Partly allowed

FPA-PMLA-1077/JL/2015 of Jagminder Kaur Aulakh v/s The Deputy Director Directorate of Enforcement, Jalandhar & others

ATFP27 Sept 2016FPA-PMLA-1077/JL/2015

Case brief

AI extract

What is this about?

The Tribunal allowed the appellant to cut paddy from attached agricultural land as interim relief on humanitarian grounds, permitting 25% sale under supervision and requiring a bank guarantee for the balance 75%.

What did the court decide?

Allowed to cut paddy; 25% for sale under supervision, proceeds to FD; 75% retained subject to bank guarantee deposit if appeal fails.

FPA-PMLA-1077/JL/2015 of Jagminder Kaur Aulakh v/s The Deputy… — Money Laundering | ATFP (2016)

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APPELLATE TRIBUNAL, PREVENTION OF MONEY LAUNDERING ACT AT NEW DELHI

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Date of Decision: 27.09.2016

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MP-PMLA-2739/JL/2016 (Misc.) in FPA-PMLA-1077/JL/2015

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Jagminder Kaur Aulakh … Appellant/Applicant Versus The Deputy Director Directorate of Enforcement, Jalandhar … Respondents & others

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Advocates/Authorized Representatives who appeared

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For the appellant : Sh. R.K. Thakur, Advocate For the Respondent : Sh. S.A. Saud, Advocate SHRI KAUSHAL SRIVASTAVA : MEMBER

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JUDGEMENT

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MP-PMLA-2739/JL/2016 (Misc.) in FPA-PMLA-1077/JL/2015

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This is an application filed by the appellant praying for being allowed to take the agricultural produce (paddy) from the attached land measuring 35 Kanal 18 Marla at Village Kanwa, District Amritsar and agricultural land measuring 32 Kanal and 2 Marla at Village Lopoke, District Amritsar on humanitarian grounds. On the last date of hearing, the matter was adjourned to 21.09.2016 to enable the counsel for the respondent to obtain instructions in the matter.

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Shri S.A. Saud, Advocate learned counsel for the respondent submitted that the comments to the application had been received from the zonal office of the Directorate through e-mail but the formal reply could not be filed for want of signatures of the concerned Deputy Director, Enforcement Directorate, Chandigarh. However, considering the urgency, he sought liberty to file the comments received from the Enforcement

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FPA-PMLA-1077/JL/2015

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Directorate during the course of the day. Liberty as prayed was granted. Arguments were heard on behalf of both sides on 21.09.2016 and order was reserved.

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In the comments filed on behalf of the respondent, which were also argued by the learned counsel for the respondent when the matter was heard on 21.09.16, it has been stated that the possession of the attached lands in question has already been taken over by the respondent on 13.07.16. The agricultural lands in question were attached under the PMLA as proceeds of crime under a Provisional Attachment Order (P.A.O.) and subsequently confirmed by the adjudicating authority. Consequently, the agricultural produce (paddy) grown on the attached agricultural land is also proceeds of crime and to be treated on the same footing. It was submitted that the claim of the appellant that the paddy was required for the day to day livelihood and essential expenses of the appellant and her family was wrong and denied. It was further contended that the balance of convenience is also not in favour of the appellant as she is in possession of proceeds of crime derived from drug smuggling. The respondent have, therefore, opposed the application and requested that the same may be rejected.

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Shri R.K. Thakur, Advocate learned counsel for the appellant submitted that the application has not been made as a matter of right but by way of a mercy petition on account of the fact that the main accused in the case namely Shri Maninder Singh @Bittu Aulakh, husband of the appellant is under judicial custody for the last three years. There is also no other male member in the family, other than the appellant’s husband’s old & aged father, to look after the family comprising of herself, two school-going children and old and aged parents-in-law. According to him, the family is dependent on the proceeds of the agricultural produce grown

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FPA-PMLA-1077/JL/2015

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on the attached land for their day to day livelihood and essential expenses. In these circumstances, he prayed that the Hon’ble Tribunal may, on purely humanitarian grounds and as a one-time measure, allow the appellant to cut the paddy on the two attached agricultural lands in question with permission to dispose of the same in the market subject to such conditions as may be deemed appropriate by the Hon’ble Tribunal. In this respect he has also submitted that the related land have been got cultivated by letting it out to cultivators and as per the locally prevalent system, in such situation 50 % of the produce is required to be given to the cultivators and balance 50% is for the owners of the land and that this aspect may also be taken into consideration while passing orders in the matter.

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The arguments made by both sides have been considered. There is merit in the respondent’s submission that the attached property being agricultural land, the agricultural produce grown thereon (paddy) is also liable for attachment as proceeds of crime. As the possession of the said agricultural land was already taken over by the respondent, the possession of the agricultural produce grown thereon would also impliedly vest with the respondent. In this respect, however, the manner of taking over possession of attached properties confirmed by the Adjudicating Authority as provided in the Prevention of Money Laundering (Taking Possession of Attached or Frozen Properties confirmed by the Adjudicating Authority) Rules, 2013 (Possession Rules, 2013, for short) is required to be taken into consideration. The agricultural produce being liable to speedy and natural decay, guidance to the manner of taking possession of such properties is available by way of sub rule (2) of Rule (4) of the said Possession Rules, 2013 which provides that in respect of properties liable to speedy and natural decay, the authorized officer shall sell such property with the leave of the Special Court or Adjudicating Authority, and

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FPA-PMLA-1077/JL/2015

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deposit the sale proceeds in a nationalized bank in a fixed deposit and retain the receipt thereof.

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The respondent has disputed the contention of the appellant that the agricultural produce in question is required for the day to livelihood and essential expenses of the appellant and her family. However, this contention is without any supporting evidence or argument other than a bland statement that the appellant is in possession of proceeds of crime derived from drug smuggling. In the circumstances, taking into account the extenuating circumstances submitted by the learned counsel for the appellant, this Tribunal, purely as a humanitarian and one-time measure, is inclined to grant interim relief to the appellant in the manner as directed herein below.

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In view of the discussion above and purely as a humanitarian and one-time measure and by way of interim relief, the appellant is allowed to cut the paddy crop grown in the agricultural lands in question measuring 35 Kanal 18 Marla at Village Kanwa, District Amritsar and measuring 32 Kanal and 2 Marla at Village Lopoke, District Amritsar provided the cutting is carried out under the supervision of an authorized officer of the respondent. For this purpose, the appellant shall make a request to the head of the concerned Zonal Office of the Enforcement Directorate to nominate/authorize an officer for this purpose and on such request being made, the concerned Zonal Office shall, expeditiously and not later than three days thereof, nominate an officer as the authorized officer for the matter. On cutting of the paddy crop in the aforesaid manner, 25% of such produce may be disposed off in the market, under the supervision of the authorized officer, at the best available price and the sale proceeds deposited in a fixed deposit in the name of the respondent in a nationalized Bank and receipt thereof be handed over to the authorized

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FPA-PMLA-1077/JL/2015

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officer who will retain the same. The FDR shall be subject to the outcome of the appeal.

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The balance 75% of the produce is allowed to be retained by the appellant/applicant subject to the conditions as specified here-in-below, for meeting the daily needs and livelihood of her family as well as for sharing of the produce with the cultivators to whom the land may have been given for the cultivation/sowing etc. purposes. The condition for the subject interim relief is that the appellant shall submit to the zonal office of the respondent, an undertaking, duly backed by a bank guarantee or personal surety to the satisfaction of the respondent for an amount equal to the pro-rata amount towards notional sale value of the 75 % of the produce calculated on the basis of the sale value of 25% of the produce disposed off in terms of this order i.e. for an amount equal to three times the said sale value of 25% produce, to deposit the said amount with the Directorate within ten days of the outcome of the appeal should the appeal be decided against the appellant.

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In case the interim relief in terms of this order is availed by the appellant, she is also directed to file an affidavit showing compliance with the Tribunal’s present order before the next date of hearing viz. before 27^th October, 2016. A copy of the affidavit be also provided to the Zonal Office of the respondent and the learned counsel for the respondent.

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The Application is disposed off in the above terms.

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Copy of the order be provided ‘ dasti ’ to both sides.

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(Kaushal Srivastava) Member

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New Delhi, 27^th September, 2016

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‘d’

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FPA-PMLA-1077/JL/2015