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TMI Blog2024 (12) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is therefore on record that the Prosecution Complaint was filed even before the confirmation of Provisional Attachment Order. On reading of the provisions of Section 8(3) of PMLA, it is obvious that while the investigations had to be completed within 90 days of the confirmation of the Provisional Order, there is no such requirement as to the investigations per se the person whose property has been attached was to be completed within the said 90 days. In fact, it is on record that the investigations were completed and the Prosecution Complaint under PMLA was lodged on 18.07.2018, even before the passing of the impugned Order on 20.07.2018. Perusal of the judgment of the Apex Court in Vijay Madanlal Chaudhary [ 2022 (7) TMI 1316 - SUPREME COURT ] clearly brings out that the objective of the Act is to immobilize the proceed of crime, irrespective of it being in the hands of the accused or any other person, till it s confiscation. The provisions of Section 8(3) (a) while providing for confirmation of either the attachment or seizure of the proceed of crime till the completion of investigation within the period stipulated therein, does not have the requirement of filing the Prosecu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce lying in the bank account no. 02191000117567 in the name of Shyam Sunder Bajaj, held with HDFC Bank Burra Bazar, Kolkata = Rs. 1755.05/- (v) Vacant Land measuring One Cottah 12 Chittacks comprised in R.S./L.R. Dag Nos. 2118, 2119 2120 under LR Khatian Nos. 924, 2865, 2645 3287 lying and situated at Mouza- Gopalpur, J L No 2, Touzi No. 2998, Re. Sa. No 140, Touzi No 2998, Hal Touzi No 10, Pargana- Kalikata, P.S. Airport, A.D.S.R.O. Bidhannagar, Salt Lake City within the local limit of Rajarhat Gopalpur Municipality, in ward No 7(New Jhilma Park, Kolkata 700136) in District North 24 Parganas, West Bengal acquired through Deed Number 1-01364 of 2013 dated 29.04.2013; Registered Value of the land = Rs. 6,00,000/- (vi) Share of Shri Shyam Sunder Bajaj in Office Premises situated at 55/1B Strand Road, Kolkata 700006 acquired from Gaylord Estates Pvt Ltd, vide agreement of transfer dated 05.06.1998. = Rs. 2,24,000/- TOTAL = Rs. 72,61,512.94/- + Rs. 5,40,123.75/- + Rs. 22,62,536.79/- + Rs1755.05/-+ Rs. 6,00,000/-+ Rs. 2,24,000/- = Rs. 1,08,89,928.53/- 2. The PAO was issued in view of the FIRs lodged by the Economic Offences Unit (EOU) of Bihar Police on the basis of complaints filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Attachment Order. Since during the relevant period the Prosecution Complaint against the Appellant had to be lodged within 90 days of passing of the impugned Order on 20.07.2018 and which could not be lodged by the Respondent Directorate, the PAO No.02/2018 lapsed. 4. Ld. Counsel for the Appellant cited the judgment dated 31.01.2024 of the Hon ble High Court of Delhi in WP(C) 10993/2023 CM APPL. 42616/2023 in the matter of Mr. Mahender Kumar Khandelwal Versus Directorate of Enforcement Anr. He drew attention to paragraphs 35 52 of the judgment which are as follows: 35. From the combined reading of the above provisions of the Act, it is evident that the powers of attachment, seizure and freezing of the properties and records becomes final on the order passed by the Special Court in relation thereto. The words 'proceedings relating to any offence under this Act' appearing in Section 8(3)(a) of the Act, therefore, has to be read in light of the above provisions to mean only a proceeding that is pending before a Special Court in relation to the property or records that are so attached or seized or frozen or with the respect to the person from whom such property was seized or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not disputed that the first Prosecution Complaint under PMLA was filed by the Respondent Directorate on 18.07.2018 that is even before the impugned Order dated 20.07.2018 which confirmed the PAO dated 01.02.2018 was passed. It is also not disputed that the Appellant was made an accused in the Supplementary Prosecution Complaint under PMLA which was filed on 17.12.2018. The provision of the statute viz. Section 8(3)(a) of PMLA required investigation to be completed within 90 days of the confirmation of the Provisional Attachment Order. It is therefore on record that the Prosecution Complaint was filed even before the confirmation of Provisional Attachment Order. However, Ld. Counsel for the Appellant has contended that the Appellant was made an accused only on 17.12.2018 when the Supplementary Prosecution Complaint was filed and hence the Attachment Order lapsed on 18.10.2018 when the period of 90 days from the passing of the impugned Order had expired. 7. The provisions of Section 8(3) of PMLA as it stood during the relevant period was as follows: Section 8 (3). Where the Adjudicating Authority decides under sub- section (2) that any property is involved in money laundering he shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution complaint has not been filed against the appellant after investigation. Section 8(3)(a) does not postulate investigation against the person whose property has been attached or even the criminal proceedings against such person, rather what has been provided is for continuance of the attachment till completion of investigation within 365 days or during the pendency of the proceedings for the offence under the Act of 2002. The pendency of the proceedings again does not postulate against the person whose property has been attached. The reason for it seems to be that after commission of the predicate offence and the offence of money laundering, accused may park 'proceeds of crime' with third person having no connection with the crime. The person in possession of the proceeds of crime' can be subjected to attachment and in that case since FIR is not registered against him so as the ECIR, the question of investigation against him so as the criminal proceedings would not arise. The attachment or seizure is permissible even in the hands of a person not arrayed as an accused. The reference of the judgment of the Apex Court in the case of Vijay Madanlal Chaudhary and O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f crime, irrespective of whether they are accused or not. The plain reading of section 5(1) read with section 8(3)(a) supports the finding. For better elucidation, we are reproducing the section 5(1) herein below: Section 5(1). Attachment of property involved in money-laundering.- (1) Where the Director or any other officer not below the rank of Deputy Director authorised by the Director for the purposes of this section, has reason to believe (the reason for such belief to be recorded in writing), on the basis of material in his possession, that- (a) any person is in possession of any proceeds of crime; and (b) such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime under this Chapter, he may, by order in writing, provisionally attach such property for a period not exceeding one hundred and eighty days from the date of the order, in such manner as may be prescribed: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... houdhary (supra) has otherwise clarified that attachment and seizure of the property and document can be from a person other than an accused and if that is so where would be a question of investigation against such person not named as accused or any proceeding in the court relating to the offence under the Act. When there is no necessity that property attached or seized should be from the accused, the question of completion of investigation within 365 days against a person other than accused would not arise. If the argument raised by the appellant is accepted, then virtually we would be re-writing the provision of section 8(3)(a) to insert the word for continuance of the investigation against the 'accused' and continuance of proceeding in the court against the 'accused'. The word 'accused' has not been inserted under the provision aforesaid and therefore only the Apex Court has held that attachment of the property in the hands of someone not an accused can also take place and if that is so, then there would no question of any investigation or proceeding against person who is not arrayed as an accused. The reason is very simple and can be given by illustratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y (provisional) under the second proviso, as amended, has no link with the scheduled offence. Inasmuch as section 5(1) envisages that such an action can be initiated only on the basis of material in possession of the authorised officer indicative of any person being in possession of proceeds of crime. The precondition for being proceeds of crime is that the property has been derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence. The sweep of section 5(1) is not limited to the accused named in the criminal activity relating to a scheduled offence. It would apply to any person (not necessarily being accused in the scheduled offence), if he is involved in any process or activity connected with the proceeds of crime. Such a person besides facing the consequence of provisional attachment order, may end up in being named as accused in the complaint to be filed by the authorised officer concerning offence under section 3 of the 2002 Act. 68. It was also urged before us that the attachment of property must be equivalent in value of the proceeds of crime only if the proceeds of crime are situated outside India. This argum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subjected to attachment. In the instant case, the accused Nirmal Kumar Kejriwal knowing it well that property with him may become subject matter of attachment or seizure gifted it to his grandson much after the registration of FIR and ECIR. The aforesaid cannot be considered to be bonafide rather designed to circumvent the provisions of law and the case registered against the accused. In view of the above, we are unable to accept the last argument raised by counsel for the appellant. The perusal of the para quoted above reveals that even as per the judgment of the apex court in Vijay Madanlal Choudhary (supra) it is not necessary that the attachment can be of the property only of the accused rather it is of the proceeds of crime whether in the hands of the accused or with the other person or it can be for value equivalent. Thus, we are unable to persuade ourselves to accept the argument of the appellant. In the light of the discussion made above, we do not find any merit in the arguments of the appellant. 9. Perusal of the judgment of the Apex Court in Vijay Madanlal Chaudhary (Supra) clearly brings out that the objective of the Act is to immobilize the proceed of crime, irrespecti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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