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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 ..... been provisionally attached: (i) Balance lying in the bank account number 627905500301 in the name of M/s Shivam Agency held with ICICI Bank, Kalakar Street, Kolkata on which debit freeze has been imposed: = Rs 72,61,512. 94/- (ii) Balance lying in the bank account number 35070641748 in the name of M/s Shivam Agency held with State Bank of India, Nimtala Branch, Kolkata = Rs. 5,40,123.75 (iii) Balance lying in the bank account no 02192560015701 in the name of M/s Shivam Agency held with HDFC Bank, Buna Bazar, Kolkata = Rs. 22,62,536.79 (iv) Balance 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended that 90 days period in filling of the Prosecution Complaint after passing of the Confirmation Order (impugned Order) expired on 18.10.2018. In this regard he pointed out that Section 8(3) of PMLA was amended to introduce with effect from 19.04.2018 a period of 90 days for completion of investigation from the date of passing of the Confirmation Order of the attachment. He stated that further amendment to Section 8(3) of PMLA came into effect from 21.02.2019 whereby the period to complete investigation was made 365 days from the date of confirmation of Provisional 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LA-4358/KOL/2021 in the matter of Ayush Kejriwal v. The Deputy Director, Directorate of Enforcement, Kolkata (dated 01.05.2024); in FPA-PMLA-3207/KOL/2019 in the matter of Kokila Purshottamdas Sanghvi v. The Deputy Director, Directorate of Enforcement, Kolkata (dated 24.07.2024); & in FPA-PMLA-4599- 4600/DLI/2022 in the matter of Mr. Irfan Ahmed Siddique & Al Mehmood Education Society v. The Deputy Director, Directorate of Enforcement, Delhi (dated 24.09.2024). She therefore prayed that the Appeal may be dismissed. 6. We have considered the rival submissions and the material on record. It is 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e investigation to be completed within 365 days or the pendency of the proceeding in a court relating to any offences under the Act of 2002. The period of interim order precluded the respondents to file the prosecution complaint cannot be taken to the benefit of the appellant and thereby we are unable to accept the arguments of the appellant regarding lapse of the order of provisional attachment or as to its confirmation. The explanation to Section 8(3) of the Act, 2002 has been ignored by the appellant which excludes the period of an interim order of the court from the period of 365 days. The argument is that 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n whose property has been attached or seized and pendency of the proceedings against him in a Court of law rather what is required is the investigation and pendency of proceedings relating to 'any offence' under this Act. Further, section 5(1) refers to 'any person', which would include even those who have not been charged for an offense, however, are in possession of the proceeds of crime. The interpretation of 'any person' under section 5 cannot be kept limited to the 'accused' who has been charged with an offence. It is wide enough to include persons who are in possession of the proceeds of 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) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he criminal proceedings. Attachment of property from third party can be when the accused involved in predicate offence has parked it with such person or it was arranged in such a manner where proceeds of crime may not remain in the hands of the accused so as to be attached but to be kept with other person not involved in the crime. Since the emphasis is to attach the proceeds of crime, it is not necessary it to be from the accused but wherever it exists, the attachment can be made. In view of the above, bare reading of the provision does not support the argument raised by the appellant. The judgement of the Apex Court in the case of Vijay Madanlal Choudhary (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are kept or by whosoever they are holding it. Reference of the judgment in the case of Attorney General for India & Ors. vs. Amratlal Prajivandas & Ors. (1994) 5 SCC 54 has been given. In this regard, Paras 65, 68 and 69 of the judgment of the Apex Court in the case of Vijay Madanlal Choudhary (supra) are quoted hereunder: "65. As aforesaid, in this backdrop the amendment Act 2 of 2013 came into being. Considering the purport of the amended provisions and the experience of implementing/enforcement agencies, further changes became necessary to strengthen the mechanism regarding prevention of money laundering. It is not right in assuming that the attachment of property (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 sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same would render to defeat intention of the legislature and frustrate the object of the Act. In light of the above, the argument that the appellant has not been named as an accused in the FIR or ECIR would not be of any consequence as ultimately what is relevant is the property that was seized being 'proceeds of crime'. An example in reference to it has been given in preceding paras. If the argument of the appellant is accepted, then it would become very convenient for the accused to park the proceeds of crime" with third person not involved in the crime and in that case, the third person being not accused would always raise a plea that property with him could not have been 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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