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TMI Blog2024 (12) TMI 1308X X X X Extracts X X X X X X X X Extracts X X X X ..... 180 days - HELD THAT:- The issue was meticulously considered and decided by the Telangana High Court. It is after taking note of the Judgement of the Apex Court in the case of Prakash Corporates vs Dee Vee Projects Limited [ 2022 (2) TMI 1268 - SUPREME COURT ]. The Judgement in the case of Prakash Corporates [ 2022 (2) TMI 1268 - SUPREME COURT ] has distinguished its earlier Judgement in the case of S. Kasi v. State [ 2020 (6) TMI 727 - SUPREME COURT ]. The Judgement in the case of S. Kasi was discussed therein and found it to be in reference to Article 21 of the Constitution of India whereas the case of attachment of properties is not governed by Article 21 of the Constitution of India. The attachment would lapse in the present case because the period subsequent to 15.03.2020 is to be eliminated for determination of the period of 180 days and in that case, the impugned order of attachment would not lapse. No scheduled offence and offence of money laundering is made out as per the observation of Ld. Special Judge (PMLA), Dehradun, Uttarakhand - HELD THAT:- The High Court found a case under the Act of 2002 after considering all the relevant facts which includes the order passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t argument raised by the appellant is that the Adjudicating Authority has failed to make consideration of any of the issue raised by the appellant. Reference to the Judgment of Delhi High Court has been given - The position of the fact is that now this Tribunal has taken up each issue raised by the appellant and the order has been passed in reference to each issue. It is after analyzing the issue separately. Even the impugned order has been passed by using the technology of cut-copy-paste without appreciating the material on record -the impugned attachment order passed by Ld. Adjudicating Authority may be set-aside - the last issue raised by the appellant remains of no consequence. There are no merit in the appeal - appeal dismissed. - JUSTICE MUNISHWAR NATH BHANDARI CHAIRMAN AND SHRI BALESH KUMAR MEMBER For the Appellants: Sh. Kanhaiya Singhal, Advocate For the Respondent: Sh. N.K. Matta, Advocate ORDER By these appeals, a challenge has been made to the order dated 09.06.2020 passed by the Adjudicating Authority confirming the provisional attachment order. 2. The learned counsel for the appellant has given brief facts of the case which are as under:- Brief facts of the Case 3. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) of PMLA, 2002 adjudicating proceedings has to be concluded within the period of 180 days however adjudication proceedings in this case was concluded by the Ld. Adjudicating Authority in 205 days (date of Provisional Attachment Order (PAO) is 18.11.2019 and date of its confirmation is 09.06.2020. It goes against the mandate of the provisions of the Act of 2002 and contrary to the settled law and therefore the impugned order passed by Ld. Adjudicating Authority is liable to be quashed and set aside. The Ld. Adjudicating Authority has wrongly taken the ground and concession of COVID- 19 pandemic for non-conclusion of adjudication proceedings within prescribed period of 180 days. The said issue was considered by High Court of Calcutta in Hiren Panchal vs Union of India, MANU/WB/0949/2022 which clearly enunciates the fact that benefit of extension of limitation period prescribed by Hon'ble Supreme Court of India in Suo Moto Writ Petition (Civil) No. 3/2020 vide the order dated 10.01.2022 is not applicable to the adjudication proceedings pertaining to attachment of properties under PMLA, 2002. The Special Leave to Appeal challenging the said order was dismissed by the Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LA) under Section 8(5) of PMLA, 2002 and attachment would result into confiscation only if the case of the prosecution is proved beyond reasonable doubt in the criminal court. The Supreme Court in J. Sekar @ Sekar Reddy vs Directorate of Enforcement reported in (2022) 7 SCC 370 clearly enunciated that offence of money laundering has to be proved beyond reasonable doubt and not on preponderance or probabilities. Merits of the present case clearly suggests that the Directorate of Enforcement has not placed appropriate evidence on record to prove its case beyond reasonable doubt. The impugned order passed by Ld. Adjudicating authority has not even considered the merits of the case and has passed the order merely on assumptions which is not permissible as per the mandate of J.Sekar @ Sekar Reddy (Supra). (iv) It would be relevant to note that Appellant Dinesh Pratap Singh has preferred an application under 438 Cr.P.C. seeking anticipatory bail before Ld. Special Judge (PMLA), Dehradun, Uttarakhand and said Court vide its order dated 13.06.2023 while allowing the said application opined that in the present case there are reasons to believe that the Appellant herein has not committed off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lement of certainty than it cannot be relied. C. NO DIRECT NEXUS FOUND BETWEEN SCHEDULED OFFENCE AND PROPERTIES IN QUESTION VIS-A-VIS PRINCIPLE OF VALUE THEREOF (i) It is an admitted case of the prosecution that the properties attached by the Directorate of Enforcement has not been obtained or purchased out of the proceeds of crime as defined under Section 2(1)(u) of PMLA, 2002. The properties attached are on the principle of value thereof prescribed under the said provision. It is trite principle of law that though the Directorate of Enforcement has power to attach property on the principle of value thereof, but the property must have direct nexus between tainted money obtained from the scheduled offence and purchase of the property which is absent in the instant case. Reliance is placed on Judgement in the case of Seema Garg vs Deputy Director, Directorate of Enforcement, 2020 SCC OnLine P H 738. It is relevant to note that the judgment of Seema Garg (Supra) is binding precedent on the Tribunal as the SLP against the said judgment was dismissed by the Supreme Court. (ii) Further reliance is being placed on Surendra Singhi vs The Joint Director, Directorate of Enforcement, Hyderab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as including stamp duty and relevant taxes. (ix) It was further submitted that the unsecured loans taken by the Smt. Alka Singh was returned in Financial Year 2018-19. In addition to it, Rs. 15,10,000/- (Rupees Fifteen Lacs Ten Thousand Only) and Rs. 30,00,000/- (Rupees Thirty Lacs Only) was received from the husband Sh. Dinesh Pratap Singh who was having legitimate income from salary and agriculture and out of said fund, Rs. 20,00,000/- (Rupees Twenty Lacs Only) was paid back to Sh. Anil Singh and Rs. 10,00,000/- (Rupees Ten Lacs Only) was paid back to her mother namely Smt. Vedwati Singh and thereafter, additional Rs. 5,00,000/- (Rupees Five Lacs Only) was paid back to Sh. Anil Singh by Smt. Alka Singh out of her personal income. Later on, sum of Rs. 15,10,000/- (Rupees Fifteen Lacs Ten Thousand Only) was also paid back to Sh. Dinesh Pratap Singh by Smt. Alka Singh Furthermore, the amount paid by Narendra Singh i.e. Rs. 64,00,000/- (Rupees Sixty Four Lacs Only) was paid out of his transport business and agricultural income. From the transaction, it is apparent that Rs. 15,10,000/- (Rupees Fifteen Lacs Ten Thousand Only) was paid back to husband Sh. Dinesh Pratap Singh. (x) From a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visional attachment order is made by the concerned officer of Directorate of Enforcement, it is mandatory for him to record reasons to believe in writing at the time of passing of Provisional Attachment Order (PAO) that possession of proceeds of crime is likely to be alienated or transferred. The said mandate has not been followed by the Directorate of Enforcement in the present case. In the cases pertaining to non- compliance of mandate of Section 5(1) of PMLA, the constitutional courts have quashed the attachment orders. Reliance is placed on Judgment in the case of Suman Chattopadhyay vs Directorate of Enforcement, Govt. of India, 2022 SCC OnLine Cal 1807 and Kaushalya Infrastructure Development Corporation Ltd. Vs Union of India, MANU/JH/0630/2021 in which examining the fact that appropriate compliance of Section 5(1) of PMLA, 2002 was not found in letter and spirit. The High Court quashed the Provisional Attachment Order. F. NON-CONSIDERATION OF MERITS AND DEMERITS OF THE CASE BY THE LD. ADJUDICATING AUTHORITY (i) The order passed the Ld. Adjudicating Authority clearly suggest that the said order was passed without due application of mind and even the contentions raised by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of land, the compensation for agriculture land was determined at the rate of non-agricultural land and thereby, an amount to the extent of Rs. 500 crores was awarded in excess of the amount due to the agriculturalists. The investigation was accordingly made and finding Revenue Officer, apart from others and agriculturists involved in the matter, the charge sheet was filed on 31.01.2018 with the addition of the offence under section 13 (1)(d) and section 8 and 9 of the Prevention of Corruption Act, 1988. The allegation was made against Dinesh Pratap Singh, the then Special Land Acquisition Officer and other officials of the Revenue Department for determination of compensation at higher rate for the land acquired for NHAI in connivance with other accused. 12. The police filed another charge sheet, No. 02B/18, on 23.09.2018, against Tirath Pal Singh and Raghuveer Singh (Revenue Officer). It was reported that Tirath Pal Singh and co- accused Raghuveer Singh manipulated the land records/documents in connivance of other accused under a conspiracy for change of land use from agriculture to non-agriculture, causing loss to the Government. It was found that after the notification for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the appellant and others. 16. The property of the appellant Dinesh Pratap Singh along with his wife Smt. Alka Singh was provisionally attached and the order of the attachment has been confirmed by the impugned order. We are dealing each issue raised by the appellant separately. Issue A 17. The appellant has prayed for lapse of the attachment for the reason that confirmation PAO was made by the Adjudicating Authority beyond a period of 180 days, therefore by virtue of section 5 of the Act of 2002, the attachment should lapse. We have considered the submission aforesaid and find that if the case simpliciter is taken in reference to the argument, the order of the attachment may lapse, however, the case has checkered history due to COVID-19. 18. It is a fact that the period intervening was substantially affected by Covid-19 when even lock down was imposed by Government of India on 23.03.2020. The provisional attachment order dated 18.11.2019 was required to be confirmed within 180 days, i.e. by the month of May, 2020. It is however a fact that the period after 23.03.2020 rather 15.03.2020 till 28.02.2022 has been excluded by the Apex Court for termination of proceeding in Suo Moto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll the date of passing of confirmation order to compute the period of 180 days. iv) It is relevant to note that the Apex Court in In re: Limitation (supra) took suo moto cognizance of the Covid-19 pandemic situation and extended the period of limitation from 15.03.2020 for the purpose of filing petitions/applications/suits/ appeals/all other proceedings under any general or special law before any Court or Tribunal. The object of such extension was in recognition of the difficulties that might be faced by lawyers/litigants to file their applications physically. The relevant paragraphs of In re: Limitation (supra) are extracted below: 1. This Court has taken suomotu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under special laws (both Central and/or State). 2. To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 96, Section 12-A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings. vi) For instance, Section 29A of the Arbitration Conciliation Act, 1996 provides a time limit of 12 months within which an award has to be passed. By virtue of In re: Limitation, 2022 (supra), the period from 15.03.2020 to 28.02.2022 shall be excluded to compute the period of 12 months under Section 29A of the Arbitration Conciliation Act, 1996. Similarly, Section 12A(3) of the Commercial Courts Act, 2015 provides an outer time period of three months within which pre-institution mediation shall be completed. However, by virtue of In re: Limitation, 2022 (supra), the period from 15.03.2020 to 28.02.2022 shall be 10 4 excluded to compute the period of 3 months. Therefore, In re: Limitation, 2022 (supra) states that wherever a statute prescribes a maximum period within which proceedings have to be completed, the period from 15.03.2020 to 28.02.2022 shall be excluded to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e excluded and a further period not exceeding thirty days from the date of order of vacation of such stay order shall be counted. (2) The Director, or any other officer not below the rank of Deputy Director, shall, immediately after attachment under sub- section (1), forward a copy of the order, along with the material in his possession, referred to in that sub-section, to the Adjudicating Authority, in a sealed envelope, in the manner as may be prescribed and such Adjudicating Authority shall keep such order and material for such period as may be prescribed. (3) Every order of attachment made under sub-section (1) shall cease to have effect after the expiry of the period specified in that sub-section or on the date of an order made undersub-section (3) of Section 8, whichever is earlier. (4) Nothing in this section shall prevent the person interested in the enjoyment of the immovable property attached under sub-section (1) from such enjoyment. Explanation.-For the purposes of this sub-section, person interested , in relation to any immovable property, includes all persons claiming or entitled to claim any interest in the property. (5) The Director or any other officer who provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. However, in appropriate cases the High Court can exclude certain period while computing the period of 180 days. For instance, this Court in Karvy Realty (India) Ltd. v. The Adjudicating Authority MANU/TL/2356/2022 noting that the Petitioner therein did not have sufficient time to effectively reply to the show cause notice under Section 8(1) of the PMLA granted extra time of two months reply to the show cause notice. The Court therein directed that such extra time of two months shall be excluded to compute the period of 180 days. The relevant paragraph is extracted below: 22. In view of the above discussion, this Writ Petition is disposed of granting two months time from today to the petitioners to submit their explanation/reply to the show cause notice dated 19.09.2022. However, it is made clear that the petitioners herein shall not seek further extension of time and they shall submit explanation/reply within the said extended period of two months by keeping in view the object and legislative intent of Section 8 of the Act, that the adjudicating process is time bound. It is relevant to note that for the purpose of computing the period of 180 days, the period which was extended b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d judgment [S. Kasi v. State, MANU/TN/7730/2020] is taken to its logical end, due to difficulties and due to present Pandemic, police may also not produce an accused within 24 hours before the Magistrate's Court as contemplated by Section 57 CrPC, 1973. As noted above, the provision of Section 57 as well as Section 167 are supplementary to each other and are the provisions which recognize the right of personal liberty of a person as enshrined in the Constitution of India. The order of this Court dated 23-3-2020 [Cognizance for Extension of Limitation, In re, MANU/SC/0505/2020: (2020) 19 SCC 10] never meant to curtail any provision of the Code of Criminal Procedure or any other statute which was enacted to protect the personal liberty of a person. The right of prosecution to file a charge-sheet even after a period of 60 days/90 days is not barred. The prosecution can very well file a charge- sheet after 60 days/90 days but without filing a charge-sheet they cannot detain an accused beyond a said period when the accused prays to the court to set him at liberty due to non-filing of the charge-sheet within the period prescribed. The right of prosecution to carry on investigation an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused was entitled for grant of the default bail. The Uttarakhand High Court in Vivek Sharma v. State of Uttarakhand [Vivek Sharma v. State of Uttarakhand First Bail Application No. 511 of 2020, order dated 12-5-2020 (Utt)] in its judgment dated 12-5-2020 has after considering the judgment of this Court dated 23-3-2020 passed in Cognizance for Extension of Limitation, In re [Cognizance for Extension of Limitation, In re, MANU/SC/0505/2020 : (2020) 19 SCC 10] has taken the view that the order of this Court does not cover police investigation. We approve the above view taken by the learned Single Judge of the Madras High Court in Settu v. State [Settu v. State, MANU/TN/3790/2020] as well as by the Kerala High Court [Mohd. Ali v. State of Kerala, MANU/KE/1171/2020], the Rajasthan High Court [Pankaj v. State, MANU/RH/0309/2020] and the Uttarakhand High Court [Vivek Sharma v. State of Uttarakhand First Bail Application No. 511 of 2020, order dated 12-5-2020 (Utt)] noticed above. xv) Relying on the decision in S. Kasi (supra), a learned single judge of the Delhi High Court in Vikas WSP Ltd. (supra) held that provisional attachment of properties deprives a party of his right to prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The same would not stand extended due to the above order of the Supreme Court. This becomes more evident from the order dated 06.05.2020 passed by the Supreme Court in I.A. 48411/2020, whereby it was pleased to extend the period of limitation prescribed under the Arbitration and Conciliation Act, 1996 and under Section 138 of the Negotiable Instruments Act, 1881, observing as under:- 31. In fact, the most relevant in this series of orders to the present controversy is the order dated 10.07.2020, which clearly shows that the above referred two orders of the Supreme Court were only in relation to the period of limitation and did not extend the period to do something required under a Statute or the period of validity of an order, as in the present case. Realizing such difference, the Supreme Court extended the period to pass an Arbitral Award under Section 29A and for completion of pleadings under Section 23(4) of the Arbitration and Conciliation Act, 1996 as also for completing the process of compulsory pre-litigation, mediation and settlement under Section 12A of the Commercial Courts Act, 2015, however, refused to extend the period of validity of a cheque. This itself shows that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pass orders confirming provisional attachment of properties. The relevant paragraphs are extracted below: 13. Considering the records available, submission of the parties and judgments/order relied upon by them and following the judgment of the Hon'ble Supreme Court in the case of S. Kasi (supra) in my considered opinion the Adjudicating authority/Respondent No. 2 cannot be called a litigant or advocate or a quasi-judicial authority and cannot take the benefit of the order of the Hon'ble Supreme court passed in Suo moto Writ Petition (Civil) No. 3 of 2020 (supra) by taking the stand that on the expiry of validity of the said provisional attachment order after 180 days under Section 5 (3) of the aforesaid Act, the same would be deemed to have been extended automatically by virtue of the aforesaid order of the Hon'ble Supreme Court when he was not required to pass any formal order of extension of the same under Section 8 (3) of the aforesaid Act. I am of the considered opinion that such stand of the Respondent No. 2 is legally not sustainable since the impugned order of provisional attachment of bank accounts and postal accounts in question of the petitioner, dated 11th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... privation of right to property. The relevant paragraphs are extracted below: 15. It is further relevant to state that the orders passed by the Supreme Court in the Suo Motu writ petition mention specific provisions in specific statutes such as Sections 23(4) and Section 29A of The Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and Section 138 provisos (b) and (c) of the Negotiable Instrument Act, 1881. On an examination of the specific statutes mentioned by the Supreme Court, it will be seen that all these statutes prescribed provide for specific time frame for instituting a suit, filing a claim/counter claim or an application in furtherance of a remedy provided under the statute. The intention was hence to preserve the right of a litigant to seek a remedy under the Act and not to deprive a litigant of such right of remedy where the litigant has not been able to physically come to the Court or to the Tribunal to file the proceeding in aid of the right. 16. The right thus conferred by the Supreme Court is in relation to the prescribed period of limitation in instituting a proceeding. 18. Section 5(3) is a clear embargo on the order of attachme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of written statements beyond the prescribed time-limit. 22. The reasoning in S. Kasi would apply to the present case. The Supreme Court recognised that the 23rd March, 2020 order in the Suo Motu writ petition was for the benefit of those whose remedy may be barred by time because of not being able to physically come to Court to file proceedings. The Supreme Court made a distinction between the benefit given to litigants and extension of time for filing of a chargesheet by the police as contemplated under Section 167(2) of the Cr.P.C. The Court also noted the element of personal liberty of a person which was required to be protected. Although, the right of the petitioners before the Court is more to do with the right not to be deprived of property save by authority of law-Article 300A, the petitioners have established a case where such right is under threat by the action of the ED. The litigants have been conferred a benefit under Section 5(1)(b) and 5(3) of the PMLA on the failure of the Authority to take action within the specified time frame. If the Authority does fail to take requisite steps, the right to relief arises immediately after exhaustion of the 180 days window and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmation of provisional attachment order until a formal confiscation order is passed. Section 5(4) clearly states that nothing in Section 5 including the order of provisional attachment shall prevent the person interested in the enjoyment of immovable property attached under sub-section (1) from such enjoyment. The need to take possession of the attached property would arise only for giving effect to the order of confiscation. This is also because sub-section (6) of Section 8 postulates that where on conclusion of a trial under the 2002 Act which is obviously in respect of offence of money- laundering, the Special Court finds that the offence of money- laundering has not taken place or the property is not involved in money-laundering, it shall order release of such property to the person entitled to receive it. Once the possession of the property is taken in terms of sub-section (4) and the finding in favour of the person is rendered by the Special Court thereafter and during the interregnum if the property changes hands and title vest in some third party, it would result in civil consequences even to third party. That is certainly avoidable unless it is absolutely necessary i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject, full effect is required to be given to such orders and directions. [To complete the scenario, we may indicate in the passing that even after we had heard this matter, there had been re-surge of Covid-19 cases with spread of a new variant of the virus. The drastic re-surge in the number of Covid cases has led this Court to again deal with the matter in SMWP No. 3 of 2020 on an application bearing No. 21 of 2022; and by the order dated 10-1-2022 [Cognizance for Extension of Limitation, In re, MANU/SC/0108/2022 : (2022) 3 SCC 117 : (2022) 2 SCC (Civ) 46 : (2022) 1 SCC (Cri) 580 : (2022) 1 SCC (L S) 501], this Court again restored the principal order dated 23-3-2020 [Cognizance for Extension of Limitation, In re, MANU/SC/0505/2020: (2020) 19 SCC 10 : (2021) 3 SCC (Cri) 801] and in continuation of the previous orders, has further directed that the period from 15-3- 2020 till 28-2-2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings. Be that as it may, the fresh order in SMWP No. 3 of 2020 need not be elaborated for the present purpose.] 32.2. In fact, in S. Kasi case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained the scope of the order passed in S. Kasi case and has categorically held that the same cannot be applied in a matter involving proceedings before a Court. The second respondent was exercising a quasi-judicial function and the ratio in S. Kasi case cannot be applied to such a quasi-judicial authority. In any case, we keep this issue open to enable the petitioner to agitate the same before the Appellate Tribunal. xxiv) This Court also disagrees with the view adopted in Vikas WSP Ltd. (supra), Gobindo Das (supra) and Hiren Panchal (supra). The decision in Vikas WSP Ltd. (supra) was stayed by a Division Bench of the Delhi High Court vide order dated 08.01.2021 in LPA 362/2020. In any case, the question regarding the application of In re: Limitation (supra) was left open. xxv) As far as Gobindo Das (supra), is concerned, though it is true that Adjudicating Authority is not a litigant, the authorized officer representing the ED is a litigant to the proceedings initiated under PMLA and for the purpose of application of In re: Limitation (supra). Therefore, where the ED has been diligent in provisionally attaching the property and filing the original complaint within 30 days under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l No. 452 of 2020]. The Judgement in the case of S. Kasi was discussed therein and found it to be in reference to Article 21 of the Constitution of India whereas the case of attachment of properties is not governed by Article 21 of the Constitution of India. 22. In the light of the Judgement of Telangana High Court and specifically the Judgement of the Apex Court in Suo-moto petition eliminating the period from 15.03.2020 till 28.02.2022 for termination of proceedings, we do not find that the attachment would lapse in the present case because the period subsequent to 15.03.2020 is to be eliminated for determination of the period of 180 days and in that case, the impugned order of attachment would not lapse. 23. The learned counsel for the appellant cited to the judgement of Kolkata High Court in the case of Hiren Panchal and even referred to the relevant para. The special appeal against the said order has been dismissed. 24. With utmost respect, we find that the direction of the Apex Court in the suo moto petition (supra) was not referred by the counsel before the High Court to show exclusion of the period of Covid-19 even for termination of the proceedings and was more persuaded b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the High Court has dismissed the writ petition preferred by the appellant and others after elaborate discussion of the facts and issues in reference to the provisions of the Act of 2002 and otherwise raised in this case. The bail order granted by the Special Judge (PMLA) cannot prevail on the detailed judgment of the High Court and otherwise while deciding the bail application, the court cannot draw final conclusions in regard to the involvement of the accused for commission of crime. It can record only prima facie opinion. Otherwise, if any observation in the bail order is taken to be final, then there would remain nothing in the trial. The reference of bail order has been given while the judgement in the petition filed with the appellant by the High Court has been suppressed and therefore it would be necessary to not only refer to the judgement of the High Court in the case of the appellant but to quote relevant paras, which are as under:- 4. The National Highways Authority of India ( NHAI ) had acquired land for widening of NH-74. A notification under Section 3 D of National Highways Act, 1956 ( the NH Act ) was issued. Different rates were fixed for 'Agricultural' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is any discrepancy in the order passed by the concerned SDM, it cannot be attributed to the petitioner. It is argued that this has been stated in para 11 of the affidavit filed in support of the petition and it has not been denied by the respondents in para 9.5 of the counter affidavit, where respondent has stated that it is a matter of record . (ii) According to the respondent, the acts that make out an offence against the petitioner is given in paras 9.6, 9.8, 9.9 and 9.10 of the counter affidavit filed by the respondent. But, whatever is stated in those paragraphs does not make out a prima facie case against the petitioner. (iii) In para 9.6 of its counter affidavit, the respondent has stated that despite the knowledge that the nature of land has already been notified in the notification issued under Section 3D of the NH Act, the petitioner sought an information regarding the nature of land and disbursed excess compensation. It is argued that under Section 3G of the NH Act, it was incumbent upon the petitioner, as a competent authority, to determine the market value of the land proposed to be acquired and for that purpose seeking information was mandatory or else the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpensation. Not only this, it is argued that at the stage of proceeding under Section 3C of the NH Act, an order was passed on 04.04.2014 by the then competent authority and in that order, it has categorically been stated that with regard to the nature of land, the objections could be considered while determining the compensation at the stage of Section 3G of the NH Act. 53. Learned counsel for the petitioners Arpan Kumar, Sanjay Kumar Chauhan, Vikas Kumar and Jagdish Arora would adopt the arguments as advanced on behalf of the petitioner Dinesh Pratap Singh. Learned counsel would also submit that the money which the petitioner Arpan Kumar had received, it was in lieu of a family settlement; he got Rs. 50 Lakhs and Rs. 50 Lakhs was received by his father and Rs. 5 Lakhs was received by his brother. It is also submitted that the petitioner Sanjay Kumar Chauhan and Vikas Kumar were employees of Revenue Department. They followed the orders of their superiors; they have not made any back dated entries. 56. Learned counsel for the petitioners Ramesh Kumar and Om Prakash also adopts the arguments as advanced on behalf of the petitioner Dinesh Pratap Singh. 58. Learned Senior Counsel woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereby clarified that proceeds of crime including property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence; 70. The offence of money laundering has been defined under Section 3 of the PML Act, which is punishable under Section 4 of it. Section 3 of the PML Act reads as hereunder:- 3. Offence of money-laundering.- Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money-laundering. Explanation.- For the removal of doubts, it is hereby clarified that,- (i) a person shall be guilty of offence of money-laundering if such person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with proceeds of crime, namely:- (a) concealment; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or , to give full play to the said provision so as to include every process or activity indulged into by anyone. Projecting or claiming the property as untainted property would constitute an offence of money-laundering on its own, being an independent process or activity. (c) ...... (d) The offence under Section 3 of the 2002 Act is dependent on illegal gain of property as a result of criminal activity relating to a scheduled offence. It is concerning the process or activity connected with such property, which constitutes the offence of money-laundering. The Authorities under the 2002 Act cannot prosecute any person on notional basis or on the assumption that a scheduled offence has been committed, unless it is so registered with the jurisdictional police and/or pending enquiry/trial including by way of criminal complaint before the competent forum. If the person is finally discharged/acquitted of the scheduled offence or the criminal case against him is quashed by the Court of competent jurisdiction, there can be no offence of money- laundering against him or any one claiming such property being the property linked to stated scheduled offence through him. 73. The question for co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Supreme Court in some other context discussed the concept of a prima facie case and observed that a prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. SPECIAL SESSIONS TRIAL NO.14 OF 2022 77. In this case, cognizance has been taken on 06.09.2022 against the petitioners Dinesh Pratap Singh, Arpan Kumar, Barinder Singh, Vikas Kumar, Bhole Lal, Jagdish Arora and others. It is not the case of exercise of excessive jurisdiction by the petitioner Dinesh Pratap Singh and others. But, it is the case of the complainant that in order to give an undue advantage to the farmers, under a conspiracy, back dated orders under Section 143 of the ZA Act, 1950 were prepared; back dated entries were made; they were entered into computer systems and an excessive compensation was procured in the name of farmers, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice charge sheet mentioned above, Jagdish Kumar Singh, in connivance with Dinesh Pratap Singh (the then CALA/SLAO, Udham Singh Nagar/Nainital), Bhole Lal (the then Naib Tehsildar, Tehsil Jaspur), Vikash Chauhan (Reader/Peshkar in SDM Court Jaspur), Anil Kumar (Sangrah Amin attached with Registrar Kanungo, Tehsil Jaspur) Middlemen and others managed to get the compensation at non-agricultural rate on the basis of back dated order. (h) that Dinesh Pratap Singh, the then CALA/SLAO passed an award No. 10/2016 dated 17-05-2016 (Annexure-33) duly amended vide compensation order No. 21/2016 dated 15.07.2016 (Annexure situated in Garhi Hussain, Jaspur, Udham Singh Nagar at non-agricultural rate; Jagdish Arora managed to get compensation of Rs. 8,22,46,232/- on 06.09.2016 fraudulently at non-agriculture rate for his land acquired for four-laning/widening of NH-74; that the compensation amount was credited, after deducting TDS, in the bank A/c No. 31936645640 of Jagdish Arora (Annexure B-28) maintained with State Bank of India, Jaspur, Udham Singh Nagar, Uttarakhand. (i) that the above said fact clearly proves that the said land of Jagdish Arora was clearly agriculture in nature at the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a higher rate. He and his family members received huge amount. By layering and integrating the amount by way of withdrawing in cash to hide criminal intention, according to the complaint, the petitioner Arpan Kumar projected the tainted money generated out of criminal activities as untainted by way of projecting the amount received as a help given by the petitioner Jagdish Arora. (para 9.3 of the complaint) 83. It is the case against the petitioner Dinesh Pratap Singh that he was actively involved in the process of activities connected with generation of 'Proceeds of Crime' generated through criminal activities related to a scheduled offence. (para 9.4 of the complaint) 84. The petitioner Bhole Lal was working as a Naib Tehsildar at the relevant time. According to the complaint, he had prepared and submitted back dated reports of Section 143 ZA Act, 1950. He was involved in the process of activities connected with generation of 'Proceeds of Crime' generated through criminal activities related to a scheduled offence. (Para 9.5 of the complaint) 85. It is the case against the petitioner Vikas Kumar, who was working as a Reader in the SDM Court, Jaspur that he made b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e as per Joint Measuring Survey (JMS) Report as per information received from the office of Project Director, Nazibabad, NHAI vide letter dated 11.08.2021 (Annexure B-29). (e) That Shri Dayanand Saraswati, the then SDM Kashipur submitted an enquiry report dated 17.03.2017 (Annexure B-14) to the then Kumaon Commissioner regarding the discrepancies found in the record of the said lands in revenue documents of SDM Court and Tehsil. (f) That in the statement of Sh. Rakesh Pradhan dated 27.07.2021, he inter alia stated that when he was posted as Rajaswa Ahlmad at S.D.M. Court, Kashipur during that time cases only upto No. 22/516 were registered in Misilband Panjika of revenue year 2009- 10; that Case No. 22/517 (2009-10) Balwant Singh, Village Banskhera Kala,Case No. 22/518 (2009-10) Pyara Singh Village Dabhora Musthakam, Case No. 22/519 (2009-10) Kashmir Kaur and Amarjeet Kaur village Dabhora Mustakam were not entered by him and also their case files were not available in his chargelist handed over by him upon his transfer, that the entries of above mentioned cases were entered back dated after his transfer from S.D.M. Court, Kashipur. (g) The above said facts clearly prove that the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for his lands acquired for four-laning/widening of NH-74 by NHAI; that the compensation amount was credited, after deducting TDS, in the joint Account No. 913010041809666 (Annexure B-30) maintained at Axis Bank, Kashipur, Udham Singh Nagar, Uttarakhand held in the name of Balwant Singh Barinder Singh. (k) The above said facts clearly proves the malafide intentions of Balwant Singh, Barinder Singh, Dinesh Pratap Singh (the then CALA/SLAO, Udham Singh Nagar/Nainital), Bhagat Singh Fonia (the then SDM, Kashipur/Jaspur), Sanjay Kumar Chauhan (the then Reader at SDM Court, Kashipur), Madan Mohan Palia (the then Naib Tehsildar Kashipur) attached with Registrar Kanungo, Tehsil, Jaspur) of causing huge financial losses to the Govt. treasury and corresponding financial gains to themselves. 88. The role of individual petitioners summoned in this case has been given at para 9 of the complaint. In para 9.1, the role of the petitioner Balwant Singh is stated. He is a farmer. His land was notified as 'Agriculture Land' under Section 3D of the NH Act. Under a conspiracy with the other petitioners and co-accused, he had obtained forged back dated orders under Section 143 of the ZA Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e process of activities connected with generation of 'Proceeds of Crime' generated through criminal activities related to scheduled offence. (Para 9.9 of the complaint) 95. The averments as made in the complaint definitely make out a prima facie case against all these petitioners. The cognizance and summoning order passed on 06.09.2022 is quite in detail. The court below has taken into consideration the material placed before it. Having considered the material, cognizance was taken and the petitioners and others have been summoned. This Court does not see any illegality in the summoning order. Therefore, there is no reason to interfere in the cognizance and summoning order dated 06.09.2022 passed in SST No. 15 of 2022. SPECIAL SESSIONS TRIAL No. 16 of 2022 96. In this case, cognizance and summoning order dated 06.09.2022 has been passed against the petitioners Dinesh Pratap Singh, Vikas Kumar, Bhole Lal and other co- accused. In fact, the role of revenue officers/officials is almost identical in the case of each farmer. The complaint in S.S.T. No. 16 of 2022 is a part of Annexure 15. In para 8.2.2, the summary of the case is given, which is as hereunder: 8.2.2. That during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... connivance with Dinesh Pratap Singh (the then Naib Tehsildar, Tehsil Jaspur), Vikas Chauhan (Reader/Peshkar in SDM Court Jaspur), Anil Kumar (Sangrah Amin attached with Registrar Kanungo, Tehsil Jaspur) middlemen and others illegally managed to get the forged back dated order u/s 143 of the UP ZA LR Act, 1950 passed and its subsequent entries in the revenue records and thereafter got the compensation at non-agriculture rate on the basis of the said back dated order. (i) That Dinesh Pratap Singh, the then CALA/SLAO, despite having clear information that the said land of Charan Singh has been mentioned as agriculture in the Notification No. S.O. 1218 (E) dated 07.05.2014 (Annexure B-19) issued u/s 3D of the NH Act, 1956, passed an award No. 10/2016 dated 17.05.2016 (Annexure B-33) duly amended vide compensation order No. 21/2016 dated 15.07.2016 (Annexure B-34) for the land at Khasra No.194 of 219 situated in Garhi Hussain, Jaspur, Udham Singh Nagar, at non-agriculture rate; (j) That Charan Singh received compensation of Rs. 8,03,76,699/- on 24.08.2016 and Rs. 3,97,77,317/- on 07.09.2016 fraudulently at non- agriculture rate for his lands acquired for four-laning-widening of NH- 74; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of it, the case against the petitioners in nutshell has been stated as follows: 8.2.3. That during the course of investigation under PMLA so far, it is revealed. (a) that the lands of Om Prakash and Pamesh Kumar s/o Chaudhary Ram were acquired by the NHAI for the four- laning/widening of NH-74 (Haridwar to Kashipur Section). The said lands were located at Khasra No.188 and 190 in village Garhi Hussain, Jaspur, Udham Singh Nagar and having area of 0.4462 hectare 0.1942 Hectare respectively; (b) that the nature of the lands were mentioned and notified as agriculture in the Notification No. S.O. 1218 (E) dated 07.05.2014 (Annexure B-25) issued u/s 3D of NH Act, 1956; (c) that Om Prakash and Ramesh Kumar s/o Chaudhary Ram did not submit any objection u/s 3C of NH Act, 1956 but Om Prakash and Ramesh Kumar s/o Chaudhary Ram and other interested persons submitted their claim u/s 3G (3) of the NH Act, 1956 vide application dated 13.06.2014 inter alia stating that the applicant used their land for agriculture for the livelihood of their family. The said information has been received from the office of the Special Land Acquisition Officer, Udham Singh Nagar/Nainital vide letter dated 29.06.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... griculture rate for their lands acquired for four-laning/widening of NH-74 (Haridwar to Kashipur Section); that the compensation amount was credited, after deducting the TDS, in the joint A/c No. 4485000100007348 of Ramesh Kumar Om Prakash maintained with PNB Jaspur, Udham Singh Nagar, Uttarakhand. (j) that the above said fact clearly proves that the said land of Ramesh Kumar and Om Prakash was clearly agriculture in nature at the time of land acquisition of widening of the National Highway. (k) That, Ramesh Kumar and Om Prakash, in connivance with Dinesh Pratap Singh (the then CALA/SLAO, Udham Singh Nagar/Nainital), Bhole Lal (the then Naib Tehsildar, Tehsil Jaspur), Vikas Chauhan (Reader/Peshkar in SDM Court Jaspur), Anil Kumar (Sangrah Amin attached with Registrar Kanungo, Tehsil Jaspur) middlemen and others illegally managed to get the forged back dated order u/s 143 of the U.P.Z.A. L.R. Act, 1950 passed and its subsequent entries in the revenue records and thereafter got the compensation at non- agriculture rate on the basis of the said back dated order. 100. The role of individual petitioner is given in para 9 of the complaint. In the instant case, the petitioners Ramesh Kuma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pprove the ratio, rather proper view was taken and for which we make reference of the judgement of the Delhi High Court in the case of Enforcement Directorate v. Axis Bank reported in 2019 SCC Online Del 7854 31. The relevant paras of the said judgment are quoted hereunder:- 106. Among the three kinds of attachable properties mentioned above, the first may be referred to, for sake of convenience, as tainted property in as much as there would assumably be evidence to prima facie show that the source of (or consideration for) its acquisition is the product of specified crime, the essence of money laundering being its projection as untainted property (Section 3). This would include such property as may have been obtained or acquired by using the tainted property as the consideration (directly or indirectly). To illustrate, bribe or illegal gratification received by a public servant in form of money (cash) being undue advantage and dishonestly gained, is tainted property acquired directly by a scheduled offence and consequently proceeds of crime . Any other property acquired using such bribe as consideration is also proceeds of crime , it having been obtained indirectly from a prohibit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in recovery of the proceeds of crime and vesting it in the Central Government for effective prevention of money-laundering. 34. The judgement aforesaid covers the issue and otherwise Delhi High Court in the case of Prakash Industries Ltd. v. Directorate of Enforcement reported in 2022 SCC OnLine Del 2087 has considered its earlier judgement in the case of Axis Bank and also Seema Garg (supra). 35. The relevant paras of the said judgment are also quoted hereunder for ready reference:- 76. Seema Garg principally holds that the phrase value of any such property and property equivalent in value held within the country or abroad cannot be ascribed the same meaning and effect. The learned Judges comprising the Division Bench then proceeded to hold that even if the intent of the legislature was to include any property in the hands of a person within the ambit of the expression proceeds of crime ‖ , there would be no need to create three limbs of definition of proceeds of crime. 79. Regard must also be had to the fact that the legislation itself is dealing with contingencies where proceeds of crime are layered and their origins camouflaged and masked enabling the accused to projec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruction but would clearly amount to the Court rewriting the provision itself in a manner that it stands deprived of vital and purposive content. The Court further notes that Axis Bank had enunciated important safeguards which would apply in respect of third-party interests in deemed tainted property. Those caveats duly secure and protect bona fide third-party interests created for valid consideration. This Court, thus, reaffirms those defences as were culled out in Axis Bank. The Court thus reiterates the interpretation accorded to Section 2(1)(u) by this Court in the aforesaid decision. Consequently, and for all the aforesaid reasons this Court finds itself unable to agree with the principles as laid down in Seema Garg as well as the subsequent decisions rendered by the Andhra Pradesh High Court in Kumar Pappu Singh Vs. Union of India and the Patna High Court in HDFC Bank Limited Vs Government of India, Ministry of Finance. 81. The Court also takes note of the position that although SLP (Crl) No. 28906/2019 is pending before the Supreme Court against the decision rendered in Axis Bank, the judgement of this Court has not been stayed or placed in abeyance. The interim order of 30 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pappu Singh (supra) and HDFC Bank limited (supra) in which the proportion laid down by the Punjab High Court in the case of Seema Garg (supra) has been retreated. We find that the judgement in the case of Seema Garg was subsequently considered by Delhi High Court in Prakash Industries (supra). It was in reference to the definition of proceeds of crime and reasons for non acceptance of the view taken in the case of Seema Garg has been given. 37. In our opinion, the issue is otherwise covered by the judgement of the Apex Court in the case of Vijay Madan Lal wherein the similar argument that the value of any such property would apply only when property is held outside the country was not accepted. 38. There are three limbs of the definition of proceeds of crime . The second limb, the value of any such property would apply when the proceeds of crime are not available, siphoned off or vanished. In that case, the attachment can be of the property of equivalent value. 39. The appellant has referred to the facts of the case to indicate that out of many properties attached by the respondents, one property was existing in the name of forefathers since 1960 and it came to the appellant pursua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f there remains undisclosed income though may have disclosed for the purpose of assessment, it would not nullify the rigor of the Act of 2002. 42. The appellant Dinesh Pratap Singh has even referred to the balance of Rs. 25,51,000/- in his bank account to justify the purchase of property apart from his agriculture income in the different financial years without referring to any document to prove the agriculture income other than the assessment order, if any, because agriculture produced is to be disclosed in the revenue record and otherwise by producing the receipt of amount on sale of the produce. The appellant has failed to submit any document to prove the same and accordingly we find that in the absence of the proof of source to acquire the property and that too worth of crores by the two appellants, it was rightly attached by the respondents. Since, total value of the proceeds was available with the appellant having vanished, the other properties and the value of any other property was attached. 43. We don't find any substance even in the third issue and is accordingly rejected. Issue D 44. The appellant has submitted that basic ingredient of section 3 of the Act of 2002 is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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