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TMI Blog2017 (8) TMI 860X X X X Extracts X X X X X X X X Extracts X X X X ..... e the reply before the Adjudicating Authority within three weeks from today irrespective of the fact that he is in judicial custody. He could given the instructions as already given in the fresh matter to his counsel so that both the matters may be decided together. We also agree that the submissions of the learned counsel for the respondent that in ground (B) that the appellant has not made the correct statement that during the entire tenure of the proceedings before the Adjudicating Authority he was in judicial custody. As a matter of fact he was on bail between 1st January, 2015 to 5th January, 2015. It might have happened due to oversight as alleged by the counsel but all the appeal, papers were signed by him. He is warned to be careful in future. To balance the case of the two sides, cost of ₹ 10,000/- is imposed on the appellant - MP-PMLA-1663/AHD/2015 (Stay) FPA-PMLA-870/AHD/2015 - - - Dated:- 10-1-2017 - Justice Manmohan Singh Chairman, Shri Kaushal Srivastava Member And Shri Anand Kishore Member For the Appellant : Shri Sumit R. Sharma, Advocate For the Respondent : Shri Vikas Garg, Advocate JUDGMENT Justice Manmohan Singh Chairman FPA-PMLA- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beyond his authority and deliberately did not sending the such sanctioned orders to Deputy Secretary, Revenue Department, Gandhinagar, incurring financial loss to the tune of ₹ 1,20,30,824/- to State Government. The charge-sheet in regard to FIR No. 03/2010 dated 31.03.2010 is to be filed by the concerned Investigating authority who had registered the predicate offence and not the Enforcement Directorate, Ahmedabad. 6. On basis of the registration of the above mentioned ECIR, the Investigation under Prevention of Money Laundering Act, 2002 were initiated by issuing Summons to various persons under Section 50 of the Prevention of Money Laundering Act, 2002 and the statement of various persons including Mr. Sunil Milak were recorded. Mr. Sunil Milak in his statements dated 02.07.2013 24.07.2014 had deposed the facts best known to him as regards the formation of M/s Value Packaging, Gandhidham, the investment by various partners and payment given by M/s Value Packaging to Smt. Shyamal Sharma the wife of Mr. Pradeep Sharma. In addition to that as per the case of the respondent the Bank Statements of Account no. 05734010000310 of M/s Value Packaging Oriental Bank of Commerce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Adjudicating Authority because of his judicial custody. However, the learned Adjudicating Authority, proceeded to pass the impugned order without even referring to the letters written by the appellant despite the same having been received with the office of the learned Adjudicating Authority. It is also stated in the appeal that the learned Adjudicating Authority had ample time to take a decision on the provisional attachment order. As per the provisions of the Act, the learned Adjudicating Authority had time up to 28/03/2015 at least, to decide on the issue. However, for reasons best known, the learned Adjudicating Authority decided the matter ex-parte without giving any opportunity to the appellant to present his case and to defend himself. Even on merits, it is alleged that the learned Adjudicating Authority has materially erred in appreciating the materials supplied by the Enforcement Directorate to the learned Adjudicating Authority, there is no material produced before the learned Adjudicating Authority that suggests that the appellant made any payment whatsoever towards the purchase of the Gandhinagar land in question. And as far as the repayment of the loan taken for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of PMLA is that the person ought to be in possession of any proceeds of crime i.e. any property derived or obtained directly or indirectly as a result of criminal activity of a scheduled offence or the value of such property. And in the present case, the impugned property cannot be termed as a proceeds of crime by any stretch of imagination. It is stated that the impugned order is contrary to the evidence on record and does not take into consideration the material facts presented before the Ld. Adjudicating Authority. The property does not satisfy the requirements of being a proceed of crime because: a. The respondent authority has collected evidence that has been created to suit the prosecution case. The documents attached hereto clearly suggests that the respondent authority has maliciously procured and relied upon false information with the sole objective of being able to establish its case. A bare perusal of the returns of the partnership firm filed with the Income Tax Department show that the reliance of the respondent authority on the statement and information provided by Mr. Sunil Millak is false. The amount paid to the wife of the appellant by the firm was legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India. It is further submitted on behalf of the appellant that even otherwise no prejudice would be caused to the respondent in case the impugned order is set aside and the present proceedings be remanded back to the Adjudicating Authority who is hearing the matter now in connection with the remaining 65% of the same property being provisional attachment order No. 1 of 2016 dated 26.09.2016. 14. Both the counsels have only argued the matter on the aspect of rules of natural justice. The contentions of the appellant are that principle of natural justice has not been complied by the Adjudicating Authority and the appellant was deprived of the right to file the reply and to be heard in the matter on merits. On the other hand the counsel for the respondent submits that opportunity was granted to the appellant to file the reply. Even the matter was adjourned for 12th January, 2015 at the request of the appellant. Once he was on bail for the period of 1st January, 2015 to 5th January, 2015 he could have very easily given the instructions to his counsel to make the draft and file reply before the Adjudicating Authority when the matter was fixed for hearing on 12th January, 2015. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot attached immediately under this Chapter, the non- attachment of the property is likely to frustrate any proceeding under this Act. (2) The Director, or any other officer not below the rank off Deputy Director, shall, immediately after attachment under sub-section (1), forward a copy of the order, along with the material in his possession , referred to in that sub-section, to the Adjudicating Authority, in a sealed envelope, in the matter as may be prescribed and such Adjudicating Authority shall keep such order and material for such period as may be prescribed. (3) Every order of the attachment made under sub-section (1) shall cease to have effect after the expiry of the period specified in that sub- section or on the date of an order made under sub-section (2) of section 8, whichever is earlier. (4) Nothing in this section shall prevent the person interested in the enjoyment of the immoveable property attached under sub-section (1) from such enjoyment. Explanation- for the purposes of this sub-section person interested , in relation to any immoveable property, includes all person claiming or entitled to claim any interest in the property. (5) The Direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng, confirm the attachment of the property made under sub-section (1) of section 5 of retention of property or [record seized or frozen under section 17 or section 18 and record a finding to that effect, whereupon such attachment or retention or freezing of the seized or frozen property] or record shall- (a) continue during the pendency of the proceedings relating to any [offence under this Act before a court or under the corresponding law of any other country, before the competent court of criminal jurisdiction outside India, as the case may be; and] (b) become final after an order of confiscation is passed under sub-section (5) or sub-section (7) of section 8 or section 58B or sub-section (2A)of section 60 by the Adjudicating Authority] (4) Where the provisional order of attachment made under sub-section (1) of section 5 has been confirmed under sub-section(3), the Director or any other officer authorized by him in this behalf shall forthwith take the [possession of the property attached under section 5 or frozen under sub- section (1A) of section 17, in such manner as may be prescribed: (5) Where on conclusion of a trial of an offence under this Act, the Spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Adjudicating Authority, Court No. 2, Room No.-20 Jeevandeep Building, Parliament Street, New Delhi-110001. Sir, Subject: OC/No./368/2014 Vide my letter dated 3/12/14, I had requested your kind self that as I was in judicial custody since 30/9/2014. I would not be in a position to either present or appoint an advocate to represent my case before your Learned Authority. I was granted 7 days interim bail to attend to my 84 year old ailing mother, as she was diagnosed with Cervical Cancer. During this period I have received intimation from the ld. Authorities that the date for hearing on my matter scheduled on 12th January, 2015 but condition imposed upon me restrict my movement outside the boundaries of Gujarat and stipulate my visits to nearby Police Station to mark my attendance. Given this situation I have not been able to travel to Delhi to appoint an Advocate for the aforesaid matter. I once again reiterate the fact that the case is made out by ED needs an advocate with adequate skills and specialization to handle such cases. My petition for seeking bail is on and I am hopeful to come to know about the outcome during the month of Jan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l it is incorrectly mentioned by the appellant that during the entire period of the proceedings before the Adjudicating Authority he was in judicial custody. The counsel submitted that as a matter of fact he was granted interim bail between 1st January, 2015 to 5th January, 2015. The appellant could have authorized the counsel to file the reply and argue the matter before the Adjudicating Authority. The said statement in ground (B) is apparently incorrect. The appeal should be dismissed on this ground itself. 21. We have considered the arguments on behalf of the respondent but the fact remains that when the hearing of the matter was kept for 31st December, 2014 for the first time by the Adjudicating Authority, the appellant was in judicial custody. The same was adjourned to 12th January, 2015. The appellant has admitted that on 1st January, 2015, letter for hearing fixed on 12th January, 2015 was served. The appellant was on interim bail between 1st January, 2015 to 5th January, 2015. He was to attend his mother who was suffering from cancer and at the same time he was also to appear before the police station everyday. In such circumstances within five days he was not able to gi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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