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TMI Blog2024 (5) TMI 778X X X X Extracts X X X X X X X X Extracts X X X X ..... mar Spl., P.P in W.A.Nos.2137 & 2138 of 2012, Mr.V.Parivallal Spl., P.P., in W.a.No.2139 & 2140 of 2012 For the Respondents : No Appearance for RR1 to R3 in W.A.Nos.2137, 2138 & 2140 of 2012, No Appearance for R4 in W.A.No.2139 of 2012 COMMON JUDGMENTS Mr. K. KUMARESH BABU., J. These Intra Court Appeals have been preferred by the Enforcement Directorate challenging a portion of the order by which the learned Single Judge had directed the Department to put back the respective Writ Petitioners into possession of the properties by holding that "possession", as envisaged under Section 8(4) of the Prevention of Money Laundering Act, 2002, (hereinafter referred to as "PMLA Act"), would have to be construed as a symbolic/constructive possessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for recovery of the amount for the public exchequer. They would further submit that the learned Single Judge had relied upon various provisions of other enactment benefiting the interest of the owner of a property would be affected, if such actual possession is taken pending the trial of the criminal proceeding. They would submit that such view taken by the learned Single Judge goes against the object and the purpose of the PMLA Act. Therefore, they would seek interference of this Court. 4. We have considered the submissions made by the learned Special Public Prosecutor appearing for the appellants and also perused the materials placed on record. 5. These Writ Appeals arise out of two adjudicatory proceedings. Even though a contention as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a complaint under sub-section (5) of Section 5, or applications made under sub-section (4) of Section 17 or under sub-section (10) of Section 18, if the Adjudicating Authority has reason to believe that any person has committed an offence under Section 3 or is in possession of proceeds of crime, it may serve a notice of not less than thirty days on such person calling upon him to indicate the sources of his income, earning or assets, out of which or by means of which he has acquired the property attached under sub-section (1) of Section 5, or, seized under Section 17 or Section 18, the evidence on which he relies and other relevant information and particulars, and to show cause why all or any of such properties should not be declared to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch attachment or retention of the seized property or record shall:- (a) continue during the pendency of the proceedings relating to any scheduled offence before a Court; and (b) become final after the guilt of the person is proved in the trial Court and order of such trial Court becomes final. (4) Where the provisional order of attachment made under sub-section (1) of Section 5 has been confirmed under subsection (3), the Director or any other officer authorised by him in this behalf shall forthwith take the possession of the attached property. (5) Where on conclusion of a trial or any scheduled offence, the person concerned is acquitted, the attachment of the property or retention of the seized property or record under subsection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 71. Act to have overriding effect:- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. 10. The said provision had not been noted by the learned Single Judge nor it had been brought to the notice of the learned Single Judge of existence of such a provision. When an Act by a non obstante clause makes it clear that the said provision of the Act will have effect notwithstanding anything inconsistent contained in any other law, then the said enactment would prevail over all the existing laws. Therefore, the reasoning assigned by the learned Single Judge that the term 'possession' if would mean taking actual physical possession would affect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n made to take physical possession, the same could be only viewed as to achieve the object for which the Act had been made. Further the reasonings given by the Division Bench of the Andhra Pradesh High Court which had been junked by the learned Single Judge for the reasons given by him seems to be the correct proposition of law in view of the amendment carried out by the Parliament in its wisdom. 15. For the foregoing reasons, we are inclined to hold that the order passed by the learned Single Judge in reading down the term "possession" under Section 8(4) of the PMLA Act would have to be interfered with by us and the direction issued by the learned Single Judge to put back the respective Writ Petitioners in actual possession of the propert ..... X X X X Extracts X X X X X X X X Extracts X X X X
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