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IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Arun Dev Choudhury, J.
Umsaw Khwan and Ors. – Petitioners
Versus
Enforcement Directorate and Ors. – Respondents
WP(C)/81 of 2019
Decided On : 27-09-2022
Prevention of Corruption, 1988 - Section 13(1)(c), (c) – Indian Penal Code, 1860 - Sections 26, 120(B)/420/423 - Prevention of Money Laundering Act, 2002 - Section 5, (1) (a), (b), 2(p), (u), 3, 8, 50, 42, 26 (1) – Criminal Procedure Code, 1973 - Section 145 – Land Acquisition Act, 1894 - Section 4, 5A, 6, 17(1) - Constitution of India, 1950 - Article 226 - Land - Possession Of Land - Whether forum/Court chosen by petitioner shall be burdensome to party raising such plea - Whether subjective satisfaction arrived at while issuing impugned provisional attachment order, authority had before it, any credible materials or information or such decision was supported by supervening factor. Para 18
Finding of the Court :
While dealing with Section 8 of PMLA Act, Hon’ble Apex Court in Bijay Madanlal Choudhary (supra) held that adjudicating authority may disagree and not confirm provisional attachment, in which case attachment over property seizes - Order of adjudicating authority can also be challenged before Appellate Authority - Section 26 (1) of PMLA Act gives a right to the person aggrieved by an order of confirmation of provisional attachment to approach to Appellate Tribunal - Order of such Appellate Authority can further be challenged before High Court under Section 42 of PMLA Act - High Court shall have power to deal with any question of fact or law in such a proceeding - From aforesaid it is clear that present petitioner shall have opportunities as provided under Act and agitate same before authority under PMLA Act as discussed herein above - Accordingly, in view of forging reasons and discussion, this Court is of considered opinion that present is not a fit case wherein this Court should interfere with order of provisional attachment in exercise of its power under Article 226 of Constitution of India inasmuch as this Court has held that authority is having its power and jurisdiction to issue impugned order of attachment and that adjudicating authority is having power and duty to examine validity of order of attachment and test same including ground of satisfaction that is required under Section 5(1) (a) and (b) of PMLA Act - Accordingly, provisional attachment order is not interfered with - Petitioner shall have at liberty to avail it’s right to file reply before adjudicating authority, if so advised - While parting with record, it is made clear that Court has not decided or commented anything on validity of impugned attachment order.
Result: Petition disposed of.
JUDGMENT :
Heard Mr. S. S. Dey, learned Senior counsel assisted by Mr. D. J. Kapil, learned counsel for the petitioners. Also heard Ms. A. Gayan, learned CGC for Union of India and Enforcement Directorate. Also heard Mr. P. K. Sarma, learned counsel for the State of Meghalaya representing the respondent Nos. 5 and 6.
2. In the present writ petition, the petitioners have primarily sought for the following two reliefs :-
II. Directing the Respondent Nos. 1, 2, 3 and 4 to immediately defreeze all the bank accounts mentioned under Scheduled of Properties in the Provisional Attachment order No. 03/2018 dated 28.09.2018 and by rescinding the Provisional Attachment Order dated 28.09.2018 and the Order dated 09.11.2018 passed in OC-1046/2018.
3. The immediate facts prior to initiation of the proceeding under challenge can be summarized as follows:-
II. Pursuant to an investigation, the CID, Meghalaya filed charge sheet being charge sheet No. 2/2017 dated 01.09.2017 under Sections 120(B)/420/423 IPC read with Section 13(c) of PC Act, 1988 before the learned District and Sessions Judge, East Khasi Hills.
III. Thereafter, on a satisfaction that prima facie case of money laundering was there, the Enforcement Directorate, Guwahati Zonal Office, recorded ECIR No. 05/GWZO/2017 dated 03.08.2017 and started investigation under PML Act, 2002 (in short PMLA, 02).
IV. Thereafter, the impugned provisional attachment order was issued.
4. The immediate facts prior to lodging of CID investigation by the State of Meghalaya.
II. Subsequently around the year 1994, the petitioner No. 1 through its representative, started initiating the process of return of the Mawpali hill to the petitioner No. 1. Ultimately in a meeting held in the Office Chamber of the concerned Minister, on 05.12.1994, it was decided to return back Mawpali to the petitioner No. 1 with a request to the petitioner No. 1 to reserve the road sides of National Highway and to protect matured trees with a further decision that the same will be handed over by December, 1994.
III. Subsequently, in a preceding under Section 145 of Cr.P.C. between the Divisional Soil Conservation Officer and the Headman of the Village (the petitioner No.1), the Executive Magistrate while closing the C.R.( Misc. 14/1996) held that the village is having the possession of the land from 23.12.1994 and that the first party Divisional Soil Conservation Officer could not produce any document to support its right of continuing possession. The learned Court below held that the land was handed over to Jum Control Department (Soil Conservation Department) of the erstwhile of Government of Assam for affore-station in 1953 with an agreement that the land will be returned back to the village authority on expiry of 30 years and when the State of Meghalaya was created in the year 1972, the land was still under possession of the Department, as 30 years was not completed and it was also
Section 5 of the PMLA Act, empowers attachment and provisional attachment to protect the proceeds of crime being frustrated from confiscation by way of concealment, transfer etc.
The main legal principle established is that properties to be proceeded against under PMLA must be connected to the criminal activity, and ex facie illegal acts can be interfered with under Article 2....
Provisional Attachment Orders must have justified legal grounding, requiring explicit evidence of connections to alleged criminal activity, and prior judicial conclusions limit enforcement authority ....
Properties acquired before the commission of an alleged offence cannot be attached under the Prevention of Money Laundering Act, and due process must be followed in such proceedings.
The court emphasizes that when statutory remedies are available, the extraordinary jurisdiction under Article 226 of the Constitution should not be exercised unless there are exceptional reasons to d....
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