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TMI Blog2023 (2) TMI 784X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to deal with his property in whatsoever manner he wants to enjoy the property which shall include sale, lease, transfer, mortgage etc. Therefore the plea urged on behalf of the ED that the petitioner-company is in possession and enjoying the subject-property is not a valid objection and liable to be rejected summerily. The powers under Article 226 of the Constitution of India are plenary in nature and can be exercised by the High Court irrespective of any technical objection raised by the respondent. The prayer for release of the subject-property is accepted. The respondent no.2 is directed to accept the amount of Rs.12 Lakhs tendered by the petitioner-company through bank draft in the name of Directorate of Enforcement payable at Ranchi which shall be deposited in the interest-bearing account till completion of the trial in ECIR/RSZO/01/2015 - Petition allowed. - W.P.(Cr.) No. 80 of 2022 - - - Dated:- 10-2-2023 - HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR For the Petitioner : Mrs. Ritu Kumar, Advocate Mr. Samavesh Bhanj Deo, Advocate Mrs. Shatakshi, Advocate For the Respondent-ED : Mr. Amit Kumar Das, Advocate Mr. Saurav Kumar, Advocate ORDER Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can deal with the subjectproperty in whatever manner it wants. It is submitted that once the subject-property is released from attachment the petitioner-company can legally realise Rs.12 Lakhs from the seller so deposited by it and this is the reason the petitioner-company is not required to question the actions taken by the ED in course of the investigation. 4. In the context of the case pleaded by the petitioner-company, it is necessary to indicate that the definition of property under Clause (v) of section 2 of the PML Act provides that property can be of any description corporeal or non-corporeal, movable or immovable, tangible or intangible and includes deeds and instruments evidencing title to, or interest in, such property or assets, wherever located. And, attachment as defined under section (2)(d) means prohibition of transfer, conversion, disposition or movement of property by an order issued under Chapter III. 5. The proceeds of crime in the case registered by the ED is an amount of Rs. 7 Crores paid by M/s Electrosteel Castings Ltd. to the accused persons which has been tendered through six cheques all dated 26th January 2004 and 7th February 2004. And, as noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminals can be taken charge of, treating it as the proceeds of crime or the value of the proceeds of crime. The term value thereof would thus include equivalent value of the assets of Criminals/Defendants/Accused. The concept of value thereof in the definition of proceeds of crime has to be given the meaning in consonance with the intention and purpose of PMLA. Somewhat similar provisions exist in the criminal law (Amendment) ordinance of 1944. Thus when the property is not traceable or is dissipated, than any other property belonging to the person/accused can be confiscated. It is clear that if the accused is successful in concealing the original property, he cannot be permitted to have advantage thereof, but any other property on which the authority can lay hands can be attached. The Hon'ble Adjudicating Authority of PMLA in its order (No. 76/2010) in the case of Madhu Koda deliberated on the scope of proceeds of crime and the relevant paragraph are reproduced as under:- 110. Nothing on the statute is redundant. Every word on the statute has a purpose. An interpretation deleting the phraseology the value of any such property as redundant would defeat the legisla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riminal activity relating to a scheduled to a scheduled offence. 48. The above definition is to be read with Section 2(1)(b) which defines 'property' to mean any property or assets of every description, whether corporeal or incorporeal, moveable or immovable, tangible or intangible including title to or interest in such a property and their assets, wherever located. The Explanation to Section 2 (1)(b) defines property to mean property of any kind used in the commission of an offence under the PMLA itself or of any scheduled offence. Therefore, the expression 'value of any such property' would be a value equivalent to the value of a property derived or obtained directly or indirectly by any person as a result of criminal activity. The property itself may no longer be available but the equivalent value of such a property, whether held in cash, etc., would be available for attachment. 49. The wide definition of the phase 'proceed of crime' has to be borne in mind while examining the scope of the power of attachment of such proceeds of crime. 8. The subject-property was purchased by the petitioner-company through a registered sale-deed dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 2014 passed in the aforesaid batch of writ petitions the Hon'ble Supreme Court has directed as under: 9. All cases pending before different courts in Delhi pertaining to coal block allocation matters shall stand transferred to the court of Special Judge as afore-noted. 11. Mr. Amit Kumar Das, the learned counsel for the ED has referred to the judgment in Girish Kumar Suneja v. CBI (Criminal Appeal No. 1137 of 2017) to submit that the confusion as to jurisdiction of different High Courts to deal with any matter relating to coal-block allocation has been set at rest by the Hon'ble Supreme Court by rejecting the plea urged on behalf of the aggrieved persons that jurisdiction of the High Courts under Article 226 of the Constitution of India cannot be curtailed by the Hon'ble Supreme Court. 12. The gist of the objection raised by the ED is that the present writ petition is not maintainable in the High Court of Jharkhand. 13. So far as jurisdiction of this Court is concerned, the explanation to section 42 of the PML Act provides that High Court means (i) the High Court within the jurisdiction of which the aggrieved party ordinarily resides or carri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pposition to the prayer made by the petitioner-company. 17. Moreover, what relief is sought by the petitioner-company is also relevant to note. All that the petitioner-company wants is that its property should be released from attachment on its depositing the amount of value thereof . The petitioner-company has not raised any grievance against the investigation or adjudication, or even legality and proprietary of investigation and adjudication proceedings or for that matter against the attachment of other properties of the accused persons. In the present case, the proceeds of crime is in the form of money and in the prosecution complaint and supplementary complaint filed by the ED money-trail has been shown to lead to other properties but not to the subject-property. On the contrary, the ED has attached the subject-property thinking the same belonging to the accused persons and the subject-property has been attached for value thereof . Therefore, all that the ED can insist upon is the value in terms of money equivalent to, for what value thereof this property has been attached. 18. This is also a matter of record that 2nd provisional attachment order vide PAO No. 03/2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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