9911796707
TMI Blog2023 (8) TMI 1539X X X X Extracts X X X X X X X X Extracts X X X X ..... IN/2019 (Stay) FPA-PMLA-3186/COCHIN/2019 - - X X X X Extracts X X X X X X X X Extracts X X X X ..... proportionate to the knownsources of income and thereby the appellant has not committed any offence. Ignoring the aforesaid, the Adjudicating Authority has confirmed the Provisional Attachment Order. Thus on all the grounds raised above, the provisional attachment and the order passed by the Adjudicating Authority deserves to be set aside. 6. The learned counsel for the respondents has contested the appeal and submitted that the FIR for the offence under Section 13(1)(d) and 13(2) of the Act of 1988 was registered on 17.11.2014 i.e., much subsequent to the amendment under the Act of 2002 to make offence under the Act of 1988 to be scheduled offence. The amendments were notified in year 2009 and 2013. The ECIR was recorded on 12.02.2015. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PMLA Act, 2002. The trial for the offence under PMLA is separate than the trial in the predicate offence. Looking to the aforesaid and to avoid frustration of the proceeding of confiscation, the respondents rightly invoked Section 5(1) of the Act. The prayer is not to interfere in the order of the Adjudicating Authority confirming the provisional attachment. 8. It is further, argued that in the investigation by the vigilance and even under the Act of 2002, the property disproportionate to the known-source of income was found in the hands of appellant Shri T.O. Sooraj. The chargesheet was filed after collecting the evidence for the aforesaid. At this stage, the Tribunal would not be competent to decide the issue finally as to whether the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heduled offence is the date when one projects tainted property to be untainted or involves oneself in money laundering and not the date of actual commission of predicate offence. The check period of income may be from the year 2004 to 2014 but the FIR was registered in the year 2014 and thereupon, ECIR was recorded on 12.02.2015. It is much subsequent to the amendment in the Act of 2002 to make an offence under the Prevention of Corruption Act to be a scheduled offence. In view of the above, we do not find that amendment under the Act by the notification of year 2009 or 2013 have been given retrospective effect in this case. 11. The second argument is on the facts. It is to show that no offence under Section 13 (1) (d) or 13 (2) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by him, as the case may be, shall be deemed to be an officer under sub-rule (e) of rule 1 of that Schedule: [Provided that no such order of attachment shall be made unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under section 173 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint has been filed by a person, authorised to investigate the offence mentioned in the Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be: Provided further that, notwithstanding anything contained in clause (b), any property of any person may be attached under this section if the Director or any other officer not below the rank of Deputy Director aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in case of conflict but in this case we do not find any conflict between two legislations. The property can be attached by the respondent department under Section 5 of the Act of 2002 but it can be when they possess material to show that property may be concealed, transfer or be dealt with in any manner to frustrate the proceeding of confiscation. When the property was already attached by the Special Court, how it could have been transferred or concealed. We, therefore, find that reasons to believe were recorded without application of mind. The material to attract Clause (b) of Sub Section (1) of Section 5 of the Act of 2002 is missing. 14. Accordingly, the last argument raised by the appellant is accepted and accordingly the order of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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