9911796707
TMI Blog2020 (7) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... allowing the application filed by the Respondent in the interest of investigation and interest of justice and permitted that the records seized in the case to be retained in terms of Section 17(4) of the PMLA, 2002. Since the order under challenged is an order passed by the Adjudicating Authority so this Tribunal has inherent jurisdiction to grant stay of the impugned order but the stay as sought in the present appeals, by the appellant cannot be granted as the appellant is seeking stay of the impugned order consequence of which is to stall the investigation. In the present case, during the course of hearing it is submitted by the learned Sr. counsel for the appellant that they have received summons to unlock the cell phones, which according to the appellant, violates privacy of the appellants. What it appears is that, actually, the appellant wants a direction from this Tribunal to issue an order of status quo re qua the cell phones which is nothing but in the guise to stall the investigation and the same is not within the jurisdiction of this Tribunal as the matter pertains to issue of summons was not before the Adjudicating Authority. The submissions made with regard to issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DER 30.06.2020 MP-PMLA-7171/DLI/2020 (Stay), MP-PMLA-7173/DLI/2020 (Stay), MP-PMLA-7175/DLI/2020 (Stay), MP-PMLA-7177/DLI/2020 (Stay), MP-PMLA-7179/DLI/2020 (Stay), MP-PMLA-7182/DLI/2020 (Stay) MP-PMLA-7183/DLI/2020 (Stay), MP-PMLA-7186/DLI/2020 (Stay) MP-PMLA-7187/DLI/2020 (Stay), MP-PMLA-7194/DLI/2020 (Stay) MP-PMLA-7195/DLI/2020 (Stay), MP-PMLA-7197/DLI/2020 (Stay) MP-PMLA-7199/DLI/2020 (Stay), MP-PMLA-7201/DLI/2020 (Stay) MP-PMLA-7203/DLI/2020 (Stay), MP-PMLA-7205/DLI/2020 (Stay) MP-PMLA-7207/DLI/2020 (Stay) The applications for stay of the operation of the impugned order were heard from both sides on 18th June, 2020. On the request of the Respondent time was granted to file reply to the stay application till 24th June, 2020. The common reply is received on 24th June, 2020 and the common response to the replies filed by the applicants on 25.06.2020 The same are taken on record. 2. The appeals have been filed challenging the common order of the Adjudicating Authority allowing the application of Respondent to retain documents, digital devices and other things seized/recovered vide Panchnama dated 19.09.2019 from seven different premises, in terms of section 17(4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Case No. 4- 19-70053. He submitted that the unlocking of cell phones and perusing it by the Investigating Officer would violate the right to privacy and also violate Articles 20 (3) and 21 of the Constitution of India. He argued that asking the appellant to unlock the phone is not part of investigation and that the cell phone contains everything from bathroom to bedroom and those are private to the person concerned and that the unlocking of phones would tantamount to violation of Articles 20(3) and 21 of the Constitution of India. 5. It is submitted that after the passing of the impugned order the appellants have received summons from Enforcement Directorate for investigation into digital devices for that purpose the Enforcement Directorate wants to ask the appellants to unlock the cell phone and that at this stage he is seeking a direction to maintain status quo over the digital devices limited to cell phones as viewing the contents thereof would not only be illegal and unconstitutional but would tantamount to invasion of privacy and that the Enforcement Directorate cannot open the cell phones and other digital devices without express consent of the appellants. 6. On the ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07 OF 2007). 7. In reply to the submission made by the learned counsel for the Respondent, the learned Sr. Counsel for the appellants submits that if somebody was given opportunity and did not avail the opportunity then it would be traversity of justice if the order is confirmed on this ground alone and that the appellants have filed the written submission duly acknowledged by the Adjudicating Authority and that the Appellate Tribunal has jurisdiction to grant status quo order with regard to the digital devices limited to cell phones and that the appellants have joined the investigation several times and that due to COVID-19 situation the appellants sought further time to join the investigation. The appellants have a prima facie case for grant of order of status quo. 8. The appellants have filed a common response to the reply filed by the respondent. In their response they have submitted, inter-alia, the followings:- i. The appellate Tribunal has all the powers to revisite all issues, be it factual or legal, and the appeal is virtually a continuation of Adjudication proceedings. ii. It is preposterous on the part of the respondents that since a reasoned order‟ ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uments and that in furtherance thereof, the Respondent conducted searches u/s. 17(1) of the said Act on 19.09.2019 at seven premises which led to recovery and seizure of incriminating documents, digital services, Indian and Foreign Currencies. 13. The Respondent, thereafter drawn Panchanama on the same date i.e. 19.09.2019. The Respondent fiiled O.A. dated 16.10.2019 for retention of records digital services and properties/valuable items (currencies) u/s. 17(4) for further investigation. 14. It is recorded in the impugned order that:- inspite of the sufficient opportunities given to the Respondent No. 8 on 04.12.2019, 31.01.2020, 19.02.2020 he did not file any written reply/application nor presented before the Adjudicating Authority in course of proceedings under Section 17(4). Another opportunity was also given to Respondent No. 1 to 18 to present/file their reply on 31.01.2020 and 19.02.2020 which he did not avail. In view of the aforesaid facts and circumstances of non compliance on the part of the Respondent, the issue is adjudicated on the basis of material brought on record. 15. There is no mention in the impugned order about filing of written submission by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Adjudicating Authority under this Act, may prefer an appeal to the Appellate Tribunal. (4) On receipt of an appeal under sub-section (1), or subsection (2), the Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against. 18. By referring to aforesaid provisions the appellants, inter alia , argued that there is no provision under Section 17(1) (i) to (iv) of PMLA which would allow an authority to even commence the entry, search, seizure for the purpose of effective investigation‟ and that there is no provision in PMLA which would authorize the retention of records or digital devices for the purpose of ongoing investigations. He has also referred to Section 2(w) which deals the definition of the word records‟ and does not dispute that it includes digital devices. He also referred to Section 26 particularly 26(4) and submitted that the Appellate Tribunal has jurisdiction to issue the order of status quo re.‟ the operation of cell phones. Finally, he has taken shelter to Section 8(1) and 8(3) and submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant is seeking stay of the impugned order consequence of which is to stall the investigation. In the present case, during the course of hearing it is submitted by the learned Sr. counsel for the appellant that they have received summons to unlock the cell phones, which according to the appellant, violates privacy of the appellants. What it appears is that, actually, the appellant wants a direction from this Tribunal to issue an order of status quo re qua the cell phones which is nothing but in the guise to stall the investigation and the same is not within the jurisdiction of this Tribunal as the matter pertains to issue of summons was not before the Adjudicating Authority. The submissions made with regard to issue of summons/unlock of cell phones and the violation of the fundamental rights as enshrined under Articles 20(3) 20(1) are not within the jurisdiction of this Tribunal. 22. We have to read Section 17(1)(i) to (iv) in conjunction with Section 8(3)(a) wherein it is clearly provided that the retention of record shall continue during investigation for a period not exceeding 365 days as the case may be. From the above, it appears that both the provisions are inter-rel ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
