The impugned order was passed without proper appreciation of the provisions of PMLA, 2002 and PMLA Rule, 2016, and was set aside.

ORDER

Prem Narayan Singh, J. - The petitioner has preferred this revision being crestfallen by the order dated 13.06.2023 passed by Special Judge (PMLA), Indore in S.C./1924/2018, whereby the learned Special Court allowed the applications of applicants' for releasing of property in lieu of fixed deposit.

2. Succinctly, the facts of the case are that the Adjudicating Officer of Enforcement Department has attached the property of applicants amounting to the value of Rs.8,93,50,085/- which is owned by the applicants. The applicant Dr. Manjushree Bhandari has filed an appeal against the order of Adjudicating Officer in Appellate Tribunal. In this regard, a Writ Petition No. 17581/2020 was also filed before the Division Bench of this Court. This writ petition was disposed of as withdrawn with liberty to pursue such remedies as available in law. Under these circumstances, the applicants had filed their applications for returning the properties mentioned in their applications in lieu of fixed deposit.

3. Learned Special Court (PMLA), Indore after considering the contents of applications and analyzing the provisions of Prevention of Money Laundering Act, 2002 (hereinafter referred to as 'PMLA, 2002') ordained for releasing the properties in lieu of fixed deposit of Rs.7.02 crores. Being aggrieved by this impugned order, the present petitioner has been filed by the learned counsel for the Directorate of Enforcement Department.

4. In brief, the contentions of petition and arguments of counsels for the petitioner are that the case was registered vide ECIR/INSZO/2/2014 by the Directorate of Enforcement for the offence committed under Sections 120-B, 419, 420, 467 and 471 of IPC which are being scheduled offences under the PMLA, 2002. It is alleged that Investigation confirms that Dr. Vinod Bhandari invested the illegal money earned through malpractices in PMT-2012 & Pre PG Exam-2012, in various immovable properties, which were acquired in his name and in the name of his wife, Dr. Manjushree Bhandari. Dr. Vinod Bhandari utilized these 'proceeds of crime' for acquiring the properties amounting to Rs.8,93,50,085/- which were attached vide Provisional Attachment Order No. 04/2015-16, dated 31.03.2016 and subsequently original complaint No. 590/2016 was filed before the learned Adjudicating Authority, PMLA. The learned Adjudicating Authority, PMLA, New Delhi vide its well-reasoned order dated 19.08.2016 confirmed the said Provisional Attachment Order and as per order, the attachment shall continue during the pendency of proceedings relating to offence of PMLA, 2002. The learned Special Court ignored the provisions of PMLA, 2002 in order to release the properties in lieu of fixed deposit.

5. The provisions of Code of Criminal Procedure, 1973 are not applicable to this case. In this regard, Sections 65 and 71 of the PMLA, 2002 are applied. Since, the provisions of attachment and confiscation or contained in the act, no order can be passed by the Special Court, in this regard. Section 71 clearly predicates that the provision of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. It is demurred that in view of Section 5 of PMLA, 2002, the substitute application at the first instance required to be filed before the authorized office. Thus, the Special Court was not the appropriate forum at this stage. As such learned Special Court has passed the order in violation of the provisions of Section 8 of PMLA, 2002 read with Section 5(5) of the Prevention of Money Laundering (Taking Possession of Attached or frozen properties confirmed by the adjudicating authority), Rules, 2013 where the immovable property confirmed by the Adjudicating Authority is in the form of a land, building, house, flat etc. and is under joint ownership. Hence, the order of Special Court is not sustainable in the eyes of law and facts and thus, the same is liable to be set aside.

6. Learned counsel appearing o