2019 (5) TMI 815 - AT - Money Laundering

Offence under PMLA - attachment orders - denial of natural justice - immovable property of a person has been made part of a prosecution complaint for confiscation without making that person as a party and affording that person an opportunity to defend his case - HELD THAT - It is clear from the written submission of the respondent as well as oral submissions made by the respondent that ED has filed Prosecution Complaint only against Shri Bimal Ramgopal Agarwal, not against the present appellant but the property of present appellant has been made part and parcel of the said prosecution complaint. It is strange to note here that an immovable property of a person has been made part of a prosecution complaint for confiscation without making that person as a party and affording that person an opportunity to defend his case. Section 8(3)(a) of PMLA has been amended by the Act 13 of 2018, wherein a limitation period has been provided for continuation of attachment or retention of property or record post confirmation of attachment/retention. It is the intention of the legislature not to allow the Investigating Authority to get the property attached or retained the record/documents/items indefinitely in the name of investigation. It has been admitted, during the course of oral submissions, by the learned counsel for the respondent that no Prosecution Complaint is pending against Shri Sanjay Kumar, the present appellant till 12.04.2019 when the appeal was finally argued. The submissions made by the parties are considered. The relevant provisions of law are also considered along with the factual and legal issues raised by the parties. The impugned order was passed on 24.07.2018 and no Prosecution Compliant is pending against the appellant even though more than 250 days from the date of impugned order have already been passed. Since, we have decided the appeal in the light of amendment brought in the statute as mentioned above hence, we have not gone into other legal issues raised herein. Under these circumstances, the appeal is allowed. The impugned order is set aside. The appellant may move the concerned Special Court for appropriate remedy, wherein the Prosecution Complaint is pending and his property has been made part and parcel of that complaint, in accordance with law.

Summary

Issues:
1. Appeal against order for attachment of immovable property under PMLA, 2002.

Analysis:
1. The appellant filed an appeal under Section 26 of the Prevention of Money Laundering Act, 2002 against the order confirming the attachment of immovable property. The Enforcement Directorate provisionally attached the property based on allegations of money laundering related to FIRs and investigations involving the appellant.

2. The appellant, a government servant, contended that the ECIR against him was false and that he had purchased the property in question following due procedures. The Enforcement Directorate justified the attachment under PMLA provisions. The Adjudicating Authority confirmed the attachment, leading to the appeal.

3. The Adjudicating Authority's order confirmed the attachment, citing the involvement of the properties in money laundering. The appellant argued based on legal amendments and factual grounds to set aside the confirmation order, highlighting the absence of a Prosecution Complaint against him.

4. The respondent acknowledged the absence of a Prosecution Complaint against the appellant but stated that the property was part of a complaint against another individual. The appellant's property being included in the complaint without his involvement raised concerns about due process and defense rights.

5. The Tribunal considered the legal amendments and factual issues, noting the absence of a pending Prosecution Complaint against the appellant. The appeal was allowed, setting aside the impugned order and advising the appellant to seek remedies in the Special Court where the complaint was pending.

6. The Tribunal emphasized the importance of legal amendments limiting the duration of property attachment post-confirmation and upheld the appellant's right to defend his case properly. The decision was made in light of the legal provisions and the specific circumstances of the case, granting relief to the appellant without costs.