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TMI Blog2019 (10) TMI 1533X X X X Extracts X X X X X X X X Extracts X X X X ..... rty is not involved in money laundering. This Court finds that the matter does not end there. Even if the adjudication and outcome of the adjudication under section 8(2) is adverse to the writ petitioner or in other words, even if the impugned attachment order which is provisional, is confirmed, writ petitioner has right of appeal to the appellate authority under section 26 of PMLA Act and thereafter, a further appeal to High /Court under section 42 of PMLA Act. Oher than saying that recovery percentage aspect did not come up for consideration in the other order, there is no other reason much less convincing reason for this court to take a different view. As the recovery percentage aspect has already been adverted to, addressed and answered supra elsewhere in this order, it is also a matter of judicial discipline that the order made by another Hon'ble Single Judge is applied in the instant case also. In any event, this court is left with the considered view that there is no reason much less compelling reason for this court to take a different view. Petition dismissed. - W.P. (MD) No.17114 of 2019 and W.M.P.(MD)No.13647 of 2019 - - - Dated:- 15-10-2019 - The Hon& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is under Section 5(1) of PMLA Act. Pursuant to the impugned attachment order, first respondent filed a complaint before the second respondent which is the adjudicating authority under section 5(5) of PMLA Act. This complaint is OC No.1130/19 dated 25.04.2019 and this complaint under section 5(5) of PMLA Act is also assailed in the instant writ petition. This complaint by first respondent before second respondent shall hereinafter be referred to as 'impugned complaint'. 5 The primary contention on behalf of writ petitioner is that the genesis of the entire matter is a 'show cause notice' ('SCN' for brevity) dated 28.12.2012 issued under the 'Mines and Minerals (Development and Regulation) Act, 1957 (67 of 1957)' and 'Tamil Nadu Minor Mineral Concession Rules, 1959' (hereinafter 'MMDR Act' and 'TNMMCR Rules' respectively for brevity, clarity and convenience). 6 Learned counsel for writ petitioner submitted that the aforementioned genesis SCN as well as another SCN dated 13.1.2013 also under MMDR Act and TNMMCR Rules travelled a long way, reached Hon'ble Supreme Court vide SLP(Civil) No.11176 of 2015, etc., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he property attached is barely Rs.4 Crores; (c) Writ petition itself is premature as impugned attachment order is under section 5(1) of PMLA Act as orders have to be passed under Sections 8(1) and 8(2) of PMLA Act regarding confirmation of attachment which has not happened; (d) Under such circumstances, Hon'ble Single Judge of this Court vide order dated 03.01.2019 in W.P.(MD)Nos. 11454, 14860 and 14894 to 14899 of 2018 dismissed writ petitions, matters were carried to Division Bench and Hon'ble Division Bench while issuing notice in intra-court writ appeals, permitted the second respondent to proceed with the hearing of the case, but granted an order of stay only in respect of passing final order. This is vide an interim order dated 06.03.2019 in C.M.P.(MD)Nos.2338 and 2363 to 2368 of 2018. This interim order is operating is learned Solicitor's say. 11 This court carefully considered the rival submissions. 12 With regard to the pivotal contention of learned counsel for writ petitioner that recovery percentage aspect is yet to be crystallised, as rightly pointed out by learned Solicitor that is not the only issue qua FIRs and charge sheet. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trating any proceedings relating to confiscation of such proceeds of crime. 24. Further, it is also possible that trial of offences, both under the PMLA as also of scheduled offences, may take considerable time and if power of provisional attachment is not exercised here, when there are demands of circumstances and existence of jurisdictional facts, it could result in defeating the very purpose for which PMLA has been enacted. If the immovable properties are transferred and change hands, it could lead to creation of bona-fide third party interest which may make it difficult for the authorities to retrieve the same at a later stage. 25. The immovable properties as detailed in the schedule are likely to be concealed, transferred or dealt with in such a manner that, I have reasons to believe that if no Provisional Attachment Order is passed in this case at this stage, it may result in frustrating the proceedings relating to confiscation under Chapter III of the Prevention of Money Laundering Act, 2002 (15 of 2003). 15 Therefore, this is not a case where no reasons have been provided in the impugned order. Therefore, case on hand clearly distinguishable on facts qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s opposed to 80% that has been assumed) and therefore, the value of properties attached cannot be said to be not proportionate. 20 There is yet another aspect of the matter which is of utmost significance and in the considered view of this court, this is of utmost significance as this is the clincher in this matter. 21 As alluded to supra, another Hon'ble Single Judge of this Court vide order dated 03.01.2019 in W.P.(MD)Nos.11454, 14860 and 14894 to 14899 of 2018 has passed a detailed 210 pages order in a similar matter which has been carried in appeal by way of intra court appeals and an interim order granted by a Hon'ble Division Bench which has been referred to supra is operating. 22 Suffice to refer to paragraph 98 of the order made by the Hon'ble Single Judge which reads as follows : 98. In the conspectus of above discussion, this Court would sum up the following, viz., i) That the absence of recording of reasons to believe under Section 5(1) of PMLA, does not result in violation of constitutional right to property of the citizens since it was only a provisional attachment which would be valid only for a maximum period of 180 days or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority, on the basis of the complaint filed by the initial authority under Sub Section 5 of Section 5 of PMLA, can proceed with the adjudication process on the basis of subjective satisfaction. In any event, the Adjudicating Authority has to follow procedure provided under Section 8 as well as the procedure contemplated under the Adjudicating Authority (Procedure) Regulations 2013. Therefore, the writ petitioners are provided with sufficient opportunities to put forth their plea before the Adjudicating Authority. Moreover, even in the show cause notice issued, it is mentioned that there is compliance of Section 8(1) of PMLA which compliance can be verified by obtaining a copy of the order by making necessary application to the Registry. Therefore, these writ petitioners cannot successfully maintain their complaint before this Court. Hence, this Court is of the considered view that there appears to be no legitimate cause for complaining on this aspect. iv) The plea of violation of principles of natural justice can be tested on the golden touchstone of prejudice and in this case, no prejudice is occasioned or caused to the writ petitioners since they have multiple alternativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spute by interjecting its opinion with the findings of the authority who passed the order under Section 5(1), as such opinion on factual matters does not fall within the domain of judicial review exercised by this Court under Article 226 of the Constitution of India. ix) The submission regarding illegal quarrying per se may not be one of the scheduled offence, but by such operation it gave rise to several offences which are punishable under the provisions of IPC and other enactments, like Explosive Substances Act, 1908 etc. In the provisional attachment order various offences are enumerated on the basis of final report by the police. Since this argument is being canvassed in all its seriousness, the same may be addressed by the Central Government by initiating appropriate action to have illegal quarrying included in the schedule offences. Illegal quarrying per se is a affront on the rule of law, as it involves systematic plundering of national wealth and resources endangering natural and salubrious human habitat. Such activity will ultimately put the humanity as a whole to the precipice of irredeemable disaster. x) The submission of non-familiarity of local language by the Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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