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TMI Blog2019 (5) TMI 475X X X X Extracts X X X X X X X X Extracts X X X X ..... n during investigation for a period not exceeding ninety days under this Act before the Competent Court, or under the corresponding law of any other countries as the case may be under Sub-section (3) (a) of Section 8 may take necessary action within the time prescribed. In failure to do so under this Act, all the proceedings, seizures/frozen under Section 17 would be lapsed ipso facto. If a particular thing is to be done in a particular manner, it must be done in that manner only and none other. Reliance in this regard is also placed on a judgements in the cases of Dipak Babaria and another vs. State of Gujarat [ 2015 (8) TMI 775 - SUPREME COURT] and J. Jayalalitha Anr vs State of Karnataka Ors [ 2013 (9) TMI 1182 - SUPREME COURT] 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. It is admitted position that no prosecution complaint has been filed against the Appellant herein. The properties and records of the Appellant were seized only for the purpose of investigation. The period of 90 days as prescribed under section 8 (3) (a) has already elapse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eport dated 26.10.2009 is also annexed. c) Shri O.P. Mittal has filed the following documents before authorities and Courts admitted return of ₹ 35 lacs: i) Complaint made to Senior Superintendent of Police, Chandigarh dated 23.07.2009; ii) Representation made to the Home Secretary, U.T. Chandigarh dated 24.07.2009. iii) Suit for specific performance filed in the Court of Civil Judge (Senior Division) Chandigarh dated 1.5.2010. Sh. Surinder Mittal i.e. son of Sh. O.P. Mittal also admitted return/refund of amount before the Investigating Officer vide reply dated 15.02.2010. Sh. Surinder Mittal has admitted reply made to the Investigating Officer during cross examination in Schedule Offence before Trial Court. Copy of letters dated 23.07.2009, 24.07.2009, 15.02.2010, suit dated 01.05.2010 and cross examination dated 15.05.2015 are also enclosed. d) The Directorate of Enforcement, Chandigarh (hereinafter called as Respondent) on the basis of FIR and police report registered case No. ECIR/CDZO/05/2013 and initiated an investigation under the Prevention of Money Laundering Act, 2002. The respondent issued summon dated 28.08.2014 to husband of the appellant under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... control of any record or property, in respect of all matters relevant for the purposes of any investigation under this Act: [Provided that no search shall 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 scheduled 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 authorised 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.] [(1A) Where it is not practicable to seize such record or property, the officer authorised under sub-section (1), may make an order to freeze such property whereupon the property sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch of any person shall be made unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under section 173 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 scheduled offence, as the case may be.] (2) The authority, who has been authorised under sub-section (1) shall, immediately after search and seizure, 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 reasons and material for such period, as may be prescribed. (3) Where an authority is about to search any person, he shall, if such person so requires, take such person within twenty-four hours 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has passed an order for retention or continuation of freezing of the property for purposes of adjudication under section 8, forward a copy of the order along with the material in his possession, referred to in sub-section (1), to the Adjudicating Authority, in a sealed cover, in the manner as may be prescribed and such Adjudicating Authority shall keep such order and material for such period as may be prescribed. (3) On the expiry of the period specified in sub-section (1), the property shall be returned to the person from whom such property was seized or whose property was ordered to be frozen unless the Adjudicating Authority permits retention or continuation of freezing of such property beyond the said period. 8. Section 21 of PMLA reads as under:- "21. Retention of records. - (1) Where any records have been seized, under section 17 or section 18 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sponding law of any other countries as the case may be under Sub-section (3) (a) of Section 8 may take necessary action within the time prescribed. In failure to do so under this Act, all the proceedings, seizures/frozen under Section 17 would be lapsed ipso facto. 12. It is settled law that if a particular thing is to be done in a particular manner, it must be done in that manner only and none other. Reliance in this regard is also placed on a judgements of Hon'ble Supreme Court in the cases of Dipak Babaria and another vs. State of Gujarat 2014 (3) SCC 502 and J. Jayalalitha & Anr vs State of Karnataka & Ors 2014 (2) SCC 401. 13. 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. 14. It is admitted position that no prosecution complaint has been filed against the Appellant herein. The properties and records of the Appellant were seized only for the purpose of investigation. The period of 90 days as prescribed under section 8 (3) (a) has already elapsed as more than 3 years & 10 months have been passed. No prosecution complaint has been filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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