IMPORTANT POINT
Under PMLA, Adjudicating Authority neither has power to decide on criminality of offence nor does it have power to impose punishment – Powers under Section 6 can be exercised by an Adjudicating Authority comprising single member.

JUDGMENT

Alok Aradhe, CJ.—This intra court appeal emanates from an order dated 13.03.2023 passed by the learned Single Judge in I.A.No.1 of 2022 in W.P.No.41133 of 2022.

2. Facts giving rise to filing of this appeal briefly stated are that the respondent Nos.1 to 29 in the writ appeal are the companies registered under the provisions of the Companies Act, 1956. On the basis of a complaint made by the Housing Development Finance Corporation Bank (hereinafter referred to as ‘the HDFC Bank’), First Information Reports (FIRs) bearing FIR No.78 of 2021, dated 22.04.2021 and F.I.R.No.86 of 2021, dated 01.05.2021 were registered against M/s.Karvy Stock Broking Limited (KSBL) and its directors and M/s.Karvy Comtrade Limited and its Directors respectively for the offence under Section 420 IPC. A provisional order of attachment dated 18.07.2022 was issued under Section 5(1) of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as ‘PMLA’) by the Deputy Director, Enforcement Directorate. Thereafter, a show cause notice dated 19.09.2022 was issued by the Union of India.

3. The validity of the aforesaid provisional order of attachment dated 18.07.2022 and show cause notice dated 19.09.2022 was assailed in a writ petition inter alia on the ground that a single member cannot pass an order of attachment, as Section 6 of PMLA contemplates the constitution of adjudicating authority by a chairperson and two members. Another ground attack is that the adjudicating authority was not a judicial member and therefore, act of passing of the provisional order of attachment which is a quasi-judicial function can only be performed by a member who is experienced in the field of law.

4. The learned Single Judge by a common order dated 13.03.2023 while deciding the interlocutory application i.e., I.A.No.1 of 2022 in W.P.No.41133 of 2022, from which the instant appeal emanates, decided other three writ petitions, i.e., I.A.No.1 of 2022 in W.P.No.44343 of 2022, W.P.No.34627 of 2022 and W.P.No.34238 of 2022 and inter alia held as under:

(1) Under the proceeding under Section 8 of the PMLA, the adjudicating authority performs quasi-judicial function as it decides the lis between two contesting parties and therefore, the quasi judicial bodies should consist of members having requisite qualification in the field of law and should be appointed instead of members having no experience in the field of law.

(2) The decision in In Re: Cognizance for Extension of Limitation, (2020) 19 SCC 10 is applicable to the proceeding initiated under the PMLA for computing period of 180 days and the adjudicating authority becomes functus officio after the lapse of 180 days if the provisional order of attachment is not affirmed. Accordingly, the impugned provisional order of attachment and show cause notice were quashed. In the aforesaid factual background, this intra court appeal has been filed.

5. The learned Additional Solicitor General of India submitted that the learned Single Judge ought to have appreciated that the vires of the provision was not under challenge and therefore, it was not possible for him to read down a statutory provision. It is contended that the learned Single Judge erred in inserting a condition in Section 6(5)(b) of the PMLA to provide that every Bench of the adjudicating authority shall invariably have a member having experience in the field of law. It is further contended that the adjudicating authority under Section 6 of the PMLA is not a judicial tribunal which performs the function which is performed by the Court and is also not a tribunal constituted either under Article 323A and 323B of the Constitution of India.

6. It is also contended that the adjudicating authority constituted under Section 6 of the PMLA discharges the function under Section 8(1) and 8(3) of the PMLA which is internal review of provisional order of attachment passed by the Deputy Director of the Enforcement Directorate. It is urged that it is an interim arrangemen