9911796707
TMI Blog2023 (6) TMI 791X X X X Extracts X X X X X X X X Extracts X X X X ..... n the other hand, sub-section (5)(b) provides that a Bench may be constituted by the Chairperson with one or two Members, as the Chairperson of the Adjudicating Authority may deem fit. Hence, it is evident that the Chairperson has the discretion even to function with only one Member, which can very well be herself/himself. Proceeding on such premise, the objection as to coram non judice cannot be accepted. Hence, on a comprehensive interpretation of Section 6, it is clear that not only has the Chairperson the discretion to constitute a Bench with only one Member, but the norm also as per Section 6(7) is that the Bench will consist of a single Member and, only if the case is of a critical nature, a Bench consisting of two Members will be assigned the hearing - In the present case, the Chairperson, as a single Member, has proceeded to take up the hearing of the application under Section 17 of the PMLA which, in the light of Section 6, cannot be held to be vitiated on the ground of coram non judice. Apprehension of bias - Chairperson has been proceeding in hot haste and fixed the first hearing at the office of the ED, which is itself the complainant - HELD THAT:- The responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Constitution are already included within the comprehensive reading of the special category Police in the Appellate Side Rules, therefore, there is no need to mention CBI and Central Agencies separately. Accordingly the same stood deleted. 2. It is contended that since the ED is a Central Agency, the said exclusion applies to the present case. 3. Learned senior counsel appearing for the petitioners submits that the present writ petition has not been filed against any inaction or action of the Police or any Central Agency, including the ED. The challenge has been preferred with regard to the jurisdiction of the Adjudicating Authority under the Prevention of Money-Laundering Act, 2002 (hereinafter referred to as the PMLA ), which is a quasi-judicial statutory authority and not a Central Agency . 4. Learned senior counsel also places reliance on an unreported judgment dated December 23, 2022 of a Division Bench of this Court, presided over by the then Hon ble Chief Justice himself, in MAT 1762 of 2022 [Directorate of Enforcement, Ministry of Finance Vs. Menka Gambhir and another], where it was observed that if the learned Single Judge had no jurisdiction to pass t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the conduct of the Adjudicating Authority clearly shows bias against the petitioners. The venue of the first hearing was fixed as the ED Office itself. Since the ED is the complainant, it is argued that such fixation of venue itself vitiates the authority of the Chairperson. 11. It is further contended that a rejoinder used by the ED was filed on the date of hearing. However, the Authority, without granting any opportunity of hearing to the petitioners, closed the arguments. Even no opportunity of filing any objection was granted to the petitioners. 12. Subsequently, upon the writ petition having been filed and brought to the notice of the Authority, the Authority observed that it would not rely on the rejoinder, which position was again resiled from in a subsequent order. 13. In its order dated May 27, 2023, the Adjudicating Authority mentioned that learned counsel of the ED could not join the final argument and the officer of the ED relied on the contents of the original application. It was recorded in the said order that no prejudice was caused to the interest of the petitioners as a result of the inability of the petitioners to hear the proceeding, because nothing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, there is no irregularity in the Chairperson taking up the matter himself. 20. Insofar as the objection of the petitioners to the venue being fixed in the ED Office is concerned, it is submitted by learned counsel for the ED that, vide order dated May 27, 2023, it was clarified that the Adjudicating Authority did not sit in the Office of the ED on the date of hearing but in the Office of the Settlement Commission of the Custom and Central Excise Department, although situated on the same floor of the same building. It was stated to be only an administrative requirement and not any favour. 21. In fact, in a communication of the petitioners counsel, the petitioners counsel had conceded to the direction of the Chairperson that the rejoinder filed by the ED would not be taken into consideration, though its counsel/officers present were allowed to rebut orally the reply of the defendants. Such communication was made vide e-mail dated May 26, 2023, which is produced by both the parties. In the same e-mail, counsel for the petitioners requested the Adjudicating Authority to list the matter for hearing after June 14, 2023, as he was travelling and had no access to the records. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On the other hand, sub-section (5)(b) provides that a Bench may be constituted by the Chairperson with one or two Members, as the Chairperson of the Adjudicating Authority may deem fit. Hence, it is evident that the Chairperson has the discretion even to function with only one Member, which can very well be herself/himself. Proceeding on such premise, the objection as to coram non judice cannot be accepted. 28. Again, the ED has relied on sub-section (7) of Section 6 which provides that, if at any stage of the hearing of any case or matter, it appears to the Chairperson or a Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting of two Members, the case or matter may be transferred by the Chairperson or, as the case may be, referred to him for being transferred, to such Bench as the Chairperson may deem fit. 29. Hence, on a comprehensive interpretation of Section 6, it is clear that not only has the Chairperson the discretion to constitute a Bench with only one Member, but the norm also as per Section 6(7) is that the Bench will consist of a single Member and, only if the case is of a critical nature, a Bench consisting of two Mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, the mere selection of the ED office as a venue in the present context, in the absence of any other clinching factor to indicate bias, would not vitiate the proceeding, more so since the matter has not yet reached the final hearing stage. 38. That apart, it is also an admitted position that the petitioners themselves participated, through counsel, in the first hearing, which was ultimately not held in the ED office but elsewhere in the same building. Thus, the objection as to venue has now turned stale, having never been agitated at the relevant point of time by the petitioners. 39. Insofar as the rejoinder is concerned, the Chairperson of the Adjudicating Authority made it clear that he will not rely on the rejoinder. In fact, learned counsel for the petitioners had expressed his appreciation on such count in writing to the Chairperson. Hence, at this belated stage, the petitioner cannot resile from such position and agitate its perceived lack of opportunity to deal with the rejoinder. 40. Hence, the same is also not a valid defence for the petitioners. 41. An argument which could rationally be raised by the petitioners with regard to Section 6(5)(b) is that, sin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
