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TMI Blog2020 (7) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... -7184/DLI/2020 (U.H), MP-PMLA-7183/DLI/2020 (Stay), FPA-PMLA-3573/DLI/2020, MP-PMLA-7186/DLI/2020 (Stay), MP-PMLA-7185/DLI/2020 (U.H), FPA-PMLA-3574/DLI/2020, MP-PMLA-7187/DLI/2020 (Stay), MP-PMLA-7188/DLI/2020 (U.H), FPA-PMLA-3575/DLI/2020, MP-PMLA-7194/DLI/2020 (Stay), MP-PMLA-7193/DLI/2020 (U.H), FPA-PMLA-3576/DLI/2020, MP-PMLA-7196/DLI/2020 (U.H), MP-PMLA-7195/DLI/2020 (Stay), FPA-PMLA-3577/DLI/2020, MP-PMLA-7198/DLI/2020 (U.H), MP-PMLA-7197/DLI/2020 (Stay), FPA-PMLA-3578/DLI/2020, MP-PMLA-7200/DLI/2020 (U.H), MP-PMLA-7199/DLI/2020 (Stay), FPA-PMLA-3579/DLI/2020, MP-PMLA-7202/DLI/2020 (U.H), MP-PMLA-7201/DLI/2020 (Stay), FPA-PMLA-3580/DLI/2020, MP-PMLA-7204/DLI/2020 (U.H), MP-PMLA-7203/DLI/2020 (Stay), FPA-PMLA-3581/DLI/2020, MP-PMLA-7206/DLI/2020 (U.H), MP-PMLA-7205/DLI/2020 (Stay), FPA-PMLA-3582/DLI/2020, MP-PMLA-7208/DLI/2020 (U.H), MP-PMLA-7207/DLI/2020 (Stay), FPA-PMLA-3583/DLI/2020 Shri G. C. Mishra Acting Chairman For the Appellants : Shri Vikram Chaudhary, Sr. Advocate, Shri Harshit Shetty, Advocate, Shri Rishi Sehgal, Advocate For the Respondent : Shri Nitesh Rana, Advocate ORDER 30.06.2020 MP-PMLA-7171/DLI/2020 (Stay), MP-PMLA-7173/DLI/2020 (Stay), MP-PMLA-7175/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that the Adjudicating Authority has not examined these aspects and has mechanically allowed the prayer of Investigating Officer and that there is not a single finding that the records are involved in money laundering and that the digital devices also includes the cell phones and that the Respondent cannot unlock the phones or ask the applicants to unlock the same and peruse without their express consent. In support of his contention the applicants relied on following judgments:- (i) the Judgment of Hon‟ble Supreme Court in the matter of Justice K.S. Puttaswamy (Retd) and Another v/s. Union of India and Others reported in (2017) 10 SCC. (ii) Hon‟ble Supreme Court Judgment in the matter of Selvi & Ors v/s. State of Karnataka reported in (2010) 7 SCC 263. (iii) Judgment of Hon‟ble Supreme Court of United States passed in the matter of Riley v/s. California, reported in 2014 SCC OnLine US SC 71:573 US ______ (2014) (iv) an order of United States District Court, Northern District of California in the matter of A RESIDENCE IN OAKLAND, CALIFORNIA in Case No. 4- 19-70053. He submitted that the unlocking of cell phones and perusing it by the Investigating Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that even after issuing summons after summons the appellants are not joining the investigation and seeking time after time and that they are not complying with the summons issued under Section 50 and that even they did not join investigatioin few days back and that they are not co-operating since last seven months and that the unlocking of phones was neither pleaded nor adjudicated upon by the Adjudicating Authority so the same cannot be raised at this stage and that phones are important piece of evidence and stay of unlocking the cell phones may not be granted as it tantamount to stalling the investigation. In the common written reply dated 24th June, 2020 the Respondent has reiterated what they have orally submitted on 18th June, 2020. In the said written reply, inter-alia, it is submitted that the issue raised by the appellant is outside the scope of this Tribunal. The Respondent has relied on the judgment passed by the Hon‟ble Supreme Court in the matter of (i) Rajeev Hitendra Pathak & Others Versus Achyut Kashinath Karekar & Another (CIVIL APPEAL NO. 4307 OF 2007). 7. In reply to the submission made by the learned counsel for the Respondent, the learned Sr. Counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 9. Heard the ld. counsels for both the parties on the relief sought by appellant seeking direction to maintain status quo re. the operation of the cell phones. I have gone through the papers available on record, the misc. applications the common written reply and common response to the reply are also perused. The judgments cited and relied by both the parties are gone through. 10. The present appeals are filed u/s. 26 of the PMLA, 2002 challenging the order dated 03.03.2020 passed by the Adjudicating Authority u/s. 8(3) of the said Act. 11. The facts in brief is that, the Respondent registered ECIR/09/DLZO- 1/2018 dated 11.07.2018 on the basis of FIRs No.-84 dated 01.04.2017 registered by Kolkata Police u/s. 406, 420, 120-B IPC against the appellants. The offences are scheduled offences under PMLA. The allegations are that the appellants have cheated thousands of people by luring them of high returns etc. and the funds so raised from public were not used for intended purpose. 12. The Respondent said to have scrutinized the financial documents 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 le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the word "records" which reads as follows:- "records" include the records maintained in the form of books or stored in a computer or such other form as may be prescribed; Section 8 of the said Act deals with Adjudication. Section 8(3) reads as follows:- (3) Where the Adjudicating Authority decides under subsection (2) that any property is involved in moneylaundering, he shall, by an order in writing, confirm the attachment of the property made under sub-section (1) of section 5 or retention of property or [record seized or frozen under section 17 or section 18 and record a finding to that effect, whereupon such attachment or retention or freezing of the seized or frozen property] or record shall- Section 26 of the said Act deals with Appeals to Appellate Tribunal which has six sub-sections. The section relevant for the present case and referred is Section 26 (1) & (4) which are as follows:- (1) Save as otherwise provided in sub-section (3), the Director or any person aggrieved by an order made 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 Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigation. 21. This Tribunal at this stage deciding the stay application filed by the appellants. As a preliminary issue it is to be decided whether the Appellate Tribunal has jurisdiction to grant stay or passed any order of status quo which has the consequence of stalling the investigation. Section 26 (1) clearly provides that the appeal to this Tribunal is to be preferred against an order passed by the Adjudicating Authority. The Adjudicating Authority has passed the impugned order under Section 8(3) of the said Act 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 appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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