IMPORTANT POINTS
(1) Attachment and confiscation of property – Special Court cannot go into issues which higher forums have been entrusted with.
(2) Section 8(7) and Section 8(8) of PMLA are stand-alone provisions – Section 8(7) of PMLA gets attracted only in case of a contingency and application under said provision can be decided by Special Court only once confirmation order attains finality.

JUDGMENT :

M.M. SUNDRESH, J.

1. Leave granted.

2. An interesting question of law has arisen in this appeal, on the interpretation of Section 8 of the Prevention of Money-Laundering Act, 2002 (hereinafter referred to as the “PMLA”).

3. We have heard the learned counsel for the appellant and the learned counsel for the respondent - Union of India. We have also perused the written submissions and the documents filed by both sides, in respect of their contentions.

BRIEF FACTS

4. We are only recording brief facts, as the issues relating thereto are not required to be examined for deciding the present appeal.

5. A partnership firm, by the name M/s. Nav Nirman Builders (hereinafter referred to as the “firm”) was constituted on 01.04.1993 with Dharamveer Bhadoria (since deceased) as its Managing Partner. After more than a decade from its constitution, the appellant company was incorporated with the earlier partners of the firm, including Dharamveer Bhadoria who was made its Managing Director. The firm secured a work order from the Executive Engineer (RCD), Chaibasa, on 23.02.2007. Upon completion of the work, a payment of approximately Rs. 79,11,559/- was made to the firm.

6. Two years thereafter, a First Information Report (FIR) was registered for the offences punishable under Sections 120B, 420, 467, 468, and 471 of the Indian Penal Code, 1860 along with Sections 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the “predicate offence”) against the Executive Engineer, the firm and unknown others.

7. The sum and substance of the allegations in the FIR dated 22.10.2009 and the consequential charge sheet dated 03.12.2010 is that the firm, despite being required to procure bitumen from oil companies of the Government of India, under the terms and conditions of the work order, did not do so, and the accused - public servants fraudulently cleared the bills of the firm and facilitated their payment. To cover up the said act, the firm submitted 37 invoices, claiming to have procured bitumen from Indian Oil Corporation Limited Depot, Tatanagar, of which 6 were forged and fabricated, and the remaining pertained to some other work.

8. Based upon the materials revealed during the investigation of the predicate offence, proceedings were initiated under the PMLA, on 13.03.2012, against the firm and Dharamveer Bhadoria. It is pertinent to note that the appellant was not arrayed as an accused in these proceedings. Perhaps, taking a wind of the proceedings initiated under the PMLA, the appellant company underwent a reconstitution on 08.06.2015.

9. A Provisional Attachment Order (PAO) was passed by the respondent, under Section 5(1) of the PMLA, on 17.12.2017, attaching two pieces of land purchased by the appellant in the years 2012 and 2014, in lieu of the amount allegedly received fraudulently by the firm. Thereafter, the respondent filed Original Complaint No. 760/2017 before the Adjudicating Authority, seeking confirmation of the PAO. Accordingly, proceedings were initiated under Section 8(1) of the PMLA.

10. An impleadment application was filed by the appellant in the aforesaid proceedings, since properties purchased by it were provisionally attached. The said application was allowed, arraying the appellant as Defendant No. 8. After hearing all the parties, including the appellant, the Adjudicating Authority passed a confirmation order under Section 8(3) of the PMLA. Aggrieved, an appeal was filed by the appellant under Section 26 of the PMLA before the Appellate Tribunal, in which an order of status quo dated 12.07.2018 was passed.

11. In the meantime, a Prosecution Complaint was filed by the respondent under Section 45 of the PMLA, on 31.03.2018, against Dharamveer Bhadoria and the firm. The sum and substance of the said complaint is that the accused persons have utilised the proceeds of crime in the purchase of immovable properties in the name of the appellant. It is precisely on this ground that the Adjudica