Disposed

FPA-PMLA-2685/PTN/2018 of Awadhesh Prasad Singh v/s The Deputy Director Directorate of Enforcement, Patna & Ors.

ATFP20 Mar 2019FPA-PMLA-2685/PTN/2018

Case brief

AI extract

What is this about?

Appellants challenged a notice to take possession of properties already attached under the Bihar Special Court Act. This Tribunal directed status quo and allowed three weeks for the respondent to file a reply, noting that possession cannot be taken without custodian permission.

What did the court decide?

Status quo maintained in respect of attached properties; respondent given three weeks to file reply.

FPA-PMLA-2685/PTN/2018 of Awadhesh Prasad Singh 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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1. MP-PMLA-5896/PTN/2019 (Stay) FPA-PMLA-2685/PTN/2018
Awadhesh Prasad Singh	…	Appellant
2. MP-PMLA-5897/PTN/2019 (Stay) FPA-PMLA-2686/PTN/2018
Bina Sinha	…	Appellant
3. MP-PMLA-5898/PTN/2019 (Stay) FPA-PMLA-2687/PTN/2018
Sourav Kumar	…	Appellant
4. MP-PMLA-5899/PTN/2019 (Stay) FPA-PMLA-2689/PTN/2018
Sundeep Kumar	…	Appellant
5. MP-PMLA-5900/PTN/2019 (Stay) FPA-PMLA-2689/PTN/2018
Shyam Bihari	…	Appellant
Versus
The Deputy Director
Directorate of Enforcement, Patna & Ors.	…	Respondents

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Advocates/Authorized Representatives who appeared

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For the Appellants	: Mr. Arjun Singh Bhati, Advocate
	Mr. Manish Jha, Advocate
For the Respondent no.1 (ED)	: Mr. S. K. Sharma, Advocate
CORAM JUSTICE MANMOHAN SINGH	: CHAIRMAN

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ORDER

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20.03.2019

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FPA-PMLA-2685-2687/PTN/2018, FPA-PMLA-2689/PTN/2018 & FPA-PMLA-2689/PTN/2018

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Before the confirmation of impugned order, the appellants have

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filed the Writ Petition W.P.(C) 7328/2018 dated 18^th July, 2018 and Writ

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FPA-PMLA-2685-2687/PTN/2018, FPA-PMLA-2689/PTN/2018 & FPA-PMLA-2689/PTN/2018

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Page 1 of 4

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Petition W.P.(C) 7740/2018 dated 27^th July, 2018 before the Hon’ble High Court of Delhi at New Delhi. The directions were issued not to take to possession till 05^th February, 2019. In the said order it was clearly recorded that the principal challenge of the appellants in the present petitions relates to the applicability of PMLA in respect of the offences, which were not a part of the Schedule at the time when they are alleged to have been committed. In addition, the petitioner has also pointed out that attachment proceedings have also commenced under the Bihar Special Courts Act, 2010 and, therefore, there are now parallel proceedings with regard to attachment of the petitioners’ properties. The said Writ Petitions were disposed of by order dated 05^th February, 2019 on the issue of territorial jurisdiction. The interim order passed by the Hon’ble High Court was extended for four weeks, in the meanwhile the impugned order was passed by the Adjudicating Authority.

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Counsel for the appellants states that within the extended time the appellants have challenged the said proceedings before the Hon’ble High Court of Patna who is the competent court to hear the same i.e. on 26^th February, 2019 and 12^th March, 2019. The said petitions are yet to be listed.

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In the meanwhile, the respondent has issued the notice dated 14^th March, 2019 under Section 8(4) of the Prevention of Money Laundering Act, 2002 for the purpose of taking the possession of the attached properties. This aspect has also been dealt by this Tribunal in some similar case i.e. in appeal no. FPA-PMLA-1968/PTN/2017 in the matter of “Y. K. Jaiswal & Others Versus The Deputy Director, Directorate of Enforcement, Patna” . The principal challenge was discussed in that case also the same is reproduced here below:

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“FPA-PMLA-1968/PTN/2017

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The appellant has filed the appeal under section 26 of Prevention of Money Laundering Act, 2002 against the order dated 1^st September, 2017. Issue notice to the respondent.

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FPA-PMLA-2685-2687/PTN/2018,

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Page 2 of 4

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FPA-PMLA-2689/PTN/2018 & FPA-PMLA-2689/PTN/2018

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Ms. Shilpi Satyapriya Satyam, learned counsel for the respondent accepts the notice and seeks time to file the reply. Let the reply be filed within six weeks with an advance copy to the counsel for the appellant who may file the rejoinder within four weeks thereafter.

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List this appeal on 9^th March, 2018.

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MP-PMLA-3865/PTN/2017 (Stay)

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Alongwith the appeal the appellant has filed the interim application. The learned counsel for the appellant is pressing for interim order in view of the notice under section 8(4) has been received. The learned counsel for the appellant submits that the immovable properties details which are mentioned in page no. 49, 50 & 51 in the paper book have already been attached under the Bihar Special Court Act, 2009. The specific statement in this regard has been made in para 17 of the grounds of the appeal.

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He has also relied upon the rule of 7 of Prevention of Money Laundering Act (Taking Possession of attached or Frozen Properties Confirmed by the Adjudicating Authority) Rules, 2013 which reads as under:- “(7) Confirmed attached property in the custody of court – (1) Where the confirmed attached property is in the custody of any court, the authorized officer shall make an application to such court by providing a copy of the provisional attachment order issued under sub-section (1) of section 5 and the order under sub-section (3) of section 8 passed by the Adjudicating Authority.”

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In view of the above said provision the status quo till the next date shall be maintained by both the parties. The appellants shall not sell, dispose of or create any third party interest in the said properties which are stated to have already been attached under the (Bihar Special Court Act). The respondent, if so desire, may move the Special Court in accordance with aforesaid Rule 7 of the (Taking Possession of attached or Frozen Properties Confirmed by the Adjudicating Authority) Rules, 2013, however actual possession shall not taken without the orders of this tribunal.

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List this application on 9^th March, 2018. Copy of the order be given „dasti‟ to both the parties. ”

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Counsel for the appellants states that as a subject matter of notice under Section 8(4) of the PMLA, 2002 all the properties have already been attached under Bihar Special Court Act, 2010.

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Counsel for the appellants states that no doubt the attachment has already been conducted by the Special Vigilance Unit under that Act. As far as recovery of money is concerned, the same is lying with the prosecuting agency and the applicants are not inclined to press the said amount before the Hon’ble Special Court at this stage. It is also settled

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FPA-PMLA-2685-2687/PTN/2018,

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Page 3 of 4

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FPA-PMLA-2689/PTN/2018 & FPA-PMLA-2689/PTN/2018

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by the Hon’ble Supreme Court that if immovable properties is in custody of any court who is custodian of the same, the possession of the same cannot be taken by any other authority without permission. However, the same can also be attached by other court. There, if the respondent wishes to initiate the proceedings under Section 8(4) the permission at the instance has to be obtained from custodian, thereafter, the request to take the possession shall be considered by this Tribunal.

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The prayer is vehemently opposed by the learned counsel for the respondent. Learned counsel for the appellants states that the appellants have no intention to dispose of the said properties in any manner directly or indirectly. The statement given on behalf of his client is accepted. All the appellants shall also filed undertaking by way of Affidavit by the next date. It is also the admitted position that the amount recovered at the time of raid is lying with the Special Vigilance Unit, Patna.

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Under these facts and circumstances, the Status quo shall be maintained by both the parties in respect of the attached properties on the basis of which the notice dated 14^th March, 2019 under Section 8(4) of the PML Act, 2002 was issued. In the meanwhile, the respondent is directed three weeks time to file the reply to the appeal.

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List on 13^th May, 2019.

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Copy of the order be given „dasti‟ to both the parties.

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(Justice Manmohan Singh) Chairman

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New Delhi,

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20^th March, 2019

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‘AS’