FINAL ORDER

22.10.2024

Dictated by G. C. Mishra:

The present appeal has been preferred against the order of the Ld. Adjudicating Authority (“AA”) dated 01.03.2024 in O.A no. 1027/2023 wherein it has allowed the Original Application (O.A), as mentioned above, filed by the Enforcement Directorate (“ED”) for retention of the seized properties i.e. Rs. 16,50,000/- and jewellery items valued at Rs. 7,61,79,069/- seized on 29.09.2023 under Prevention of Money Laundering Act, 2002 (hereinafter referred to as “PMLA,2002”).

Brief Facts as per O.A.:

I. It is seen from the record that the respondent ED filed O.A before the Ld. AA, registered as O.A no. 1027/2023, against the appellant praying therein for retention of jewellery items and cash seized vide Panchnama dated 29.09.2023 for further investigation in terms of section 17(4) of the PMLA, 2002.

II. It is, inter-alia, pleaded in the said O.A that the Respondent ED registered ECIR vide F.No. ECIR/DLZO-I/43/2021 on the basis of scheduled offences registered vide RC221/2021/E/009 dated 17.05.2021 under section 120-B & 420 of Indian Penal Code & Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 against U.S Awasthi, MD & CEO, Indian Farmer Fertilizers Cooperative Ltd. (IFFCO), Pavinder Singh Gahlaut, MD, Indian Potash Ltd. (IPL), Anmol Awasthi, Anupam Awasthi, Vivek Gahlaut, Pankaj Jain, Promoter of M/s Jyoti Trading Corporation and Rare Earth Group, Dubai, Sanjay Jain, brother of Pankaj Jain, President of M/s Jyoti Trading Corporation, Rajiv Saxena, Chartered Accountant, Sushil, Sr. Vice President, Sushil Kumar Pachisia, an employee of Pankaj Jain, unknown Directors of IFFCO, IPL and unknown others, for criminal conspiracy, cheating and criminal misconduct.

III. It is also revealed from the O.A that the above-named persons entered into criminal conspiracy during the period 2007-2014 cheated and defrauded, IFFCO as well as IPL, the General Shareholders of these entities and the Govt. of India by fraudulently importing fertilizers and other materials for fertilizer production at inflated prices. The accused claimed higher subsidy from Govt. of India, causing thereby huge loss, running into several crores of rupees and that the FIR alleges that they siphoned off the commission from the suppliers through a complex web of fake commercial transactions through multiple companies registered outside India (beneficially owned by the accused persons) to camouflage the fraudulent transaction as genuine amongst other allegations.

IV. It is further revealed from the O.A that during the course of investigation in the above case conducted under PMLA 2002, it was revealed that the appellant, Sh. Ajay Kumar Gupta, sold imported fertilizers to entities in India including entities controlled by the Government of India through a Dubai based company namely Astra Global DMCC, (beneficially owned by Sh. Ajay Kumar Gupta) acting as an intermediary between producers and purchasers and thus gained illegal commissions and that during the course of investigation Sh. Narayan Parasuram was examined and his statement was recorded on 15.09.2023 u/s 50 of PMLA, 2002, wherein he submitted two agreements dated 24.04.2007 and 30.04.2007 and that as per the agreement dated 24.04.2007 the Jordan Phosphate Mining Company (JPMC) was to supply Di- Ammonium Phosphate (DAP) to M/s Astra Global DMCC at the price of USD 300 per MT FOB and as per agreement dated 30.04.2007, the M/s Astra Global DMCC was supplying DAP to India Potash Limited at a much higher price of USD 474 per M.T (the said agreement dated 30.04.2007 was also tendered by Shri. P.S Gahlaut, M.D of IPL in his statement u/s 50 of the PMLA, 2002) V. From the perusal of the above two agreements, it was revealed that the M/s Astra Global DMCC acted, merely as an intermediary to the Indian entity (Indian Potash Limited) and pocketed the illegal profits of about USD 174 per M.T. without any major contribution/value addition and that prior to the incorporation of Astr