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TMI Blog2020 (9) TMI 742X X X X Extracts X X X X X X X X Extracts X X X X ..... en recovered from the possession of the petitioner does not mean that he has nothing to do with the amount that has been provisionally attached, particularly when there are allegations in the impugned order of Provisional Attachment that the petitioner was in league and in touch with other accused from whom the money was seized. While confirming the Provisional Attachment Order, it is necessary that the above aspects of the case i.e. whether the petitioner was in any manner linked or associated with the co-accused, from whom the money was seized, are required to be gone into. This aspect of the matter involves disputed questions of fact which cannot be gone into in these proceedings. Therefore, to say that the impugned shown cause notice has been issued by the Adjudicating Authority without jurisdiction does not hold any merit - the Adjudicating Authority was well within its jurisdiction to issue the show cause notice to the petitioner so as to offer him an opportunity to present his case qua the allegations leveled against him in the impugned Provisional Attachment Order. The facts regarding possession of proceeds of crime or its use or concealment or its acquisition can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .254 /2009 for offences under Section 120, 120-B, 121, 121/A RPC and 11, 18, 20 and 40A of ULA(P) Act of Police Station, Saddar, Srinagar. It is averred that in the FIR it is alleged that an amount of ₹ 13,85,000/ has been seized from other accused persons but the petitioner is not involved in the case. 3) It is further averred by the petitioner that as a sequel to the aforementioned FIR, the respondent No.2 has issued the impugned provisional attachment order under sub-section (1) of Section 5 of the act and thereafter filed the impugned complaint before the Chairperson, Adjudicating Authority. 4) It is contended that the petitioner is already facing trial in respect of the allegations made in the FIR which has culminated in final report pending before the Court of learned Additional Sessions Judge (TADA/POTA), Srinagar, wherein charges have been framed against the accused including the petitioner in terms of order dated 24.10.2019 of the said Court. 5) The petitioner has challenged the impugned order of provisional attachment, the complaint and the show cause notice on the following grounds: a. That the impugned provisional attachment order, complaint and show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year 2011 and moreso the property provisionally attached does not belong to the petitioner, as such, the respondents cannot be allowed to drag the petitioner by misusing their official power derived under Prevention of Money Laundering Act, 2002. i) That it is beaten law that no one should be vexed twice which law has been given a complete goby as the impugned order has been passed without application of mind as the respondents having entertained the complaint against the petitioner is sheer abuse of provisions of law running prejudicial to the rights and interests of the petitioner. j) That the respondents have passed impugned order with material illegality and impropriety which has caused great prejudice and violated fundamental rights of the petitioner besides the respondents have grossly erred both factually and legally as a result of which law has not been correctly addressed and understood as well as appreciated as there have been no proceeds of crime which would have been liable to be attached by the respondents. k) That the impugned provisional attachment order, complaint and show cause notice issued by the respondents is legally and factually incorrect and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... XV. Bhagwan Swarup Lal Bishan v. The State of Maharashtra, AIR 1965 SC 682; XVI. The State of A. P. v. Kokkiligada Meeraiah anr. AIR 1970 SC 771; XVII. The Assistant Collector of the Customs, Bombay anr. v. L. R. Melwani anr. AIR 1970 SC 962; XVIII. V. K. Agarwal v. Vasantraj Bhagwanji Bhatia Ors. AIR 1988 SC 1106; XIX. M/S P. V. Mohammad Barmay Sons v. Director of Enforcement, AIR 1993 SC 1188; XX. A. A. Mulla Ors. v. State of Maharashtra anr, AIR 1997 SC 1441; XXI. Union of India Ors. v. Sunil Kumar Sarkar, AIR 2001 SC 1092; XXII. Union of India anr. v. P. D. Yadav, (2002) 1 SCC 405; XXIII. State of Rajasthan v. Hat Singh Ors. AIR 2003 SC 791; XXIV. State of Haryana v. Balwant Singh, AIR 2003 SC 1253; XXV. Hira Lal Hari Lal Bhagwati v. C.B.I, New Delhi, AIR 2003 SC 2545; XXVI. Radheshyam Kejriwal v. State of West Bengal anr, (2011) 3 SCC 581; 8) Since the respondents have raised a preliminary objection with regard to maintainability of the writ petition, as such, learned counsel for the parties were asked to address arguments confined to this issue only. 9) I have heard learned counsel for the par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of U. P v. Brahm Datt Sharma (1987) 2 SCC SC 170, (1987) 3 ATC 319; AIR 1987 SC 943], Special Director v. Mohd. Ghulam Ghouse , (2004) 3 SCC 440; 2004 SCC (Cri) 826] and Union of India a v. Kunisetty Satyanarayana, (2006) 12 SCC 28; 2006 (12) SCALE 262], but the question herein has to be considered from a different angle, viz, when a notice is issued with pre-meditation, a writ petition would be maintainable. In such an event, even if the court directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose [See K.I. Shepherd v. Union of India, (1987) 4 SCC 431; 1987 SCC (L S) 43; AIR 1988 SC 686]. It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the counter affidavit as also in its purported show cause. 10. The said principle has been followed by this Court in V.C. Banaras Hindu University v. Shrikant (2006) 11 SCC 42; (2006 (6) SCALE 66], stating: 48.The Vic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applying to it to seek resort to the machinery so set up. 15) In Munshi Ram v. Municipal Committee, Chheharta, (1979) 3 SCC 83, the Supreme Court observed as under: ..when a revenue statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all other forums and modes of seeking it are excluded. 16) From the aforesaid enunciation of the law on the subject, it becomes clear that normally a person cannot invoke writ jurisdiction of High Court in a case where the Statute provides an efficacious remedy for redressal of his grievances yet there are exceptions to this general rule of caution. In a case where the show cause notice is issued without any jurisdiction or competence or the same is a result of mala fides on the part of issuing authority or the same is issued in violation of the Statutory provisions, the High Court has ample powers to entertain a writ petition in such a case. However, if the High Court starts inferring with the appellate powers of the Authorities that have been created under a Statute without any valid an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19) Section 3 of the Act defines the offence of money laundering‟. It reads as under: Section 3- Offence of money laundering Whosoever 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. 20) From a perusal of the above quoted provision, it is clear that whosoever, directly or indirectly, attempts to indulge or knowingly assists or is knowingly part or is actually involved in any process or activity connected with the proceeds of crime etc. etc. is guilty of offence of money laundering. The expressions used in the provision are directly and knowingly assists . These expressions convey that it is not necessary that proceeds of crime should have been actually and directly concealed, possessed, acquired or used by an offender. Even an indirect link or assistance in an activity connected with proceeds of crime constitutes an offence of money laundering. So the mere fact that the proceeds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant material placed on record before him, by an order record a finding whether the provisionally attached property is involved in money laundering. It is only thereafter that the Adjudicating Authority can confirm the attachment of property. Not only this, the order of Adjudicating Authority is appealable before the Appellate Tribunal established in terms of Section 25 of the Act. Another forum of appeal is available against an order of the Appellate Tribunal under Section 42 of the Act. The Appellate Forum, in this regard, is the High Court. It is relevant to note here that the Member of an Adjudicating Authority has to be qualified for appointment of a District Judge or has been a member of Indian Legal Service or in the field of Finance, Accountancy or Administration. Similarly, the Appellate Tribunal has a Chairperson who must have been a Judge of the Supreme Court or a High Court. Thus, the Adjudicating Authority as well the Appellate Tribunal comprises persons who are legally trained and are well versed with the principles of natural justice and other legal principles. In presence of these exhaustive quasi judicial remedies by the fora comprising judicially trained members/Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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