner. The reply filed by the ED in the present case, does not point any circumstances which justify or warrant the exercise of the extreme power. The ED has also provided a vague justification which cannot be countenanced in law. The subjective satisfaction purportedly recorded by the ED cannot be immune from judicial review and procedural requirement and safeguards cannot be treated as having been complied with merely on the ipse dixit of the ED. It is also contended by the petitioner that even the notice addressed to the respondent No. 2/Bank does not enclose the copy of the Confirming Order. Hence, learned counsel for the petitioner prays that the impugned notice dated 2.12.2024 passed by the respondent No. 1 to respondent No. 2 under Section 8(4) PMLA and Rule 4(5) PMLA,2013 in O.C. No. 2318/2024 may be quashed/set aside and direction may be issued for quashing/setting aside the order dated 7.10.2024 under Section 8(3) of the PMLA in OC No. 2318/2024 and supply certified copy of the record of proceedings forthwith. 11. Dr. Saurabh Kumar Pandey, learned counsel appearing for the respondent No. 1/ED submits t....
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....rder is directly forwarded by the Adjudicating Authority to the e-mail/postal address of the defendants available. It is submitted that the said order was delivered at the two addresses which include the residence of Trilok Singh Dhillon and his Company. However, the order was not delivered to the official address located in Mumbai. 15. With regard to the contention of the learned counsel for the petitioner that possession of the movable properties was taken strictly in accordance with the provisions laid down in PMLA 2002. It is reiterated that this transfer of amount into the bank account of the respondent is final. It is submitted that if the PMLA Court finds that properties are not involved in money laundering then the properties shall be restored to the petitioner. Section 8(5) and 8(6) of the PMLA reads as under: 5. Where on conclusion of a trial of an offence under this Act, the Special Court finds that the offence of money-laundering has been committed, it shall order that such property involved in the money-laundering or which has been used for commission of the offence of money-laundering shall stand confiscated to the Central Government. 6. Where on conclusion of ....
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....ority but in the present case, the petitioner voluntarily missed the hearing with some ulterior motive. 19. Contention of learned counsel for respondent No. 2/Bank is that the Bank has acted strictly in compliance with the directions issued by the Adjudicating Authority, PMLA in Original Complaint Case No. 2318/2024 dated 7.10.2024. he submits that the assertion of the petition that the notice is 'ex facie illegal" is unfounded. The order dated 7.10.2024 which directed the attachment of the petitioner's fixed deposits, was passed after due consideration of all facts and submissions made by the parties and there is not only valid but enforceable and the respondent No. 2 is duty bound to give effect to it. To the contention of the learned counsel for the petitioner that the confirming order was not communicated to the petitioner, he stated that in the order itself it has been mentioned that "the soft copy of the order will be uploaded on the email of the Defendant (whenever available) within 48 hours from the pronouncement of the order, one hard copy of the order is also despatched simultaneously on the address available with the Adjudicating Authority. Further the certified copy of....
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....uated in Central Jail, Raipur. The Vakalatnama filed before the learned Adjudicating Authority contains an endorsement of the Jail Superintendent . 24. It is also pertinent to mention here that the written submission was filed before the Adjudicating Authority by the petitioner through his counsel and in the petition, it is shown that the Director of the Company ie. the present petitioner is in jail. It is also clear from the record that the Adjudicating Authority has not communicated the order to the petitioner in jail. The Adjudicating Authority has communicated it to the residential address of the petitioner when in fact, he was in jail at the relevant time. 25. It is also pertinent to mention here that on the date of pronouncement of the order dated 7.10.2024 passed by the learned Adjudicating Authority, learned counsel for the petitioner did not appear before the Adjudicating Authority for the reasons best known to him. The Adjudicating Authority has not supplied any proof of mail or intimation to the counsel for the petitioner with regard to the pronouncement of the order by the Adjudicating Authority. As per the order of the Adjudicating Authority, the order was passed in ....