APPELLATE TRIBUNAL UNDER SAFEMA AT NEW DELHI MP-PMLA-10413/KOL/2022 (Misc.)

MP-PMLA-9101/KOL/2021 (Stay)

FPA-PMLA-4358/KOL/2021 Ayush Kejriwal … Appellant Versus The Deputy Director, Directorate of Enforcement, Kolkata … Respondent Advocates/Authorized Representatives who appeared For the Appellant : Shri Ankit Agarwal, Advocate For the Respondent : Shri Arjun Sawhney Ms. Mansi Srivastava, Advocates CORAM JUSTICE MUNISHWAR NATH BHANDARI : CHAIRMAN SHRI BALESH KUMAR : MEMBER

FINAL ORDER

01.05.2024 FPA-PMLA-4358/KOL/2021 The appeal has been preferred under Section 26 of the Prevention of Money Laundering Act, 2002 (in short ‘the Act of 2002‟) to challenge the order dated 09.09.2021 passed by the Adjudicating Authority confirming the order under Section 17(1) of the Act of 2002.

2. The learned counsel for the appellant submits that a search was conducted after recording ECIR. The documents belonging to the appellant were seized invoking Section 17(1) of the Act of 2002. It is without realising that no FIR or ECIR has been lodged against the appellant and otherwise he was not in possession of the ‘proceeds of crime‟. The appellant was, however, served with a show cause notice and aggrieved by it, a writ petition was preferred before Calcutta High Court. However, a reply to the show cause notice was submitted before the Adjudicating Authority. The order of seizure under Section 17(1) of the Act of 2002 was, however, confirmed by the Adjudicating Authority thus aggrieved by the order, this appeal has been preferred.

3. The learned counsel for the appellant submitted that the respondent has seized four documents from Rajkamal Apartment, Palm Avenue, Kolkata. They are basically the documents related to a Flat which came througha Gift to the appellant. It was given by none else but by his grandfather. The Flat was purchased by the grandfather in the year 1988 and thus, it could not have any nexus to the crime for which FIR was registered on 28.03.2017 by CBI, Kolkata. It was for the offence under Section 120-B read with Section 420 IPC and Section 13(2) read with section 13(1)(d) of Prevention of Corruption Act, 1988. The ECIR was recorded on 03.01.2020 i.e., much subsequent to the acquisition of property by the grandfather. Thus, it was prayed by the appellant that on the face of record, the impugned order deserves to be set aside when the documents pertaining to the property are not the‘proceeds of crime‟ and otherwise appellant is not an accused in the FIR or ECIR.

4. It is also submitted that even no Prosecution Complaint (PC) has been filed against the appellant though a period of 365 days has already expired after the order of the Adjudicating Authority. Thus, on the aforesaid ground also, the impugned order deserves to be set aside.

5. The learned counsel for the appellant cited several judgments of this Tribunal and theHigh Court to support his argument and the same would be considered by us while dealing with each issue raised by the appellant.

Arguments of opposite side

6. The learned counsel for the respondent has contested the appeal. It is submitted that serious allegations exist against the accused in regard to the bank LC and the money laundering therein for a sum of Rs.164.99 crores. The ‘proceeds of crime‟ came to the accused but it was siphoned off and thereby the documents of the property in question were seized for the value equivalent to the ‘proceeds of crime‟. In the light of the aforesaid, the argument of the appellant that the document relating to the property is not ‘proceeds of crime‟, would not be tenable. Reference to the definition of ‘proceeds of crime‟ given under Section 2 (1) (u) of the Act of 2002 has been given. This includes not only the property directly or indirectly coming out of the crime but even property of equivalent value. Thus, it is not necessary that the property attached or seized should be directly or indirectly an outcome of the crime rather in a given case it can be of an equivalent value to