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TMI Blog2015 (11) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicating authority. Needless to mention that investigation will continue and in the event the same is completed before a decision is taken by the adjudicating authority, let no effect be given to the order to be passed till the decision of the adjudicating authority. - The object of the 2002 Act is to prevent money laundering and confiscation of property derived from such money laundering or proceeds of crime. It is only in furtherance of the object of the 2002 Act that the letter dated 19th September, 2014 has been issued so that mischief if any is suppressed and the object of the legislature advanced. - Petition disposed of. - W. P. NO. 28728 (W) OF 2014 - - - Dated:- 25-11-2014 - Nadira Patherya, J. For the Appellant : Mr. Kishore Dutta, Ms. Mousumi Bhattacharyya, Mr. Anirban Ray, Ms. Sumita Shaw, Ms. Saswati Chatterjee, Ms. Sutapa Sanyal, Mr. Aiman Abdullah, Mr. Sujit Singh, Mr. Amrit Lal Chatterjee, Mr. Agnir Sinha, Mr. Arup Nath Bhattacharyya. For the Respondent :Mr. Asit Kumar Bhattacharya, Mr. Mukul Lahiri, Mr. H.L. Shukla, Mr. P. Deb., Mr. Somnath Bose, Mr. Bhaskar Prasad Banerjee, Mr. Chittpriya Ghosh, Mr. Bishwambher Jha. JUDGEMENT Patherya J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... September, 2014 bad, as without deciding the preliminary objection raised as directed by the order dated 28th July, 2014, the adjudicating authority could not have passed the order on merits. After passing of the said order dated 10th September, 2014 a request was made by the Enforcement Directorate to freeze the bank accounts of the petitioner. This request is nothing but a mandate to the banks to prohibit withdrawal. The said direction can either be passed under Section 5 of the 2002 Act or Section 17 of the 2002 Act, but the said has not been passed thereunder. Section 5 permits provisional attachment of the property involved in money laundering upon the officer having reason to believe which reason must be recorded in writing that the person is involved in proceeds of crime. Section 17 also permits search and seizure provided the officer has reasons to believe which reasons must also be recorded in writing. Therefore, the statute has given protection to the writ petitioner which has not been followed. The request made is de hors the provisions of the 2002 Act and is not under ECIR/KLZO/02/2014 but independent thereof and of which proceeding the petitioner has no notice. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 19th September, 2014 is justified. Reliance is also placed on AIR 1980 SC 953. As there was no freezing order in the Sahara case, the depositors have been deprived of their money till date. Therefore, this application merits no order and be dismissed. In reply Counsel for the writ petitioner submits that Section 54 of the 2002 Act is not to apply. For the enforcement of the 2002 Act there must be a proceeding which is to be preceded by a reason to be recorded in writing. In the instant case there is no reason recorded in writing and the request is nothing but a mandate de hors the ECIR. The reasoning must be either of the authority or the bank and if it is based on SEBI complaint, then the said request emanates from the ECIR which also finds mention in the letter dated 19th September, 2014. In the ECIR the property suspected to be proceeds of crime is not mentioned as the said is to be ascertained upon investigation. Therefore, proceedings will have to be initiated and unless the said is initiated the provisions of the 2002 Act will not apply. The request is a mandate without statutory backing and through submission the scope of investigation is sought to be extend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed and no finding given in respect thereof. This, therefore, is contrary to the order dated 28th July, 2014 passed by the Appeal Court in AST 345 of 2014 with ASTA 246 of 2014. As the merits of the case has been considered, and a finding given in respect thereof, this, therefore, renders the order dated 10th September, 2014 bad and liable to be set aside. Accordingly, the order dated 10th September, 2014 is set aside and the adjudicating authority directed to consider the issue regarding applicability of the Act and the preliminary objections raised before deciding any other issue as directed by order dated 28th July, 2014. The next issue that needs to be considered is the correctness of the letter dated 19th September, 2014. While the petitioner contends that the request is a mandate but, from a reading of the said letter the Directorate has requested the concerned banks to prohibit withdrawal or freeze the petitioner's accounts. The reason for such request has also been stated in the said letter, namely, on going investigation under the 2002 Act and to prevent siphoning of funds by the writ petitioner. It is true that the provisions of Section 5 or Section 17 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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