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TMI Blog2019 (9) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... as to be filed involving the property in question within the prescribed period of 90 days and that if no prosecution complaint is filed in respect of the property concerned, the retention order of seizure lapses. In the present case more than 90 days have been passed since the day of passing of the impugned order and no prosecution complaint was filed that the materials seized herein are part of any prosecution complaint. Therefore, in the light of the above the impugned order to the extent that The seized item should be restored to the appellant which is confirmed with a direction to the respondent that the retained material shall be returned to the appellant within four weeks. - MP-PMLA-4313/DLI/2018 (Stay) And FPA-PMLA-2210/DLI/2018 - - - Dated:- 30-8-2019 - Justice Manmohan Singh Chairman And Shri G. C. Mishra Member For the Appellant : Mr. Manik Dogra, Advocate, Mr. Anurag Singh, Advocate, Ms. Tania D‟Souza, Advocate And Ms. Sonia Dube, Advocate For the Respondent : Mr. Rajeev Awasthi, Advocate JUDGEMENT : FPA-PMLA-2210/DLI/2018 1. The above mentioned appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to as the said Application ). The said application was based on belief that Mr. Iqbal Mubarak, (who is one of the minor shareholders of the Appellant) was the Appellant s director and was running the Appellant s Shop. The allegation as contained in paragraph (f) of the Application is reproduced herein below for ease of reference: f. Investigations revealed certain financial transactions were being handled by Hassan Ali Khan with the help of Mr. Mohammad Hussain who was operating a jewellery firm in London in the name of Dianoor Jewels Ltd. alongwith his brotherin- law Mr. Iqbal Mubarak. It is further revealed from investigation that Mr. Mohammad Hussain s relative i.e. Mr. Iqbal Mubarak, is running a shop in the name of Ahmed Joo, 13 Ormiston Road, Apollo Bandar, Colaba, Mumbai. Investigations have revealed that Mohammad Hussain was in regular touch with Hassan Ali Khan and was privy to unlawful dealings of Hassan Ali Khan and also used to visit Ahmed Joo. [Emphasis supplied] 5. Reply on behalf of the Appellant to the application under Section 17 Rule 4 of PMLA, 2002 for retention of the materials. The relevant parts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Mubarak and their relationship is strained since last more than a decade and since then Mr. Mohammed Hussain has not visited the said shop as alleged or otherwise. e) Notwithstanding the aforesaid, it is submitted that the Application under Section 17(4) of the PMLA is for the retention of the said Goods owned by the Company, and not Mr. Iqbal Mubarak in his personal capacity. It is a well settled position that any property owned by a Company cannot be deemed to be the property of any of its shareholders. Mr. Iqbal Mubarak is neither concerned nor in any manner connected with the operation of the Company. He is a non-resident and currently residing in Dubai, UAE. f) The very basis for invoking the provisions of PMLA with regards to the said Goods is misconceived in as much as, as a mere 5% shareholder, Mr. Iqbal Mubarak is not running the said Shop. The said Shop is run by the Company through its Directors and employee. As it is not even alleged (which would otherwise also be false and baseless) that there is any relation and/or connection between the Company and Mr. Mohammad Hussain, much less Hassan Ali Khan, there is no war ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat while the aforesaid judgment was on a matter dealing with the interpretation and application of Chapter V-A of the Narcotic Drugs and Psychotropic Substances Act, 1985, providing for forfeiture of property derived from or used in illicit traffic, it is respectfully submitted that the provisions and object of the said Narcotic Drugs and Psychotropic Substances Act, 1985 are in pari material to the provisions of the PMLA. l) In any event and without prejudice to the aforesaid, it is submitted that the said Goods found in the said Shop premises of the Company have been procured in the regular course of business. The said Goods are neither financed nor supplied by either by Mr. Iqbal Mubarak or Mr. Mohammad Hussain or Hassan Ali Khan. m) As per Panchnama dated 11.08.2017 (pages 19-22 of the Application), the officers of the Enforcement Directorate were questioning one of the salesmen at the said premises, viz., Mr. Shaikh Javed Hussain. As per the said Panchnama, the officers came under a reason to believe that the said jewellery and precious stones are connected with the offence of money laundering because Mr. Javed, who is nothing more than a sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication No.117/2017 proceed on the erroneous basis that Mr. Iqbal Mubarak is a Director of the Appellant and is allegedly running the Shop, which he is not. It is settled law that neither a shareholder nor a Director has any interest in the property of the Company. The Appellant has no connection of any kind with the alleged dealings or transactions that are being investigated by the Respondent. There is no link between the Appellant and Mr. Hassan Ali Khan and others. As per Section 22 of the PMLA, the property found in possession or control of any person in the course of a survey or a search, it shall be presumed that such property belongs to that person. In the present case, the Appellant is the person in whose possession and control the seized goods were found and hence, it is to be presumed that the goods belong to the Appellant, and not to its shareholder. The Appellant has denied that the investigation revealed that Mr. Iqbal Mubarak is running the shop of the Appellant. It is also denied that Mr. Mohammad Hussain used to visit the Shop. It is admitted by the Respondent, that Mr. Iqbal Mubarak is a shareholder of the Appellant. 7. During the course of arg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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