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TMI Blog2017 (12) TMI 1729X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of the Appellate Tribunal that he may file an appeal to the High Court as per Section 42 of PML Act. When such is the mechanism provided for the effective redressal of the grievance within the four corners of the provisions of the PML Act, petitioner is not justified in rushing to this Court at the stage of show-cause notice and the provisional order of attachment. Therefore, it is not appropriate for this Court to enter into various contentions urged by petitioner. This is not a case where extraordinary jurisdiction of High Court under its writ jurisdiction has to be exercised ignoring the efficacious machinery provided under the Act. Hence, without expressing any opinion on the merits of the matter and making it clear that whatever prima facie opinion is expressed shall be confined only for the purpose of deciding the maintainability of the writ petition, by reserving liberty to the petitioner to urge all necessary grounds before the competent authority, this writ petition is dismissed. It is made clear that that period taken in prosecuting this writ petition before this Court shall be excluded for the purpose of time limit prescribed under the Act, both for seeking re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 25.02.2011. Petitioner disputed the action alleging lack of bonafides and absence of valid grounds for termination. Petitioner alleges that as it did not accept the termination and was intending to invoke arbitration, in order to harass the petitioner, Department of Space, Government of India instructed the Department of Revenue and Department of Corporate Affairs to investigate matters pertaining to petitioner, particularly issues with reference to Foreign Exchange and Management Act (for short, the 'FEMA') and PML Act. 6. On 29.06.2011, petitioner claims to have invoked arbitration under the ICC Rules challenging termination of the agreement by Antrix and seeking specific performance and in the alternative compensation/damages in a sum of USD 1.4 billion. Petitioner alleges that because of initiation of arbitration proceedings by petitioner, in order to harass the petitioner and its Directors both present and past, series of coercive actions have been initiated against petitioner including the impugned actions. 7. Petitioner alleges that because of the direction issued by the Department of Space, Ministry of Corporate Affairs commenced investigation under the Companies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the provisional attachment order. 12. Learned Senior Counsel Sri Udaya Holla appearing for petitioner has urged the following contention asserting that present writ petition is maintainable though it is filed against the provisional order of attachment and the showcause notice issued. (i) that action of respondent - authorities is malafide and hence, petition under Articles 226 and 227 is maintainable; (ii) that the proceedings initiated and investigation sought to be conducted by the respondent - authorities under PML Act is without jurisdiction; (iii) that the respondents were applying the provisions of PML Act with retrospective effect contrary to law; (iv) as there is non-existence of proceeds of crime, provisions of PML Act does not apply; (v) that the provisional attachment order is bad in law because there were no reasons to believe that petitioner was in possession of proceeds of crime and that they were likely to be concealed or transferred, etc. 13. Elaborating all the above contentions, Sri Holla urged that after the petitioner - company invoked ICC Arbitration, the Government of India has started to harass the petitioner - company and its Directors, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment of Space, but was on account of the recommendation made by the High Powered Review Committee. By the mere fact that any other issue which was incidental to the main context of the investigation with reference to FEMA, PML Act, Company Act and other legislation that might come to light during the course of investigation had to be also enquired into, it cannot be said the authorities were acting with a malafide intention. Such a conclusion of malafide action cannot be arrived at by this Court based on Annexure-J - letter, so as to restrain the authorities from proceeding in accordance with the provisions of law. Indeed, as the matter is seized by the Adjudicating Authority all questions can be urged before it. 16. Similarly, mere fact that the High Court of Delhi has stayed proceedings initiated by the Registrar of Companies does not automatically lend support to the contention of the petitioner that action initiated under the provisions of PML Act are the result of malafide intention on the part of the respondent - authorities. Reliance placed on Annexure- S - letter in this connection, written by Antrix Division of Department of Space to the Secretary, Ministry of Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voke the provisions of PML Act are absent because offences alleged against the petitioner were in relation to transactions of the year 2005. It is urged that principal allegation made being that some public official of the Government of India and Antrix Corporation Limited had cheated the GOI by abusing their official position in order to cause favour to the petitioner - Company and that there was criminal conspiracy, in that the accused public servants had given rights to petitioner - company for delivery of video, multimedia and information services to mobile receivers in vehicles and mobile phones via S-Band through GSAT - 6 and GSAT - 6A satellites and terrestrial systems in India, the said acts did not constitute scheduled offence as on the date the aforesaid offences of cheating and conspiracy under Section 420, 120B of IPC and Section 13 of the Prevention of Corruption Act, 1988 were allegedly committed in the year 2005; they were not part of the schedule appended to the PML Act; those offences were included in the schedule to PML Act with effect from 01.06.2009 pursuant to PML (Amendment) Act (Act No.21/2009); hence, any retrospective application of penal law was unconstitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime under the PML Act. 24. It has to be noticed that PML Act has been enacted to prevent money laundering and to provide for confiscation of property derived from, or involved in, money laundering. Section 3 of the Act provides that whoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money-laundering. 25. It is not in dispute that Section 420 IPC has been included as a scheduled offence only in 2009, so also Section 120B IPC and Section 13 of the Prevention of Corruption Act. The question whether petitioner was involved in money laundering as provided under Section 3 of the PML Act has to be decided by the competent authority. What is the date of laundering in the facts of the present case and what process or activity by which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the schedule? Whether proceedings can be initiated against such person at all are larger questions that can be examined based on relevant facts as and when they emerge during the course of adjudication. 27. Learned Additional Solicitor General has submitted that there could be interconnected transaction as conceived by Section 23 of PML Act which might be extension of the same transaction that had taken place prior to the amendment that could also be dealt with as they would become part of money laundering activity. It is not necessary to go into this aspect at this stage. 28. In the instant case, as the adjudication process has not yet started and the matter is at the stage of show-cause notice and provisional attachment, it is not proper for this Court to express any opinion on this aspect of the matter. It is also evident from the show-cause notice that allegations of money-laundering are made in respect of transactions spanning over a period of time, even beyond the period when the amendment was brought about. This is evident from paragraphs 9.40 and 9.46 of the showcause notice. 29. It is well established by catena of decisions of the Apex Court that High Court will n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ushing to this Court at the stage of show-cause notice and the provisional order of attachment. Therefore, it is not appropriate for this Court to enter into various contentions urged by petitioner. 31. In the case of ASST. COLLECTOR OF CENTRAL EXCISE, WEST BENGAL VS. DUNLOP INDIA LTD., & OTHERS - 1985 (19) ELT 22 (SC), the Apex Court after referring to earlier decision on the point has held that where the statute itself provides the petitioner with an efficacious alternative remedy by way of appeal to the prescribed authority and a second appeal, it was not for the High Court to exercise its extraordinary jurisdiction under Article 226 of the Constitution ignoring the complete statutory machinery. 32. For all the reasons stated above, I am of the view that this is not a case where extraordinary jurisdiction of High Court under its writ jurisdiction has to be exercised ignoring the efficacious machinery provided under the Act. Hence, without expressing any opinion on the merits of the matter and making it clear that whatever prima facie opinion is expressed shall be confined only for the purpose of deciding the maintainability of the writ petition, by reserving liberty to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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