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TMI Blog2019 (5) TMI 476X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings, seizures/frozen under Section 17 would be lapsed ipso facto. 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 [ 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 elapsed as more than an year has been expired. No prosecution complaint has been filed by the respondent against the appellants. The said fact has been admitted by the learned counsel for the respondent. - FPA-PMLA-2231/DLI/2018, FPA-PMLA-2232/DLI/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is not even an averment as to whether there are any proceeds of crime or not and therefore the most basic jurisdictional fact, giving the right to the Directorate of Enforcement to conduct an investigation is itself missing. b) Reasons to believe under Section 8 and 17(1) PMLA were never provided to the appellants despite making a request for the same and in fact the impugned order wrongly records that the requirement of reasons to believe has been exhausted, giving an impression that the same were provided to the appellants. c) The appellants are neither accused in the FIR No. RC.08(A)/2017- AC.III, nor in the ECIR No. HQRS/15/2017 and as such bear no connection with any offence allegedly committed by the accused persons in the said FIR and ECIR. d) The allegations contained in the FIR and ECIR pertain to transactions that took place between the years 2005 and 2011 whereas the property that has been seized pertains to the year 2017 and as such have no connection whatsoever with the alleged offences and the respondents have completely failed to place on record any connection. e) The alleged statement of one Sh. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seized on reasonable belief that the respondent may be in possession of any record relating to money laundering. 14. Section 17 of PMLA, 2002 reads as under: 17 Search and seizure. -(1) Where [the Director or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section,] on the basis of information 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 moneylaundering, or (ii) is in possession of any proceeds of crime involved in money-laundering, or (iii) is in possession of any records relating to moneylaundering, (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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re [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 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 sub-section (1) shall be required for search under this sub-section. (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 freez ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll 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 subsection (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 confiscation [or release under sub-section (5) or sub-section (6) or sub-section (7) of section 8 or section 58B or subsection (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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