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TMI Blog2019 (5) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... in a sealed cover. It is clear from the reading of Sections 17 to 21 that outer limit upto the date for deciding the application for retention of property is 180 days from the date of seizure of any property or records. The said period is not extendable as per the scheme of the Act, unless the prayer for retention is allowed and subject to filling of prosecution complaint within 90 days from the date of passing the retention order. No doubt, once the prayer is allowed, the person concerned/aggrieved party of such order, is entitled to file the appeal under Section 26 of the Act. The same shall be heard and after giving an opportunity 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 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 prosecu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted searches u/s 132 of the Income Tax Act, 1961 covering 25 premises of the abovementioned group entities at Mumbai, Vadodara and Ooty. During the course of search, certain incriminating material including one diary of 2011 was found and seized. This diary contained certain transactions relating to the public servants for the period from 01.01.2011 to 28.06.2011. c). It was alleged in the FIR that Sandesara Group had been acting as a depository for receiving funds on behalf of the public servants and for further delivery to them at the place of convenience. d). It was also revealed in the FIR that the identity of the person who was maintaining the diary and from whose custody, it was seized was not brought on record. As per the appraisal report, one Ajay Panchal was identified as the person maintaining the diary but he was not examined u/s 131 of the Income Tax Act. e). On the basis of the aforesaid FIR, ECIR vide F.No. ECIR/HQRs/15/2017 was taken-up for investigation by the Directorate of Enforcement, New Delhi on 31.08.2017. f). It was alleged in the OA under challenge that during the investigation, statement of one Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crime. iii) as per the provisions of section 21(2), respondent is entitled to have copies of seized material including mirror/dummy images contained in the devices, iv) the nature of document and material as to whether those are of personal nature or otherwise, can be appreciated only after its complete scrutiny by DE, v) it is not in doubt that Angadia Service is a permissible activity, however it needs to be seen that such service is not exploited or misused for money laundering, vi) the proceeding at present is in the form of OA. As of now, there is nothing in the application which affects any substantial right of the respondents like attachment and/or confiscation of the properties of the respondents and/or threatened arrest. The application is simply for retention of seized documents/digital/evidence/cash so that investigation can be carried out without any obstruction. 5. In para 14 of the order, held that I am satisfied that the seized documents/digital evidence and properties are required for the purpose of adjudication u/s 8 of PMLA. I am also satisfied that the seized documents/properties are i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in his possession, has reason to believe (the reason for such belief to be recorded in writing) that any person - (i) has committed any act which constitutes money-laundering, or (ii) is in possession of any proceeds of crime involved in money-laundering, or (iii) is in possession of any records relating to money-laundering, (or) (iv) is in possession of any property related to crime] then, subject to the rules made in this behalf, he may authorize any officer subordinate to him to - (a) enter and search any building, place, vessel, vehicle or aircraft where he has reason to suspect that such records or proceeds of crime are kept; (b) break open the lock of any door, box, locker, safe, almirah or other receptacle for exercising the powers conferred by clause (a) where the keys thereof are not available; (c) seize any record or property found as a result of such search; (d) place marks of identification on such record or [property, if required or] make or cause to be made extracts or copies therefrom; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obtained during survey under section 16, is satisfied that an evidence shall be or is likely to be concealed or tampered with, he may, for reasons to be recorded in writing, enter and search the building or place where such evidence is located and seize that evidence. Provided that no authorization referred to in subsection (1) shall be required for search under this subsection. (4) The authority seizing any record or property under sub-Section (1) or freezing any record or property under sub-Section (1A) shall, within a period of thirty days from such seizure or freezing, as the case may be, file an application, requesting for retention of such record or property seized under sub-Section (1) or for continuation of the order of freezing served under sub- Section (1A), before the Adjudicating Authority.]. 10. Section 18 of PMLA, 2002 reads as under: 18. Search of persons. - (1) If an authority, authorised in this behalf by the Central Government by general or special order, has reason to believe (the reason for such belief to be recorded in writing) that any person has secreted about his per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 presence of such persons. (7) The authority shall prepare a list of record or property seized in the course of the search and obtain the signatures of the witnesses on the list. (8) No female shall be searched by any one except a female. (9) The Authority shall record the statement of the person searched under sub-section (1) or sub-section (5) in respect of the records or proceeds of crime found or seized in the course of the search:18 [***] (10) The authority seizing any record or property under sub-section (1) shall, within a period of thirty days from such seizure, file an application requesting for retention of such record or property, before the Adjudicating Authority . 11. Sub-section (1), (2) and (3) of Section 20 read as under:- 20. Retention of property .- (1) Where any property has been seized under section 17 or section 18 or frozen under sub-Section (1A) of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 confiscation [or release under subsection (5) or sub-section (6) or sub-section (7) of section 8 or section 58B or sub-section (2A) of section 60] , the Adjudicating Authority shall direct the release of the records to the person from whom such records were seized. (6) Where an order releasing the records has been made by the Court [Adjudicating Authority under section (5) of section 21] the Director or any other officer authorised by him in this behalf may withhold the release of any such record for a period of ninety days from the date of (receipt of] such order, if he is of the opinion that such record is relevant for the appeal proceedings under this Act. ] 13. It is settled law that a particular thing is to be done in a particular manner, it must be done in that way and none ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment 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. 16. In the present case, no report against the appellants has been forwarded to the Magistrate. No complaint against the appellants was filed before a Magistrate. No cognizance of schedule offence was taken by any authority or Additional Secretary to the Government of India. 17. Under Section17(1) (A), it is the duty of the officer authorised if where it is found that it is not practicable to seize such property, can make such order that the person concerned shall not transfer or deal with the said property prior to the permission of the officer authorised. A copy of the said order shall be served upon the person concerned. Section 17, Sub-section (2) stipulates that after search and seizure, the authorised officer shall immediately forward a copy of the reason so recorded along with the material in his possession to the Adjudicating Authority in a sealed cover. 18. The authorised officer is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of retention or to modify or setting aside the same. 21. The provisions of section 20 (Retention of Property) are similar to the provisions of section 5(Attachment of Property) as shown here-under: Stages Retention of Property Attachment of Property 1. S. 20(1): Recording of reason to believe ‟ S. 5(1): Recording of reason to believe ‟ 2. S.17(4): OA within 30 days S. 5(5): OC within 30 days 3. S. 20(2): Order by the Authorized Officer S. 5(1): Order by the Authorized Officer 4. Rule 4 of Retention Rules, 2005: Acknowledgment of Order by the Adjudicating Authority Rule 5 of Attachment Rules, 2005: Acknowledgment of Order by the Adjudicating Authority 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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