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TMI Blog2015 (2) TMI 1196X X X X Extracts X X X X X X X X Extracts X X X X ..... ruary, 2015 to the petitioner calling upon it to indicate the source of income, earning or assets out of which or by means of which it had acquired the properties attached under sub-section (1) of Section 5 of the Act. Petitioner has been called upon to furnish the evidence in this regard. 4. By way of present writ petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.), petitioner has prayed for quashing of the complaint, show cause notice dated 3rd February, 2015 and the provisional attachment order dated 9th January, 2015. 5. At the outset counsel for the respondent has raised objections regarding maintainability of writ petition, in view of the alternative remedies available to the petitioner under the Act. 6. Section 5 of the Act reads as under:- "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interested", in relation to any immovable property, includes all persons claiming or entitled to claim any interest in the property. 5. The Director or any other officer who provisionally attaches any property under subsection (1), shall, within a period of thirty days from such attachment, file a complaint stating the facts of such attachment before the Adjudicating Authority." 7. Section 8 of the Act reads as under:- "8. Adjudication.- 1. On receipt of a complaint under sub-section (5) of section 5, or applications made under sub-section (4) of section 17 or under sub-section (10) of section 18, if the Adjudicating Authority has reason to believe that any person has committed an offence under section 3 or is in possession of proceeds of crime, he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be prescribed: Provided that if it is not practicable to take possession of a property frozen under sub-section (1A) of Section 17, the order of confiscation shall have the same effect as if the property had been taken possession of. 5. Where on conclusion of a trial of an offence under this Act the special court finds that the offence of money-laundering has been committed, it shall order that such property involved in the money-laundering or which has been used for commission of the offence of money-laundering shall stand confiscated to the Central Government. 6. Where on conclusion 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 cound 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated from the crime money. Thus, it is necessary for the High Court to intervene in exercise of powers under Article 226 of the Constitution of India, and quash the provisional attachment order and the consequential proceedings. Reliance has been placed on Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Ors. (1998) 8 SCC 1 and Calcutta Discount Co. Ltd. vs. Income-Tax Officer, Companies District I, Calcutta and Another, AIR 1961 SC 372 which are in the context of different facts and of no help to the petitioner in this case. Per contra, counsel for respondent nos. 1 and 2 has contended that facts have to be ascertained by the Adjudicating Authority on the evidence to be produced by the parties. Complete mechanism has been envisaged under the Act of adjudication of disputed facts. It is further contended that High Court would refrain from interfering with the Provisional Attachment order as the petitioner has full opportunity to place all the material evidence before the Adjudicating Authority to oppose the confirmation of provisional attachment order. 11. A perusal of Section 5 of the Act makes it clear that the order passed under sub-section 1 is a provisional meas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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