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2019 (5) TMI 1462 - AT - Money LaunderingOffence under PMLA - no Provisional Attachment Order confirmed within 180 days as prescribed under the Act - HELD THAT - In the present case in terms of Section 5 (1) of the PMLA no Provisional Attachment Order has been confirmed within 180 days as prescribed under the Act which is mandatory from the date of the issuance of the provisional attachment order i.e. 28th March, 2018 bearing No. 08/2018, as such the provisional attachment order was expired on 24.09.2018 and after the expiry of the such period the provisional attachment order is not to be confirmed and the Adjudicating Authority was having no option but to return the file to the complainant, with directions for release of the properties attached. No adjournment during the proceedings for adjournment of hearing was sought by the counsel of the appellants as alleged. Section 5 (1) mandates that properties cannot be attached for more than 180 days, otherwise such proceedings are entitled to be dropped, as the prescribed period of time is mandated in the statute itself. It is a Special Act. The Section 5(1) has to be construed strictly. The said period of time cannot be extended under any circumstances. The prescribed period of time stipulated in the section of any statutes cannot be extended under any circumstances. In the present case, under section-5 provides that the judgement proceeding shall be completed within 180 days. The same has not happened despite of the direction issued by the Hon ble Court, therefore, the attachment does not exist. The impugned order has been passed without application of mind. Thus, the same is set-aside. The provisional attachment order is also quashed by allowing the present appeals. Admittedly, the FIR/ RC was registered on 23rd September, 2003. The case of appellants was that after filing the charge sheet the Act of PMLA cannot be invoked as such whole exercise is without jurisdiction. The said fact was not mentioned in ECIR. Reasons to believe are not produced. It was the duty of the authorised officer to mention the date of registering the FIR. This Tribunal does not wish to express any opinion as to whether it is deliberately done or it was due to mistake as the provisions of schedule offences were incorporated only on 1.6.2009. It is pertinent to mention that the appellants have raised many other issues, however, this Tribunal has since decided the main issue in hand, therefore, there is no need to discuss the other issues.
Issues Involved:
1. Validity of the Provisional Attachment Order under Section 5 of the Prevention of Money Laundering Act, 2002. 2. Compliance with the 180-day period for confirmation of the Provisional Attachment Order. 3. Applicability of amendments to Section 5 of the PMLA. 4. Jurisdictional issues concerning the timing of the FIR and the applicability of PMLA. 5. Additional issues raised by the appellants. Detailed Analysis: 1. Validity of the Provisional Attachment Order under Section 5 of the Prevention of Money Laundering Act, 2002: The Tribunal addressed the appeals against the order dated 29.01.2019 by the Adjudicating Authority under Section 26 of the PMLA. The provisional attachment order (No. 08/2018) was issued on 28.03.2018, and the complaint was filed on 19.04.2018. A show cause notice was subsequently issued on 2.5.2018, and a reply was filed by the appellants on 5.7.2018. The Tribunal noted that the High Court allowed the proceedings before the Adjudicating Authority to continue but restricted the implementation of any orders passed. 2. Compliance with the 180-day period for confirmation of the Provisional Attachment Order: The Tribunal emphasized that Section 5(1) of the PMLA mandates that provisional attachment orders must be confirmed within 180 days, failing which the proceedings must be dropped. The provisional attachment order in question expired on 24.09.2018, and the Adjudicating Authority passed the final order on 29.01.2019, well beyond the 180-day limit. The Tribunal cited the Supreme Court's judgment in ONGC v. Gujarat Energy Transmission Corporation Ltd., which underscored the mandatory nature of statutory time limits. 3. Applicability of amendments to Section 5 of the PMLA: The Tribunal discussed the amendment to Section 5 introduced by Act 15 of 2003, which allows for the exclusion of the period during which proceedings are stayed by a court from the 180-day limit. However, this amendment came into effect on 29th March 2018, and the provisional attachment order in this case was issued on 28.03.2018, rendering the amendment inapplicable. The Tribunal reiterated that statutory time limits cannot be extended under any circumstances. 4. Jurisdictional issues concerning the timing of the FIR and the applicability of PMLA: The Tribunal noted that the FIR was registered on 23rd September 2003, and the charge sheet was filed on 5.7.2005. The appellants argued that the PMLA could not be invoked retroactively, as the Act came into force after the FIR was registered. The Tribunal observed that the ECIR did not mention the date of the alleged offense, which is a crucial detail. The Tribunal refrained from expressing an opinion on whether this omission was deliberate or a mistake, noting that the provisions of scheduled offenses were incorporated into the PMLA only on 1.6.2009. 5. Additional issues raised by the appellants: The Tribunal acknowledged that the appellants raised several other issues but chose not to address them, given that the main issue concerning the 180-day limit had already been decided in favor of the appellants. Conclusion: The Tribunal set aside the impugned order and quashed the provisional attachment order, allowing the appeals. It concluded that the attachment did not exist due to the failure to confirm the provisional attachment order within the mandatory 180-day period. The Tribunal disposed of all appeals and pending applications without costs.
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