2018 (11) TMI 238 - AT - Money Laundering

Offence under PMLA - attachment orders - seizure of jewelry and utensils - Held that - The Adjudicating Authority has simply based his finding on non appearance of the appellants before the ED had ignored the vital facts reiterated in the Court Room that the appellants have been appearing before the ED since long but the ED has not to recorded their statements. The appellants had explained many time that they live in the joint family headed by their father and the jewelry and utensil seized were STRI DHAN of three married ladies in the house and a few of their father generated in course of time out of his life long earnings. The ladies had also placed their claims before the Adjudicating Authority by letter dated 16.01.2016. The impugned PAO has been issued by Shri J P Singh Adhoc Joint Commissioner. It is an admitted fact that all powers flows from the Director. The Director of the ED himself requested CBI to initiate enquiry in the matter. No report before the Magistrate under Section 173 against the appellants. In the charge sheet of 2013 the appellants were not arrayed as accused. It is also informed this tribunal that no PMLA complaint has been filed against the appellants. The prescribed period already expired. Even on merit no case beyond any doubt even prima facie is established by producing any cogent and clear evidence. Only on the basis of the statement of alleged accused witnesses the properties were attached. There is no independent evidences. The statement of other accused has no value unless independent evidence implicating the appellant are produced. Since in the charge-sheet the appellant the appellants were not arrayed as accused for schedule offence as well as PMLA complaint. The prayer of the appeals are liable to be allowed. Thus the impugned order and the provisional attachment order against the appellants is quashed. The attached properties are released forthwith. The finding arrived in these appeals shall have no bearing with regard to other parties if they are involved.

Issues Involved:
1. Appeal against orders dated 05.02.2018 and 24.11.2015.
2. Ownership of cash found in a house.
3. Seizure of jewelry and utensils from premises.
4. Allegations related to betting proceeds.
5. Provisional attachment order confirmation.
6. Impugned order of the Adjudicating Authority.
7. Implication based on custodial statements.
8. Non-appearance before the Enforcement Directorate.
9. Explanation regarding seized jewelry and utensils.
10. Authority of the officer issuing the attachment order.
11. Lack of evidence against the appellants.
12. Appearance before the ED by the appellants.
13. Claims by family members regarding seized items.
14. Powers of the Director of the ED.
15. Absence of a report before the Magistrate.
16. Lack of clear evidence for attachment.
17. Non-involvement of appellants in previous proceedings.
18. Release of attached properties.
19. Decision's impact on other parties.

Detailed Analysis:

1. The judgment pertains to multiple appeals against orders dated 05.02.2018 and 24.11.2015. The facts and legal issues in all appeals are similar, leading to a common order for disposal with the consent of the parties.

2. The first issue involves the ownership of cash found in a house, where it was established that the cash seized belonged to various individuals residing in the house, not solely to the appellant or his brother. The appellant contended that the seized cash was from legal sources of income, supported by relevant documents, challenging the impugned order.

3. The second issue concerns the seizure of jewelry and utensils from premises, with allegations related to betting proceeds. The provisional attachment order was confirmed based on evidence collected during investigations, leading to a submission by the appellant's counsel against the confirmation of the attachment order.

4. The third issue revolves around the impugned order of the Adjudicating Authority, where the appellant challenged the confirmation of the provisional attachment orders without considering submissions or providing reasons in writing, leading to the filing of appeals.

5. The fourth issue addresses the implication of the appellants based on custodial statements, highlighting the lack of independent evidence against them and the reliance on non-appearance before the Enforcement Directorate as a basis for the decision.

6. The fifth issue involves the explanation provided by the appellants regarding the seized jewelry and utensils, stating that the items belonged to family members and were acquired through legal means, supported by claims made by the family members before the Adjudicating Authority.

7. The judgment also discusses the authority of the officer issuing the attachment order, emphasizing the need for proper authorization and adherence to legal procedures, raising concerns about the integrity of the officer involved in the search and seizure.

8. Furthermore, the lack of clear evidence and involvement of the appellants in previous proceedings, coupled with the absence of a report before the Magistrate and the non-filing of a PMLA complaint against the appellants, led to the decision to quash the impugned order and release the attached properties.

9. The judgment concludes by stating that the decision's impact is limited to the parties involved in the appeals, with no costs imposed and the attached properties to be released immediately.

← Previous Next →