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TMI Blog2019 (4) TMI 1085X X X X Extracts X X X X X X X X Extracts X X X X ..... of being heard, the appellant Tribunal shall pass the order either to confirm the order of retention or to modify or setting aside the same. The prescribed period for filing the prosecution complaint is ninety days. In the present case, more than one year and ten months have been passed, but no prosecution complaint has been filed. The provisions of section 8 (3) (a) provides that the attachment or retention of property or record seized shall continue during the investigation for a period not exceeding ninety days. The said prescribed period has already been expired as more than a year has already elapsed but the properties and records have not been returned so far which is in clear violation of the provisions of PMLA. No prosecution complaint has been filed against the Appellant. Order: - a) As far as Indian Currency amounting to ₹ 4,25,000/- is concerned, in the absence any prima facie material placed by the respondent and being the appellant discharging his burden, we are satisfied that the said money cannot be retained further. The said currency of ₹ 4,25,000/- seized was part of the withdrawal of ₹ 5,00,000/- made by the father of the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to the case set up by the respondent against the appellant due to the following reasons:- i. The currency and the Hard Drive do not belong to the appellant. The currency is that of the Chartered Accountancy firm of the father of the appellant [ i.e. R.C. Kapoor] and the Hard Drive is that of the appellant s daughter. ii. The documents pertaining to the office premises of the appellant pertain to a period of 2015 which is much prior to the first alleged meeting of the appellant with Sanjay Bhandari. 4. Admittedly, an investigation in this case was initiated on the basis of notice dated 22.09.2016 issued by the Income Tax Department under Black Money Act, 2015 and letter dated 09.02.2012 received from Additional Director of Income Tax against one Sanjay Bhandari for not disclosing his foreign assets in the shape of foreign bank accounts and foreign immovable properties/ entities for the purpose of taxation before the income tax authorities. 4.1 On 07.02.2017, a search and seizure action was initiated by the Income Tax authorities against the appellant at IGI Airport Delhi and his office premises [ i.e. D-36, South Extension, Part-II]. 4.2 On 18.02.2017, a search w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal advice to Sanjay Bhandari. The case of the appellant is that the same is not correct. The said amount had been received by R.C. Kapoor Co. for professional services provided to M/s. Khanna Annadnam. Moreover, this assertion was not made by the respondent in its original Application under Section 17(4) of the Act. In the Rejoinder, the respondent did not deny that the Currency of ₹ 4,25,000/- was seized from the almirah in the bedroom of Mr. R.C. Kapoor on the Ground Floor or that the appellant resides on the First Floor. The respondent also did not deny that the appellant had met Sanjay Bhandari for the first time only in May, 2016. 8. On 26.5.2017, the Adjudicating Authority by the impugned order allowed the Application of the Respondent under Section 17[4] of the Act and allowed the retention of the documents/HDD/Indian Currency by the Enforcement Directorate. 9. Admittedly, the impugned order in the above said matter was passed on 26.05.2017. As of today, as per the appellant, no FIR is registered against him nor any charge-sheet is filed under the scheduled offence. 10. Section 17 of PMLA, 2002 reads as under: ―17 Search and seizu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose.] [(1A) Where it is not practicable to seize such record or property, the officer authorised under subsection (1), may make an order to freeze such property whereupon the property shall not be transferred or otherwise dealt with, except with the prior permission of the officer making such order, and a copy of such order shall be served on the person concerned: Provided that if, at any time before its confiscation under sub-section (5) or sub-section (7) of Section 8 or Section 58B or sub-Section (2A) of Section 60, it becomes practical to seize a frozen property, the officer authorised under sub-Section (1) may seize such property.] (2) The authority, who has been authorized under subsection( 1) shall, immediately after search and seizure [or upon issuance of a freezing order] forward a copy of the reasons so recorded along with material in his possession, referred to in that sub-section, to the Adjudicating Authority in a sealed envelope, in the manner, as may be prescribed and such Adjudicating Authority shall keep such reason and material for such period, as may be prescribed. (3) Where an authority upon information obtained during survey unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to the nearest gazetted officer, superior in rank to him, or a Magistrate: Provided that the period of twenty-four hours shall exclude the time necessary for the journey undertaken to take such person to the nearest gazetted officer, superior in rank to him, or Magistrate's Court. (4) If the requisition under sub-section (3) is made, the authority shall not detain the person for more than twenty-four hours prior to taking him before the Gazetted Officer superior in rank to him, or the Magistrate referred to in that sub-section: Provided that the period of twenty-four hours shall exclude the time necessary for the journey from the place of detention to the office of the Gazetted Officer, superior in rank to him, or the Magistrate's Court. (5) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge such person but otherwise shall direct that search be made. (6) Before making the search under sub-section (1) or sub-section (5) the authority shall call upon two or more persons to attend and witness the search, and the search shall be made in the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or frozen under sub-section (1A) of section 17 and the Investigating Officer or any other officer authorised by the Director in this behalf has reason to believe that any of such records are required to be retained for any inquiry under this Act, such records may if seized, be retained or if frozen, may continue to remain frozen, for a period not exceeding one hundred and eighty days from the day on which such records were seized or frozen, as the case may be. (2) The person, from whom records seized or frozen, shall be entitled to obtain copies of records. (3) On the expiry of the period specified under sub-section (1), the records shall be returned to the person from whom such records were seized or whose records were ordered to be frozen unless the Adjudicating Authority permits retention or continuation of freezing of such records beyond the said period. (4) The Adjudicating Authority, before authorising the retention or continuation of freezing of such records beyond the period specified in sub-section (1), shall satisfy himself that the records are required for the purposes of adjudication under section 8. (5) After passing of an order of confiscat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zure shall not be conducted unless in relation to the scheduled offence, a report has been forwarded to a Magistrate under section 157 of the Code of Criminal Procedure, 1973, (2 of 1974) or a complaint has been filed by a person, authorised to investigate the offence mentioned in the Schedule, before a Magistrate or court for taking cognizance of the schedule offence, as the case may be, or in cases where such report is not required to be forwarded, a similar report of information received or otherwise has been submitted by an officer authorized to investigate a scheduled offence to an officer not below the rank of Additional Secretary to the Government of India or equivalent being head of the office or Ministry or Department or unit, as the case may be, or any other officer who may be authorised by the Central Government, by notification, for this purpose. In the present case, no report against the appellant has been forwarded to the Magistrate. No complaint against the appellant was filed before a Magistrate. Nothing has been placed before us regarding compliance of third condition mentioned above. 17. A mere reading of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s bearing no. A 167, Shivalik, New Delhi. It has come on record that as stated in the said letter dated 18.4.2017, the appellant was residing at first floor of the premises. The said currency of ₹ 4,25,000/- seized was part of the withdrawal of ₹ 5,00,000/- made by the father of the appellant from the current account of his proprietorship firm M/s. R.C. Kapoor Co. bearing no. 1160199139 maintained with Central Bank of India, M-2, South Extension, Part-I vide Cheque No. 156406 dated 06.02.2017. Therefore, even on merit, the appellant is entitled to receive the said money forthwith. b) With regard to one Hard Disc Drive is concerned, without prejudice, the respondent is entitled to take a copy of the Hard Disc Drive, the same be returned to the appellant forthwith. c) As far as Receipt of ₹ 1,32,00,000/- and the possession letter dated 17.03.2015 pertaining to the office premises of the appellant are concerned, the original letter may be kept by the respondent, if so required, and a photo copy of the same be handed over to the appellant. 24. In the light of above, the present appeal is allowed. The impugned order dated 26th May, 2017 is set-aside per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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