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TMI Blog2017 (8) TMI 964X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. The respondent, therefore, shall handover the possession of the vehicle to the appellant forthwith who shall not dispose of the said vehicle in any manner directly or indirectly during the pendency of the appeal. The respondent is at liberty to move such application as provided under sub rule 7 of PMLA before the Special Court. If such application is filed it would be decided accordingly. - MP-PMLA-2095/JL/2015 (Stay) & FPA-PMLA-1062/JL /2015 - - - Dated:- 19-5-2017 - Justice Manmohan Singh Chairman, Shri G.C. Mishra Member And Shri B. K. Bansal Member For the Appellant : Shri Atul Kumar, Advocate Shri Abhimanyu Sharma, Advocate For the Respondent : Shri S.A. Saud, Advocate JUDGEMENT MP-PMLA-2095/JL/2015 (Stay) 1. The appellant who was arrayed Defendant No. 9 in the O.C. 473/2015 has filed the present appeal challenging the impugned order dated 3rd September, 2015. Admittedly one of his movable property i.e. Srl. No. 6 was attached. The details of which is mentioned are below: Sr. No. Identification Details Description of f Properties Acquisition Date Acquisition Cost ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken the possession of the vehicle. Learned Counsel submits that the said action of the respondent is not proper and contrary to the procedure prescribed under law. It is argued that if the respondent under the PMLA proceedings intends to take the possession of the attach vehicle in question, the respondent first has to take the leave of the Special Court. But no steps were taken by the respondent who failed to approach or to file any application before the Special Court. The learned counsel for the appellant has also referred Rule 7 of PMLA (taking possession of the attachment or frozen property confirmation by the Adjudicating Authority) Rules, 2013. 6. The prayer of the appellant is strongly opposed by the learned counsel for the respondent who has referred the decision of Bombay High Court in first appeal no. 967 of 2010 entitled OM Prakash Daulat Ram Nogaja Vs. Union of India Anr. which reads as under :- 15. It was next contended that, out of ₹ 6,25,40,171/- lying in various bank accounts, a sum of ₹ 4,23,85,083/- was the amount that was already frozen by the Narcotics Control Bureau on 16th June, 2006 under the NDPS Act, as per the direction in terms of o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of that property, but also secure the availability of that property for confiscation at the end of the trial against the accused persons relating to Scheduled Offence. 7. Counsel for the respondent has referred another decision of Division Bench in the case of Brizo Reality Company Pvt. Ltd. Vs. Aditya Birla Finance Ltd., Mumbai reported in 2014(4) Mh. L.J. 849 para 7 7. The contention that the show cause notice does not state that the Adjudicating Authority has reason to believe that the petitioner has committed an offence under section 3 of the Act or is in possession of proceeds of crime is not well founded. The notice has for all practical purposes, adopted, incorporated the complaint in toto. The notice, fairly read, indicates that the Adjudicating Authority, on the basis of the material in the complaint had reason to believe that the ingredients necessary for the attachment order existed. So read, it follows that the Adjudicating Authority stated in the show cause notice that he had reason to believe that there existed the factors necessary to serve the notice. The reasons, in turn, stand incorporated in the notice from the complaint. It is apparent that the notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r respectable person willing to undertake the responsibility of its custody and to produce it when required by the Court. The aforesaid rule also empowers the attaching officer to keep the animals attached in the custody of a sapurdar or any other respectable person. Attachment by actual seizure involves a change of possession from the judgment-debtor to the court, and the rule deals only with the liability of the attaching officer to the court. Whether the amin keeps the buffaloes in his custody or entrusts them to a sapurdar, the possession of the amin or the sapurdar is in law, the possession of the court and, so long as the attachment is not raised, the possession of the court continues to subsist. Would it make any difference in the legal position if the sapurdar, for convenience or out of necessity, keeps the said animals with a responsible third party? In law the said third party would be a bailee of the sapurdar. Would it make any difference in law when the bailee happens to be the decree-holder? Obviously it cannot, for the decree holder s custody is not in his capacity as decree-holder s custody is not in his capacity as decree-holder but only as the bailee of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proceedings so held, do not affect the interest in the hands of the Receiver who holds the property for the benefit of the party who, ultimately, may be adjudged by the Court to be entitled to the same. The learned counsel for the respondent was not able to bring to our notice any ruling of any Court in India, holding that a sale held without notice to the Receiver or without the leave of the Court appointing the Receiver in respect of the property, is void ab initio. In the instant case, we do not think it necessary to go into the question raised by the learned counsel for the respondents that a sale of a property in the hands of the Court through its Receiver, without the leave of the Court, is a nullity. The American Courts appear to have taken the view that such a sale is void. In our opinion, it is enough to point out that the High Court took the view that the sale was voidable and could be declared illegal in a proper proceeding or by suit. We shall assume for the purposes of this case that such a sale is only voidable and not void ab initio. 8. On the assumption that the sale held in this case without the leave of the Court and without notice to the Receiver, is onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that when the property becomes Custodia Legis, the owner of such property loses all its right and interest therein. Any authority who wished to take the possession of immovable or movable property for the offences committed by the accused in other proceedings, the authorize officers has to approach the respective court who is in custody of the said property. 13. Even otherwise the decisions referred by the counsel for the respondent have no bearing in the binding decision of the Supreme Court [AIR 1958 S.C. 725] in the case of Kanhaiyalal (Supra) as in the judgment referred by Mr. Saud has not been discussed or referred the decisions of the Supreme Court wherein it was mandated that if the possession and management of a receiver had been appointed by the court, such attachment is illegal without leave of that court. 14. As the decision of the Supreme Court is always binding in nature and higher court decision has to be followed. The same cannot be ignored even if due to oversight or that it has not come to the notice of the High court who have taken different views. There is no valid ground if raise by any party that the Supreme Court decision has not been referred by counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15. If the view taken by the High Court is accepted, in our opinion, there would be total chaos in this country because in that case there would be no finality to any order passed by this Court. When a higher court has rendered a particular decision, the said decision must be followed by a subordinate or lower court unless it is distinguished or overruled or set aside. The High Court had considered several provisions which, in its opinion, had not been considered or argued before this Court when CA No. 4343 of 1988 was decided. If the litigants or lawyers are permitted to argue that something what was correct, but was not argued earlier before the higher court and on that ground if the courts below are permitted to take a different view in a matter, possibly the entire law in relation to the precedents and ratio decidendi will have to be rewritten and, in our opinion, that cannot be done. Moreover, by not following the law laid down by this Court, the High Court or the subordinate courts would also be violating the provisions of Article 141 of the Constitution of India. 15. The present case is better footing in view of specific provision of rule 7, the procedure stipula ..... X X X X Extracts X X X X X X X X Extracts X X X X
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