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TMI Blog2015 (9) TMI 865X X X X Extracts X X X X X X X X Extracts X X X X ..... o.2. 2. Since both these petitions have arisen out of the same show cause notice and involves common question of law therefore, both the petitions are taken up together. 3. The facts as borne out from W.P.(C) No. 8266/2015 are that on 08.03.2014, officers of Directorate of Revenue Intelligence (for short "DRI"), Kolkata intercepted one Toyota Fortuner Car on Taki road, near Beliaghata Bill, North 24 Parganas. At the time of interception the petitioner‟s husband (petitioner in 8359/2015) was present in that car and the same was being driven by Mr. Mokesed Mondal. A total 44.659 Kgs of Gold of foreign origin (containing 12 pcs. of gold Bars and 280 pcs. of Gold Biscuits) valued at 13.56 crores was recovered and seized by the officers of DRI. A show cause notice under Section 124 of the Customs Act, 1962 was issued to the petitioner‟s husband and to Mr. Moksed Mandal. Thereafter, a case under the PMLA was initiated against the petitioner‟s husband and the same is now pending before the learned Chief Judge City Sessions Court and Special Court under PMLA. On 21.05.2015 the petitioner received a provisional attachment order, in terms of which, she was informed that v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceeds of crime including its concealment, possession, acquisition or use and projecting or claiming] it as untainted property shall be guilty of offence of money-laundering. Section 5 - Attachment of property involved in money-laundering (1) Where the Director or any other officer not below the rank of Deputy Director authorised by the Director for the purposes of this section, has reason to believe (the reason for such belief to be recorded in writing), on the basis of material in his possession, that- (a) any person is in possession of any proceeds of crime; and (b) such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime under this Chapter, he may, by order in writing, provisionally attach such property for a period not exceeding one hundred and eighty days from the date of the order, in such manner 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity has reason to believe that any person has committed an [offence under section 3 or is in possession of proceeds of crime] it may serve a notice of not less than thirty days on such person calling upon him to indicate the sources of his income, earning or assets, out of which or by means of which he has acquired the property attached under sub-section (1) of section 5, or, seized [or frozen] under section 17 or section 18, the evidence on which he relies and other relevant information and particulars, and to show cause why all or any of such properties should not be declared to be the properties involved in money-laundering and confiscated by the Central Government: Provided that where a notice under this sub-section specifies any property as being held by a person on behalf of any other person, a copy of such notice shall also be served upon such other person: Provided further that where such property is held jointly by more than one person, such notice shall be served to all persons holding such property. (2) The Adjudicating Authority shall, after- (a) considering the reply, if any, to the notice issued under sub-section (1); (b) hearing the aggrieved person an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a trial under this Act, the Special Court finds that the offence of money-laundering has not taken place or the property is not involved in money-laundering, it shall order release of such property to the person entitled to receive it. (7) Where the trial under this Act cannot be conducted by reason of the death of the accused or the accused being declared a proclaimed offender or for any other reason or having commenced but could not be concluded, the Special Court shall, on an application moved by the Director or a person claiming to be entitled to possession of a property in respect of which an order has been passed under sub-section (3) of section 8, pass appropriate orders regarding confiscation or release of the property, as the case may be, involved in the offence of money-laundering after having regard to the material before it.] [(8) Where a property stands confiscated to the Central Government under sub-section (5), the Special Court, in such manner as may be prescribed, may also direct the Central Government to restore such confiscated property or part thereof of a claimant with a legitimate interest in the property, who may have suffered a quantifiable loss as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person as a result of criminal activity relating to a scheduled offence is proceeds of crime. 7. Section 3 of PMLA, prescribes the offence of money laundering and its punishment is prescribed under Section 4 of PMLA. To attract the provisions of Section 3 of PMLA, it is necessary that the person is indulged in proceeds of crime. Further, in terms of Section 5 of PMLA where the Director or any other officer not below the rank of Deputy Director authorised by the Director, has reason to believe, on the basis of material in his possession that any person is in possession of proceeds of crime and such proceeds of crime are likely to be concealed, transferred or dealt with in any manner, he may provisionally attach such proceeds of crime based on the said material reasons to believe that are to be given in writing. After every order of such attachment the Director, or any other officer not below the rank of Deputy Director, shall, immediately after attachment under sub-section (1), forward a copy of the order, along with the material in his possession, to the adjudicating authority. The provisional attachment under Section 5(1) of PMLA is only a cautious and tentative step and only be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, having regard to the facts of the case, has discretion to entertain or not to entertain a writ petition. The very amplitude of the jurisdiction exercised under Article 226 of the Constitution of India demands that it will, ordinarily, be exercised subject to certain self-imposed limitations, and is not to be issued as a matter of course. 11. In the instant case, the petitioners have received show cause notice dated 19.06.2015 under Section 8 of the PMLA in O.C. No. 501/2015 and the provisional attachment order dated 21.05.2015 under Section 5 of the PMLA issued by the respondent No.2. The action of coming to this Court is premature and therefore, this Court is of the view that since the petitioners have effective and efficacious remedy under PMLA, necessitating institution of the petition by invoking extraordinary jurisdiction of this Court is not appropriate at this stage. If this Court were to enter into the merits of this case at this stage, it would amount to scuttling the statutorily engrafted mechanism i.e. PMLA. 12. In view of the aforesaid discussion, I am not inclined to entertain the present petitions and the same are hereby dismissed. C.M. Appl. No.17414/2015 in W ..... X X X X Extracts X X X X X X X X Extracts X X X X
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