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TMI Blog2019 (4) TMI 1983X X X X Extracts X X X X X X X X Extracts X X X X ..... ated:- 29-4-2019 - S. Manikumar And M. Venugopal, JJ. For the Appellant : R. Jayaprakash, Advocate. For the Respondents : M. Dhandapani, Advocate. JUDGMENT S. Manikumar, J. 1. Instant Civil Miscellaneous Appeal is against the Order, made in MP-PMLA-1745/CHN/2015 in FPA-PMLA-856/CHN/2015, dated 4.6.2015, on the file of the Appellate Tribunal, Prevention of Money-laundering Act at New Delhi. 2. It is the case of the Appellant that he was an Accused in Crime in FIR No. 28 of 2013, dated 10.6.2013; 29 of 2013, dated 12.6.2013; and 31 of 2013, dated 14.6.2013, along with 10 others, for the alleged offences under Sections 294(b), 406, 420, 465, 468, 471, 197, 419 506(ii) of the Indian Penal Code, 1860 read with Section 19 of the Transplantation of Human Organs Act, 1994 (hereinafter referred to as 'TOHO Act'), which is pending investigation on the file of the CBCID, Chennai. 3. The Appellant, who is the 3rd Accused in FIR No. 29 of 2013, received ₹ 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Appellant herein. At this juncture, the Assistant Director, Office of the Joint Director, Enforcement Directorate, Chennai Zonal Office, Chennai, 3rd Respondent therein had issued a Notice for taking possession on 8.4.2015. 7. Thereafter, again on 18.5.2015, the 3rd Respondent issued a Notice of eviction to vacate the property, where his family is living. If the Appellant and his family is evicted from the property, he would suffer irreparable loss and great hardship. Therefore, he filed M.P. No. 1745 of 2015 in Appeal No. 856 of 2015, for stay of dispossession of the Appellant from the property, measuring 2625 sq. ft. land and building in Door No. 248, Karkana Street, Meyanur Village, Salem. 8. Before the Appellate Tribunal, the Appellant contended that he is staying in the premises, along with his wife and she is in a family way. On instructions, the learned Counsel appearing for the Appellant submitted that he does not have any other suitable Residential accommodation and 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellate Tribunal ought to have seen that the 3rd Respondent is not at having any authority to disturb the physical possession of the property. When it is so, it warrants this Court's interference for rescuing me from this tragedy. 11. The Respondents have filed a Counter Affidavit, contending inter alia that a Criminal case was registered by the District Crime Branch, Police Department, Dharmapuri District, in Crime No. 29 of 2013 against four persons, including Dr. V.M. Ganesan, for indulging in transplantation of kidney resorting to illegal means by forging the identity of the donor, fabricating documents, etc. for the offences charged of having committed under Sections 294(b), 406, 420, 465, 468, 471, 197, 419 506(ii) of IPC 1860 read with Section 19 of Transplantation of Human Organs Act, 1994, prohibiting commercial dealings in human organs. Sections 420, 471 419 of IPC, 1860 and Section 19 of Transplantation of Human Organs Act, 1994 are the scheduled offences in terms of Clause (y) of sub-section (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession of the attached immovable property, in term 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 by issue of Notice in Form-I (Notice for taking possession of the immovable property) on the Appellants under acknowledgement. The taking of Possession Notice in Form-I was also published in local Newspapers both English through The Hindu and in regional language through Dinamalar''' on 10.5.2015. As the premises of the property in the Appeal herein, was found occupied by the Appellant's family, a Notice of Eviction, dated 18.5.2015, was served on the Appellant. Further, the premise was identified and the Notice for possession in Form-I was pasted on the front portion/main door of the attached property in the presence of independent Witnesses, under Mahazar, dated 2.6.2015. 16. The Respondents have further submitted that being aggrieved by the action taken by the Respondent-Department, 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 Adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lid and justified. As per the PMLA, it is the mandate of the Director of Enforcement or any other Officer authorized by him to take possession of the property involved in the act of Money-laundering which in this case is the property of the Appellant. 19. The Respondents have further submitted that in terms of Section 26 of the PMLA, the Appellant only filed a Miscellaneous Petition on 2.6.2015, before the Appellate Tribunal, PMLA, New Delhi vide MP-PMLA-1745/CHN/2015 in FPA-PMLA 856/CHN/2015, to stay the Notice of Eviction, dated 18.5.2015 to vacate the property and also prayed to stay all further proceedings pursuant to the Order passed in OC No. 355/2014, dated 12.2.2015 on the file of the Adjudicating Authority, PMLA, New Delhi pending disposal of the Appeal. The Hon'ble Appellate Tribunal, New Delhi vide Order, dated 4.6.2015 disposed the Miscellaneous Petition with the balance of convenience in favour of the Appellant with the condition subjecting the Appellant to deposit ₹ 25,000 per month from February 2015 along with arrears, by 15th July 2015 until disposal of the Appeal. Without satisfying the decision or Order of the Appellate Tribunal, the Appellant has ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssuing of such notice if the premises is not vacated within the stipulated time, such occupant shall be evicted and the possession shall be taken by seeking the assistant of the Local Authorities in terms of Section 54 of the Act, and therefore, the contention raised by the Appellant are devoid of merits. 22. Supporting the grounds raised in this appeal, Mr. R. Jayaprakash, learned Counsel appearing for the Appellant submitted that only after the completion of the trial in the Money-laundering case, taking over possession can be done. He referred to sub-section (5) of Section 8 of the Act, which states that, 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. 23. In support of the prayer to set aside the impugned Order in this Appeal, learned Counsel for the Appellant placed reliance on the decision of this Court in A. Kamarunnisa Ghori v. Chairperson, Prevention of Money-laundering, 2012 (4) CTC 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not involved in Money-laundering. (3) Where the Adjudicating Authority decides under sub-section (2) that any property is involved in Money-laundering, 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- (a) continue during the pendency of the proceedings relating to any offence under this Act before a court or under the corresponding law of any other country, before the competent Court of Criminal jurisdiction outside India, as the case may be; and (b) become final after an Order of Confiscation is passed under sub-section (5) or sub-section (7) of Section 8 or Section 58-B or sub-section (2-A) of Section 60 by the Adjudicating Authority. (4) Where the Provisional Order of Attachment made under sub-section (1) of Section 5 has been confirmed under sub-section (3), the Director or any other Officer authorised by him in this behalf shall forthwith take the possession of the property attached ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rector or any other Officer Authorised by him in this behalf shall forthwith take the possession of the property or record in the manner prescribed in these Rules. 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. (2) Where the attached property confirmed by the Adjudicating Authority, is liable to speedy and natural decay or the expense of maintenance is likely to exceed its value, the Authorized Officer shall sell such property with the leave of the concerned Special Court or Adjudicating Authority, as the case may be, and deposit the sale proceeds in the nearest Government Treasury or branch of the State Bank of India or its subsidiaries or in any Nationalised Bank in fixed deposit and retain the receipt thereof: Provided that where the owner of the property furnishes the fixed deposit receipt of a Nationalised Bank equivalent to the value of property in the name of Director of Enforcement, the Authorised Officer may accept and retain such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cating Authority is in the form of a land, buildings, house, flat, etc. and is occupied by the Owner, the Authorized Officer shall issue a Notice of Eviction of ten days so as to prevent the person from enjoying such property and after issuing of such Notice, if the premises is not vacated within the stipulated time, such occupant shall be evicted and the possession shall be taken by seeking the assistance of the local Authorities in terms of Section 54 of the Act; (3) Where the immovable property confirmed by the Adjudicating Authority is in the form of a land, building, house, flat, etc., and is given on Lease or Rent to a Third party which is registered in accordance with the provisions of Section 17 of the Registration Act, 1908, the Authorized Officer shall issue a direction to the occupant to pay the Lease amount or Rent in the form of Demand Draft payable to the Directorate of Enforcement; (4) Where the immovable property confirmed by the Adjudicating Authority is in the form of a land, building, house, flat, etc., and is given on lease or rent to any Third party where the registration is optional in accordance with the provision of Section 18 of the Registration Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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- (a) continue during the pendency of the proceedings relating to any offence under this Act before a Court or under the corresponding law of any other country, before the competent Court of Criminal jurisdiction outside India, as the case may be; and (b) become final after an Order of Confiscation is passed under sub-section (5) or sub-section (7) of Section 8 or Section 58-B or sub-section (2-A) of Section 60 by the Adjudicating Authority. 29. Procedure relating possession and manner of taking possession, as set out in the foregoing Paragraphs, are reproduced,- Rule 3 of the above said Rules, reads thus: 3. Procedure relating to possession.- Where the Provisional Order of Attachment made under sub-section (1) of Section 5 of the Act or order for retention of property or records seized or frozen under Section 17 or Section 18 has been confirmed by the Adjudicating Authority under sub-section (3) of Section 8, the Director or any other Officer Authorised by him in this behalf shall forthwith take the possession of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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