Full Text
HIGH COURT OF DELHI
Date of Decision: 22nd August, 2024
DEPUTY DIRECTOR (THROUGH SHRI YOGESHWAR SHARMA, DY DIRECTOR) .....Appellant
Through: Mr. Abhishek Sharma, Advocate.
Through: Mr. Amit Sibal, Sr. Advocate
Ms. Archita Mehlawat, Advocates (M:
9811439334).
Mr. Arun Bhardwaj, Sr. Advocate
ED.
Prathiba M. Singh, J. (Oral)
JUDGMENT
1. This hearing has been done through hybrid mode.
2. The present appeal has been filed on behalf of the Appellant-The Deputy Director, Directorate of Enforcement, New Delhi under Section 42 of The Prevention of Money Laundering Act, 2002 (hereinafter, the ‘PMLA Act’) challenging the impugned order dated 17th January, 2020 passed by the PMLA Appellate Tribunal.
3. Vide order dated 17th January, 2020, the Appellate Tribunal had 11:44 directed the Appellant to restore the possession of certain properties to the Respondent-M/S KRBL Ltd. A provisional attachment order 3rd July, 2019 was confirmed vide order dated 12th December 2019, under Section 5 of the PMLA Act. This order was impugned before the PMLA Appellate Tribunal which passed the impugned ad-interim order dated 17th January, 2020.
4. A brief background of the present case is that an Enforcement Case Information Report (hereinafter, ‘ECIR’) was registered against the Respondent and subsequently investigation was undertaken under the PMLA Act against M/s KRBL Limited. Thereafter, a provisional attachment order under Section 5 of the PMLA Act was passed on 3rd July, 2019. By the said provisional attachment order, the properties mentioned in paragraph 5.[3] of the order dated 3rd July, 2019 equivalent to the value thereof, of the proceeds of crime, were attached. The details of the properties are as under:- “i) Property bearing Land at HB No. 66 Khasra No. 922 (1-3-0), 923 (1-8-5), 934(0-8-0), 975(1-10-0), total area measuring 4 Bigha, 9 Biswa, 5 Biswansi at Village Bhasaur, Tehsil Dhuri, District Sangrur, Punjab. ii) Land at Khasra No. 454/642, 642/887, Khasra No. 1035/(3-5), 1036(3-3), 1037(1-9), 1038(1-14), 1039(3-15), 1040 (2-13), 1041(4-17), 1042(3-2), 1043(1-7), 1045(3-15), 1049(3-6), 1044(2-10), 1033(5- 1), 1034(6-5) total area measuring 46 Bigha 2 Biswa at Village Bhasaur, Tehsil Dhur, District Sangrur, Punjab. iii) Property bearing Land at Khata NO. 426/592,593, 303/41 0 Khasra No. 1062(2-9), 2931/1067(0-10), 2932/1067(2-5), 1068(1-3), 1073(2-
1) total measuring 8 Bigha 8 Biswa at Village Bhasaur, Tehsil Dhuri, District Sangrur, Punjab. 11:44 iv) Property bearing Land at Khata No. 48/66, Khasra No. 19(7-10), 1028-29/18(5-5), 1062-63/13(0- 10), 1066-67/14(2-2), 1068-69/15(3-5), 1072/16(0-13), 1074/17 (1-0), Total measuring 20 Bigha and 5 Biswa, Land measuring Khata No. 47/65, 49/67, 50/68, 65/84, Khasra No. 11/2/0(0-10), 1060-61/12/2/1(12-10), 1064/13/2(0-19), 20/3(2-8), 1065/14(6-9), 1068/15(5- 15), 1071/16(3-6), 1073/17(1-8) total measuring 21 Bigha 19 Biswa, Khata No. 50/68, 47/65, Khasra NO. 20/2 Min (2-0-7), 11/2 Min (1-9-11) total admeasuring 3 Bigha, 9 biswa 18 Biswansi, total area of all measuring 45 bigha 13 Biswa 18 Biswansi at Village Bhasaur, Tehsil Dhuri, district Sangrur, Punjab. v) Property bearing Land Measuring Khata NO. 331/451 & 454, Khasra No. 1054(4-15), 1055(1-5), 1056(6-9), 1061(2-14), 2163(0-6), 2160(0-8), 2152/1(0-
4) total area measuring 16 Bigha, 1 Biswa out of this area purchased is 243/321 part i.e. total area measuring
12 Bigha 3 Biswa at Village Bhasaur Tehsil Dhuri District Sangrur, Punjab. vi) Property bearing Land measuring Khata NO. 645/890, Khasra No. 738 Min (0-5), 3327/739 Min (0- 4), total measuring 9 Biswa, Khata No. 646/891, Khasra No. 738 Min(6-1), 760(6-5), 761(6-5), 3328/739(8-12), 3337/762(5-10), 3339/773(5-10), total measuring 38 Bigha 3 Biswa, total of all measuring 38 Bigha 12 Biswa at Village Bhasaur, Tehsl Dhuri, District Sangrur, Punjab. vii) Property bearing Land At Khata No. 645/890, Khasra No. 3327/739/Min (0-4) measuring 4 Biswa at Village Bhasaur, Tehsi Dhuri, District Sangrur, Punjab.”
5. The order of attachment dated 3rd July, 2019 was confirmed by the Adjudicating Authority (PMLA) vide order dated 12th December, 2019. The 11:44 relevant portion of the order dated 12th December, 2019 is extracted hereinunder:
6. The order dated 12th December, 2019 was challenged by Respondent herein and its promoters before the Appellate Tribunal, PMLA, which on 17th January, 2020 observed that there is a prima facie case in favour of the 11:44 Respondent company herein for restoration of possession of its properties. Accordingly, it was held that properties of the Respondent company herein, listed in notice dated 18th December, 2019 and 19th December, 2019 be restored. Relevant portion of the said order of the Tribunal reads:
11:44 appellants to secure the alleged proceeds of crime attributed to the appellants. Accordingly ordered.”
7. The Department/Appellant impugns the order dated 17th January, 2020 before this Court.
8. During the pendency of the appeal, an application was preferred by the Respondents being CM APPL. 25639/2020. The prayer in the said application was that despite the order of the Tribunal, possession was not given to the Respondents. In the said application, the ld. Predecessor Bench vide order dated 23rd October, 2020, had directed as under:-
11:44 warehouses and for removal thereof. The new goods are to be stored in the warehouses for the sale thereof. The deposit of the aforesaid amount of Rs.11.13 crores will not prejudice the rights and contentions of the parties to this MISC. APPEAL(PMLA) 2/2020. Neither the deposit of the amount, nor the acceptance of this amount shall be treated as admission of any facts by the parties to this appeal and will not prejudice their rights and contentions to this appeal.
5. The aforesaid amount shall be deposited within two weeks from today i.e. on or before 05.11.2020.
6. This applicant shall be permitted to use the warehouses which are mentioned at Sr.No.4, 6 and 7 of paragraph 1 of this application with effect from 26.10.2020 for storing and removing the new goods and the amount of Rs.11.13 Crores will be deposited on or before 05.11.2020.
7. The aforesaid warehouses shall not be transferred by this applicant, in any manner whatsoever, to anybody and no third party interest shall be created in any manner.”
9. Thus, by virtue of the aforementioned order, a sum of Rs.11.13 crores stands deposited by the Respondent with the Enforcement Directorate, in terms of the said order, without prejudice.
10. The matter has been taken up for hearing today. On behalf of the Appellant/Department, Mr. Sharma, ld. Counsel submits that the appeal itself is coming up for hearing on 14th October, 2024 before the Appellate Tribunal and all the issues relating to even possession can be decided by the Appellate Tribunal itself.
11. It is submitted by ld. Sr. Counsel Mr. Amit Sibal along with Mr. Bakhru, ld. Counsel that the appeal itself is not maintainable as the impugned order passed by the Tribunal is perfectly valid in law. Reliance is placed upon 11:44 the observations of the Supreme Court in Vijay Madanlal Choudhary and Others vs. Union of India and Others, [(2022) SCC OnLine SC 929] which clearly provides in paragraphs 73 and 74 that the stipulation in sub-section (4) of Section 8 of the PMLA Act, which provides for taking possession of the property, ought to be used in exceptional situations and not as a rule. The Supreme Court has observed that merely because a provisional order of attachment under Section 5(1) of the PMLA Act has been confirmed, it does not follow that the property stands confiscated. The relevant portion of the judgment is extracted hereinunder for a ready reference:
11:44 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 in the peculiar facts of a particular case so as to invoke the option available under sub-section (4) of section 8.
74. Indisputably, statutory Rules have been framed by the Central Government in exercise of powers under section 73 of the 2002 Act regarding the manner of taking possession of attached or frozen properties confirmed by the adjudicating authority in 2013, and also regarding restoration of confiscated property in
2019. Suffice it to observe that direction under section 8(4) for taking possession of the property in question before a formal order of confiscation is passed merely on the basis of confirmation of provisional attachment order, should be an exception and not a rule. That issue will have to be considered on case-to-case basis. Upon such harmonious construction of the relevant provisions, it is not possible to countenance challenge to the validity of sub-section (4) of section 8 of the 2002 Act.
12. It is further submitted on behalf of the Respondents that interest of the Appellant/Department has already been protected as the attachment of the properties is continuing and there was no compelling hurry for taking possession, that too in violation of the order dated 24th December, 2019 passed by the predecessor Bench of this Court in Writ Petition (Civil) 13793/2019 titled KRBL Limited vs. Directorate of Enforcement Through: 11:44 its Standing Counsel. It is further submitted that the Appellant/Department is in clear violation of the aforementioned order which reads as under:- “As only a limited relief is sought, the present petition is being disposed of at this stage itself without calling upon formal reply from the respondent. The learned senior counsel for the petitioner submits that an order under Section 8(3) of the Prevention of Money Laundering Act, 2002 has been passed by the Adjudicating Authority on 12.12.2019. He submits that a copy thereof was received by the petitioner on 17.12.2019. Further, placing reliance on Section 8(4) of the Act read with Rule 5(2) of the Prevention of Money- Laundering (Taking Possession of Attached or Frozen Properties Confirmed by the Adjudicating Authority) Rules, 2013, he submits that the Authorized officer has to issue a notice of eviction of 10 days before taking over the possession. He submits that while for some properties such notice has been issued, for others, possession has been taken over from the petitioner without issuing such notice. The learned counsel for the respondent submits that the possession of only the properties which were in form of land are being taken over by the Authorized Officer. The learned senior counsel for the petitioner, however, submits that all properties in question are occupied by the petitioner as owner and therefore, possession thereof could not have been taken over by the Authorized Officer without issuance of the mandatory notice. He further submits that the petitioner is in the process of challenging the order passed by the Adjudicating Authority in form of an appeal. In view of the submissions made, subject to the petitioner maintaining status quo with respect to the occupation of the properties, the respondents are restrained from taking over the possession of the properties as mentioned in the order dated 12.12.2019 without issuing the notice as required in Rule 5(2) of 11:44 the Rules. The petition is disposed of with the above directions. Dasti under the signature of the Court Master.”
13. On behalf of the Respondent, it is prayed that the amount of Rs. 11.13 crores deserves to be released in favour of the Respondent as the same is subject to outcome of this appeal, which is now been sent back to the ld. Appellate Tribunal.
14. The Court has considered the matter. The order in appeal dated 24th December, 2019 clearly protects the Appellant, insofar as attachment is concerned. No third-party rights and/or interests can be created in respect of all seven properties by the Respondent.
15. Under such circumstances, the direction for restoring the possession of the properties cannot be faulted with on merits. Moreover, even the order dated 24th December, 2019 directed that the Appellant/Department was restrained from taking the possession of the properties. The stand of the Appellant is that notices were issued on 18th December, 2019 and 19th December, 2019 and the time period as prescribed in the PMLA Rules were adhered to. These issues would have to be now resolved in the Appellate Tribunal.
16. The possession of all the seven properties shall now remain with the Respondent subject to the order of attachment in terms of paragraph 19 of the impugned order dated 17th January, 2020.
17. In addition, a sum of Rs. 11.13 crores which is lying deposited with the Appellant/department shall be deposited in a separate interest bearing fixed deposit, details of which shall be filed before the ld. Appellate Tribunal. The Appellate Tribunal shall decide the application for interim relief of the 11:44 Respondents within a period of two weeks from 14th October, 2024. The Tribunal shall also take a view on whether the amount ought to be refunded to the Respondents or not.
18. Needless to add, nothing said in the ad-interim order dated 17th January, 2020 (impugned herein) and the orders passed in this appeal would bind the final adjudication of either the interim application or the appeal before the ld. Appellate Tribunal.
19. The stand of the Respondent is that the notices were not issued for taking possession of the properties and the same would be in violation of the order passed by the ld. High Court. If so, the said position shall be brought to the notice to the Appellate Tribunal.
20. The appeal is disposed of with all pending applications, if any.
PRATHIBA M. SINGH JUDGE AMIT SHARMA JUDGE AUGUST 22, 2024/MR/RKS/Pc 11:44