Allowed

FPA-PMLA-2313/DLI/2018 of Shri Sanjay Kumar v/s The Deputy Director Directorate of Enforcement, New Delhi

ATFP2 May 2019FPA-PMLA-2313/DLI/2018

Case brief

AI extract

What is this about?

Appeal against Adjudicating Authority order retaining seized electronic evidences. Tribunal held retention order lapsed due to statutory amendment and lack of Prosecution Complaint. Appeal allowed and order set aside without examining other grounds.

What did the court decide?

The retention order is held to have lapsed; impugned order of retention is set aside.

FPA-PMLA-2313/DLI/2018 of Shri Sanjay Kumar v/s The Deputy… — Money Laundering | ATFP (2019)

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APPELLATE TRIBUNAL, PREVENTION OF MONEY LAUNDERING ACT AT NEW DELHI

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FPA-PMLA-2313/DLI/2018

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Shri Sanjay Kumar … Appellant

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Versus

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The Deputy Director Directorate of Enforcement, New Delhi

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… Respondent

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Advocates/Authorized Representatives who appeared

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For the Appellant : Mr. Yogender Handoo, Advocate For the Respondent : Mrs. Shilpi Satyapriya Satyam, Advocate CORAM JUSTICE MANMOHAN SINGH : CHAIRMAN SHRI G. C. MISHRA : MEMBER

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REASONS TO THE JUDGMENT & ORDER DATED 29.03.2019

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FPA-PMLA-2313/DLI/2018

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The present appeal has been filed by the appellant under Section 26 of the Prevention of Money Laundering Act, 2002 against the order dated 04^th April, 2018 passed by the Adjudicating Authority in OA No. 140/2017.

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The learned Adjudicating Authority allowed the OA, confirming the prayer of the Enforcement Directorate for retention of the following items/documents;

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a) Details of seized items from the residential premises of the appellant at A-1/203, Anmol Towers, Near Naranpur Telephone Exchange Naranpura, Ahmedabad as under;-

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FPA-PMLA-2313/DLI/2018

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i. One Hand Disk (silver colour) of make by “genini” Us 82.0 ATA (SI. no. not legible).

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ii. One silver colour hard disk of make “genini” USB 2 HDD external case (SI. no. not legible).

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iii. One black colour hard disk of make “transcend” storejet 25 mobile 320 GB.

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iv. One Samsung mobile J2, IMEI no. 359268/07/740974/6 along with SIM (mobile no. 9426396459).

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b) Details of seized items recovered from the residential premises of Shri Sanjay Kumar (Appellant), at Flat no. 274, Sita Ram Co-op., Group Housing Society, Plot no. 102, Patpargunj, Delhi as under;-

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i. One bunch of loose sheets from Serial no. 01 to 63.

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ii. Nokia Mobile, Model: C2-01, type: RM-721, IC: 66IU-RM721, IMEI: 355940/04/255768/4.

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iii. Nokia Mobile, Model: 610, Type: RM-835, IMEI: 533663052301411.

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iv. Sony Xperia Mobile: this phone is old and broken.

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We had heard both sides and already pronounced the order in the court by allowing the appeal vide order dated 29.03.2019. Now, we are giving our reasons to the aforesaid order as under;-

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A. The facts of the case in brief:

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i. It is alleged that the appellant herein Shri Sanjay Kumar was posted in the Ahmedabad Zone of Enforcement Directorate in the year 2015 as Enforcement Officer and was doing investigation of T-3 file No. T-3/17/AMZO/2015 under the provisions of FEMA, 1999. In that case of FEMA investigation

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FPA-PMLA-2313/DLI/2018

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searches were made on 19.03.2015 by Shri Sanjay Kumar as officer, which led to seizure of documents and other electronic evidences which was shared with Commissioner of Police, Vadodara, this led to registration of FIR No. 11/222/15U u/s 455 of Gambling Act dated 21.03.2015 at Police Station, Kishanwadi, Vadodara, Gujarat.

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ii. That another FIR No. 1/85/15 dated 25.03.2015 was registered u/s. 418, 419, 420, 465, 467, 468/471/120B of IPC and u/s 65, 66 and 66(c) of IT Act at the same Police Station i.e. Kishanwadi, Vadodara therein the allegations were made that the accused persons procured SIM cards on the basis of fake and forged documents.

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iii. On the basis of the FIR No. 1/85/15 dated 25.03.2015, since the offences alleged to have been committed, were the Scheduled offences under PMLA, 2002 and ECIR No. 3/AMZO/2015 dated 26.03.2015 was registered by the ED, Ahmedabad Zone and the investigation of the same was entrusted to the present appellant, who after investigation put up Provisional Attachment Order and filed Prosecution Complaints.

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iv. In the present case on 22.09.2015 the CBI registered a Criminal case vide RC3A/2015/AC-III under Section 120-B of IPC read with Section 7, 12, 13(2) and 13(1)(d) of PC Act, 1988 against J P Singh, the then Joint Director, ED wherein it was alleged that Mr. Singh with the assistance of the present appellant and others indulged in corrupt practices in investigation of ECIR No. 3/AMZO/2015. It is alleged that they have taken huge amount of bribes as quid-pro-quo for acts of omission and commission during the investigation of the above case.

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FPA-PMLA-2313/DLI/2018

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v. The appellant was arrested by CBI on 17.02.2017 and filed charge sheet against him and others. At present the appellant is on bail from the CBI Court Ahmedabad and facing trials.

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vi. On the basis of the registration of the above case by CBI, a PMLA case vide ECIR/02/DLZO-II/2017 dated 17.03.2017 was recorded at New Delhi for enquiring and investigating the case of accepting huge amount of illegal bribe money by showing fear and coerciveness.

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vii. The Enforcement Directorate filed the OA before the Adjudicating Authority for retention of the aforesaid seized items/documents which was confirmed by the Adjudicating Authority & which is impugned before this Tribunal.

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B. The case of the appellant:-

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In short the case of the appellant, inter-alia , are that the ECIR has been registered by the Department on the basis of false case foisted against him by the CBI. The mandate of Section 17 of PML Act has not been complied. The predicate agency i.e. CBI has not recovered/discovered any illegal material/money from the appellant, copy of “reasons to believe” has not been supplied.

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The learned Adjudicating Authority confirmed the prayer of the Enforcement Directorate for retention of the items/documents seized from the appellant. The operative part of the order is reflected in Para no. 16 of the impugned order which is read as under:-

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“16. The order of retention shall:

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(a) continue during the pendency of the proceedings relating to any offence under this Act before a court or under corresponding law of any other country before competent court of criminal jurisdiction outside India as the case may be;

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FPA-PMLA-2313/DLI/2018

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(b) become final after an order of confiscation is passed under sub-section (5) or sub-section (7) of section 8 or section 58B or sub-section (2A) of section 60 by the Adjudicating Authority.”

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During the course of their respective submissions the learned counsel for the appellant has drawn our attention to the provision in Section 8(3)(a) of PMLA, 2002 as amended by Act 13 of 2018. The said amended provision is brought into effect from 19.04.2018. The provision of Section 8(3)(a) of PMLA, 2002, after amendment, is read as under:-

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a) continue during [investigation for a period not exceeding ninety days or] the pendency of the proceedings relating to any [offence under this Act before a court or under the corresponding law of any other country, before the competent court of criminal jurisdiction outside India, as the case may be.

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On the basis of above, other legal & factual grounds the learned counsel for the appellant prayed this Tribunal to allow the appeal as the confirmation order of retention passed by the Adjudicating Authority does not survive.

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On the other hand the learned counsel for the respondent admitted that no Prosecution Complaint has been filed against the present appellant.

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The submissions made by the parties are considered. The relevant provisions of law are also considered along with the factual and legal issues raised by the parties. The retention order was passed on 04.04.2018 and six days short of one year has been passed as on 29.03.2019 but no Prosecution Compliant is pending against the appellant.

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FPA-PMLA-2313/DLI/2018

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Since, we have decided the appeal, in the light of the amendment brought in the statute as mentioned above, hence, we have not gone into other legal issues raised herein. Under these circumstances, retention is lapsed. The appeal is allowed. The impugned order is set aside.

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No costs.

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(Justice Manmohan Singh) Chairman

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(G. C. Mishra) Member

New Delhi,

02^nd May, 2019

„AS‟

FPA-PMLA-2313/DLI/2018

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FPA-PMLA-2313/DLI/2018 of Shri Sanjay Kumar v/s The Deputy Director Directorate of Enforcement, New Delhi

Case brief

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FPA-PMLA-2313/DLI/2018 of Shri Sanjay Kumar v/s The Deputy Director Directorate of Enforcement, New Delhi

Case brief

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