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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 ..... 0 and 120-B of the Indian Penal Code. After the investigation, the CBI has submitted charge-sheet against M/s Domco Pvt. Ltd. and its Directors on 22nd December 2015. The petitioner-company has produced a document at page 81 of the supplementary affidavit which records name of the Directors of the petitioner-company. In the complaint filed by the ED under section 45 of the Prevention of Money Laundering Act, 2002 (in short, PML Act), or the provisional attachment order dated 31st March 2018, or the confirmation order dated 17th September 2018, name of the Directors of the petitioner-company does not appear anywhere either as accused who have committed money-laundering or as having been involved in any manner whatsoever with commission of the offence under section 3 of the PML Act. Notwithstanding that, the subject-property has been attached by the ED for "value thereof" for an amount of Rs. 12 Lakhs. 3. On behalf of the petitioner-company, it is submitted that the subject-property was purchased by it through a registered sale-deed dated 15th June 2016 much before the provisional attachment order was passed on 31st March 2018 by the Deputy Director of the Enforcement Directorate at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner-company or its Directors are not involved in any manner whatsoever with the offence of money-laundering or any act of concealment, transfer, possession etc. of the proceeds of crime for which the ECIR has been registered by the ED on 30th January 2015. In the prosecution complaint dated 13th December 2018 and the supplementary complaint dated 29th January 2021, the ED has not even whispered about involvement of the petitioner-company in money-laundering or any of the offending acts for concealment, possession, uses, transfer etc. of the proceeds of crime. 7. In the confirmation order dated 17th September 2018, the Adjudicating Authority has recorded the following reasons for confirming attachment of the subject-property: "17. Value Thereof: It is often seen that after indulging into a criminal activity relating to a scheduled offence or after commission of the scheduled offence, the proceeds which are derived, directly or indirectly, are not necessarily kept or available in the same form. They are transferred, converted, siphoned or merged into distinct assets, so as to disguise the original character of the proceeds of crime. It is thus seen in many situation that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A would be defeated. 112. Though ordinarily the Director ataches properties acquired subsequent to generation of proceeds of crime perhaps because front view is more comfortable than the back view while driving. In our opinion, it is not out of bounds for him to attach properties that came into existence before generation of proceeds of crime. 113. The provisions of attachment and ultimate confiscation are obviously intended to neutralize the financial benefits that the money launderer gains by committing the scheduled offences. That objective may not be achieved in certain circumstances unless the Director has powers to attach properties acquired even before the generation of proceeds of crime. The Director cannot be faulted as long as the value of the properties attached does not exceed the quantum of crime. 114. The value of the property cannot be conceived in a vacuum. It has to have reference to a physical entity. Therefore, in our considered view the Director is entitled to attach any property of equivalent value, irrespective of its date of acquisition by the Defendant". The following observations of the Division Bench of the Delhi High Court in case of J. Sekar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... never disclosed that the subject-property has been sold to the petitioner-company. This, in my opinion, cannot be a reason to oppose the release of the subject-property from attachment. Rather, the ED on its own should have moved to release the subject-property in favor of the petitioner-company and attached other property or bank account of the accused, as has been done in 2nd and 3rd attachment proceedings against M/s Domco Pvt. Ltd. and the other accused. 9. Mr. Amit Kumar Das, the learned counsel for the ED has raised inter alia the following fourfolds submissions to oppose this writ petition: (i) on the basis of RC/221/2014/E/0015 filed by the CBI, the ED has registered ECIR at New Delhi and the orders of confirmation of the attachment have been passed by the Adjudicating Authority at New Delhi; (ii) by virtue of the order passed by the Hon'ble Supreme Court in Writ Petition (CRL.) No(s). 120 of 2012 and batch cases and also in "Girish Kumar Suneja v. CBI" (Criminal Appeal No. 1137 of 2017) all cases pertaining to coal-block allocation have to be investigated by the Designated Authority and tried at the Designated Court at New Delhi; (iii) in respect of the subje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condly, the petitioner-company has brought on record the proceedings of the cases filed by the ED in the High Court of Jharkhand against the orders passed by the Appellate Tribunal under the PML Act against the confirmation order of the Adjudicating Authority, such as: order dated 5th June 2020, 6th November 2020 and 4th December 2020 in A.C. (S.B) No. 1 of 2019; order dated 5th June 2020, 6th November 2020, 4th December 2020 and 22nd January 2021 in A.C (S.B) No. 03 of 2019; order dated 5th June 2020, 6th November 2020, 4th December 2020 and 22nd January 2021 in A.C (S.B) No. 4 of 2019. 15. The petitioner-company has also produced the proceedings dated 15th October 2019, 27th May 2021 and 28th May 2021 in W.P.(Cr.) No. 326 of 2019 which has been filed by M/s Domco Pvt. Ltd. and other accused persons to challenge the very registration of the ECIR. In this writ petition, the ED has filed counter-affidavit and appeared on different dates. The learned counsel for the petitioner-company submits that the writ Court has granted interim protection to the accused persons by an order dated 15th October 2019 passed in W.P.(Cr.) No. 326 of 2019 and the said order has been extended by an orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to its representation for release of the subject-property and, in turn, infringed its Constitutional and statutory rights. It is further submitted that the technical objection raised by the ED that the provisional attachment order has been confirmed by the Adjudicating Authority and is subject-matter before the Appellate Tribunal is without any substance inasmuch as just by providing an information to the Appellate Tribunal the desired purpose can be achieved or the ED itself may issue an addendum to 1st provisional attachment order. 19. The right to property is a Constitutional right under Article 300-A of the Constitution of India and every citizen of the country has a right 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. In Andi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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