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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 ..... offence and would become final, if the guilt of a person is proved in trial. The learned Single Judge had interpreted the term possession under Section 8(4) to be only constructive possession by holding that the rights of the person whose properties available under any other enactment would be affected, if they are physically dispossessed of the property. This is the main bone of the reasoning that had been assigned by the learned Single Judge in coming to such a conclusion. 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 the existing right available under any other law would have to fall, in view of Section 71 of the PMLA Act. Similarly under the Rule making power clauses (ee) to subsection (2) of Section 73, had been introduced and pursuant to the said Rule Making Power, the Central Government had also notified the Prevention of Money Laundering (ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Division Bench of the Andhra Pradesh High Court, in which the Division Bench had interpreted the term 'possession' to mean and include taking of actual possession of the property by the Department to prevent wastage or spoilage of the property. They would further submit that a property which had been adjudicated upon by the Adjudicating Authority under the statutory provision unless and until the accused of a schedule offence is acquitted would not get released. On the conviction of an accused, all the properties that had been attached, would be subject to confiscation under the Act, to be dealt with by the Administrator empowered under the Act for the sale of the properties and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and particulars, and to show cause why all or any of such properties should not be declared to be the properties involved in money laundering and confiscated by the Central Government. Provided that where a notice under this sub-section specifies any property as being held by a person on behalf of any other person, a copy of such notice shall also be served upon such other person:- Provided further that where such property is held jointly by more than one person, such notice shall be served to all persons holding such property. (2) The Adjudicating Authority shall, after:- (a) Considering the reply, if any, to the notice issued under sub-section (1); (b) hearing the aggrieved person and the Director or any other officer authorised by him in this behalf; and (c) taking into account all relevant materials placed on record before him, by an order, record a finding whether all or any of the properties referred to in the notice issued under sub-section (1) are involved in money laundering:- Provided that if the property is claimed by a person, other than a person to whom the notice had been issued, such person shall also be given an opportunity of being heard to prove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coming to such a conclusion. 9. In that aspect, it would be relevant to note that Section 71 of the PMLA Act has an overriding effect of any other law for the time being that was in force. For better appreciation, the same is extracted hereunder:- 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 the existing right available under any other law would have to fall, in view of Section 71 of the PMLA Act. 11. Pending these Intra Court Appeals, the provisions of the PMLA Act had been amended. Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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