9911796707
TMI Blog2019 (4) TMI 1983X X X X Extracts X X X X X X X X Extracts X X X X ..... 29 of 2013, received Rs. 1,00,000 from one Kathavarayan (Informant) for kidney transplantation for his father, namely, Ayyar and at a later point of time, refused to conduct the operation and after repeated demands, the Appellant paid Rs. 50,000 to Kathavarayan and refused to pay the remaining Rs. 50,000. During 2009-2013, the Appellant as a Nephrologist took part in the post-transplantation care of 81 patients at Salem Vinayaga Mission Hospital and received a tainted Professional Income of Rs. 81 lakhs and purchased 2 properties in Salem, one in 2011 and another in 2013. 4. The Appellant filed Crl.O.P. No. 17736 of 2013, before this Court, challenging the proceedings in Crime No. 29 of 2013 registered against him. The Joint Director of Enforcement Directorate, after perusing records, formed an opinion that the Appellant and one Dr. Thirumal were in possession of 2 properties, acquired through tainted money. Thereafter, on 18th August 2014, under Section 5(1) of the Act, an Order of Provisional Attachment was passed. The said Provisional Order was challenged by the Appellant before this Court, in W.P. No. 22235 of 2014, which came to be dismissed, with a direction to the Adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in case, he would be evicted from the premises, they would be in the streets and they would be put to serious hardships. Consequently, balance of convenience is in favour of the Appellant in case of dispossession. 9. Before the Appellate Tribunal, learned Counsel for the Appellant submitted that the charges for use and occupation of the premises, in respect of which, the notice for eviction has been issued shall be about Rs. 10,000 to Rs. 15,000 per month, however, nothing has been produced to show, as what would be the reasonable charges for use and occupation of such premises. In the above circumstances, the Appellant has prayed to grant stay of dispossession of the Appellant and his Family Members from the said premises, comprising 2525 sq. ft. land and building in Door No. 248, Karkana Street, Meyanur Village, Salem, on the Applicant depositing charges at the rate of Rs. 25,000 per month from February 2015 and the arrear of charges be deposited by 15th July 2015. At that juncture, considering the facts and circumstances of the case, the Appellate Tribunal, by Order, dated 4.6.2015, ordered as follows: "Future charges for use and occupation of the premises be also deposited by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (1) of Section 2 of the Prevention of Money-laundering Act, 2002 (hereinafter referred to as the PMLA). Hence, the Directorate of Enforcement, Chennai Zonal Office registered an Enforcement Case Information Report in ECIR. No. 12/CEZO/PMLA/2013 on 15.11.2013 and initiated Money-laundering Investigation. 12. The Respondents have further submitted that the Joint Director of Enforcement Directorate, Chennai Zonal Office, based on the facts, circumstances and evidences on record, formed an opinion and reason to believe that the Appellant herein purchased the two immovable properties out of the proceeds of crime and that one of the immovable properties has been transferred to an accomplice viz., Dr. G. Thirumal and the another, likely to be concealed, transferred or dealt with in any manner that would frustrate the proceedings relating to confiscation of such proceeds of crime and hence, under the powers vested under the provisions of Section 5(1) of the PMLA, issued the Provisional Attachment under Order (PAO) No. 12/2014, dated 18.8.2014 and subsequently, a Complaint was filed on 2.9.2014 before the Adjudicating Authority (PMLA), New Delhi, under subsection (5) of Section 5 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, in terms of sub-section (4) of Section 8 of PMLA read with Rule 6 of the PML (Taking Possession of Attached or Frozen Properties Confirmed by the Adjudicating Authority) Rules, 2013, in taking possession of the confirmed attached immovable property filed a Stay Miscellaneous Petition on 2.6.2015, under MP-PMLA-1745/CHN/2015 in FPA-PMLA 856/CHN/2015, before Hon'ble Appellate Tribunal, PMLA, New Delhi against the Notice of Eviction, dated 18.5.2015. The Appellate Tribunal, PMLA, New Delhi, vide Order in MP-PMLA-1745/CHN/2015 in FPA-PMLA 856/CHN/2015, dated 4.6.2015, passed an Interim Order to the Miscellaneous Petition in favour of the Appellant to stay the dispossession of the property, subjected the Appellant to deposit charges at the rate of Rs. 25,000 per month from February 2015, along with arrears by 15th July 2015 and posted the Appeal for further hearing on 23.7.2015. During the hearing held on 23.7.2015 before the Appellate Tribunal, PMLA, New Delhi, the Appellant has contended that the possession of the confirmed attachment of the immovable properties have already been completed on 2.6.2015, in terms of sub-section (4) of Section 8 of PMLA read with Rule 6 of the PM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rears, by 15th July 2015 until disposal of the Appeal. Without satisfying the decision or Order of the Appellate Tribunal, the Appellant has approached this Court under Section 42 of the PMLA, without any Question of Law or fact arising out of the said order and therefore, the contention of the Appellant is not sustainable, as the Appellate Tribunal, PMLA has acted within the boundaries of its jurisdiction as provided under the PMLA. 20. It is the further contention of the Respondents that the mandate for dispossession after confirmation of attachment, is intended by the legislative scheme. The apparent purpose for dispossession under Section 8(4) is to prevent wastage or spoilage of property and the dissipation of its value, till the stage of confiscation. The right to property is not a Fundamental Right in terms of Article 14, 19 & 21 of the Constitution of India. Though it is a Constitutional right in terms of Article 300-A, by the well accepted principle of 'void for vagueness' which applies to invalidate irredeemably ambiguous Statutory provisions which does not affect personal liberties within the Constitutional prohibition of ex post-facto laws enjoined by Article 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt placed reliance on the decision of this Court in A. Kamarunnisa Ghori v. Chairperson, Prevention of Money-laundering, 2012 (4) CTC 608. 24. Reiterating the averments made in the Counter Affidavit, Mr. M. Dhandapani, learned Counsel for the Respondents have made submissions. Heard the learned Counsel for the parties and perused the materials available on record. 25. Before adverting to the merits of the case, let us consider provisions in the Prevention of the Money-laundering Act, 2002 and the Rules made thereunder. Section 8 of the Act, deals with adjudication and the same is reproduced hereunder: "8. Adjudication.- (1) On receipt of a Complaint under sub-section (5) of Section 5 or Applications made under sub-section (4) of Section 17 or under subsection (10) of Section 18, if the Adjudicating Authority has reason to believe that any person has committed an offence under Section 3 or is in possession of proceeds of crime, he may serve a Notice of not less than thirty days on such person calling upon him to indicate the sources of his income, earning or assets, out of which or by means of which he has acquired the property attached under sub-section (1) of Section 5 or seiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Officer authorised by him in this behalf shall forthwith take the possession of the property attached under Section 5 or frozen under sub-section (1-A) of Section 17, in such manner as may be prescribed: Provided that if it is not practicable to take possession of a property frozen under sub-section (1-A) of Section 17, the Order of Confiscation shall have the same effect as if the property had been taken possession of. (5) Where on conclusion of a trial of an offence under this Act, the Special Court finds that the offence of Money-laundering has been committed, it shall order that such property involved in the Money-laundering or which has been used for commission of the offence of Money-laundering shall stand confiscated to the Central Government. (6) Where on conclusion of a trial under this Act, the Special Court finds that the offence of Money-laundering has not taken place or the property is not involved in Money-laundering, it shall order release of such property to the person entitled to receive it. (7) Where the trial under this Act cannot be conducted by reason of the death of the accused or the accused being declared a proclaimed offender or for any other reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the name of Director of Enforcement, the Authorised Officer may accept and retain such Fixed Deposit Receipt as security and send a Report to the Special Court or Adjudicating Authority as the case may be, for information and appropriate action: Provided further that where the movable property is a mode of conveyance of any description, the Authorised Officer, after obtaining its valuation report from the Motor Licensing Authority or any other authority, as the case may be, may accept and retain the fixed deposit receipt of a Nationalised Bank equivalent to the value of the movable property as security in the name of Director of Enforcement and send a Report to the Special Court or Adjudicating Authority, as the case may be, for information and appropriate action. (3) Where the attached property confirmed by the Adjudicating Authority consists of cash, Government or other securities or bullion or jewellery or other valuables, the Authorized Officer shall cause to deposit it in a locker in the name of the Director of Enforcement or in the form of fixed deposit receipt, as the case may be, in State Bank of India or its subsidiaries or in any Nationalised Bank and retain the receip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n accordance with the provision of Section 18 of the Registration Act, 1908, the Authorized Officer shall proceed to get the premises vacated and the possession shall be taken by seeking the assistance of Local Authorities in terms of Section 54 of the Act; (5) Where the immovable property confirmed by the Adjudicating Authority is in the form of a land, building, house, flat, etc. and is under joint ownership, the Authorized Officer may accept the equivalent value of Fixed Deposit to the extent of the value of the share of the concerned person in the property estimated by the Authorized Officer, to be involved in Money-laundering; and (6) Where the immovable property confirmed by the Adjudicating Authority is in the form or nature of productive asset or an establishment which is producing goods or a factory, etc. and where the manufacturing process or activity is being carried out, the Authorized Officer may take possession with a direction to the person in-charge of the concerned establishment or factory that gross income and any other monetary benefits which accrue there from shall be deposited in the account of the Directorate of Enforcement. 6. Mode of serving of Notice.- ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf shall forthwith take the possession of the property or record in the manner prescribed in these Rules." Rule 4(1) of the above said Rules, reads thus: "4. Manner of taking possession of movable property.- (1) Where the attached property confirmed under sub-section (3) of Section 8 of the Act is a movable property, the Authorized Officer shall take physical possession of such property and deposit it in a warehouse or a storage place." 30. Sub-section (5) of the Act, deals with the power of the Adjudicating Authority on the conclusion of a trial, to confiscate the property, and it has no relation to the case on hand. Attachment and confiscation are different. Attachment of the property has been confirmed by the Adjudicating Authority, as per the statutory provisions. Therefore in terms of Rules 8(3) & 8(4) of the above said Rules, physical possession of the attached property has to be taken. However, considering the difficulty expressed, the Appellate Tribunal, has passed a considered Order, dated 4.6.2015. 31. Considering the facts and circumstances, there is no ground to interfere with the Order. Hence, Order made in MP-PMLA-1745/CHN/2015 in FPA-PMLA-856/CHN/2015, dated 4.6. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
