FINAL ORDER

27.11.2024 FPA-PMLA-3862/DLI/2021, FPA-PMLA-5851/DLI/2023 By these two appeals under Section 26 of the Prevention of Money Laundering Act, 2002 (in short `the Act of 2002’), a challenge has been made to the order dated 18.12.2020 passed by the Adjudicating Authority confirming the attachment of the properties belonging to the appellant.

2. It is a case where an FIR was registered on 10.07.2006 by Delhi Police for the offence under Section 121, 121A, 122, 123 and 120-B of IPC apart from Section 4 and 5 of the Explosive Substance Act, 1908 (in short `the Act of 1908’) and Section 17,18,20 and 23 of Unlawful Activities (Prevention) Act, 1967 (in short `the Act of 1967’). The FIR was registered when the appellant Aijaz Hussain Khwaja was apprehended near NBCC Building, Bishma Pitamah Marg, Lodhi Road, New Delhi loaded with one bag containing 2.050 Kg RDX concealed in the cavity of the spare wheel of the Car and Rs.49 lakhs. In the investigation, it was revealed that the appellant Aijaz Hussain Khwaja was a resident of District Baramulla of J&K and is presently residing in New Delhi. He was in touch with one Muktiar Ahmed Bhatt @ Ahmed (a Pakistan based LET operative in league with Pakistan ISI). It was to undertake Hawala transaction to circulate the money to several outfits including those involved in militant activities.

3. The ECIR was recorded thereupon by the respondent on 05.02.2007. The investigation in pursuance to the ECIR was also conducted followed by the Prosecution Complaint (PC) before the Special Court, PMLA. The appellant was, in the meanwhile, convicted for the predicate/scheduled offence under Section 5(b) of the Act of 1908 and also under Section 23 of the Act of 1967, while acquitted for all the other offences vide judgment dated 25.05.2009 and sentenced with seven years’ imprisonment vide order dated 26.05.2009. The appellant preferred an appeal against the order of conviction before the High Court of Delhi vide Criminal Appeal No. 1018 of 2009. The said Criminal Appeal was disposed of by Delhi High Court vide judgment dated 09.02.2012. The judgment of conviction dated 25.05.2009 was not interfered, while imprisonment of seven years for the offence under Section 5(b) of the Act of 1908 and Section 23 of the Act of 1967 was reduced to the period already served by the accused. The cash of Rs.49 lakhs seized was ordered to be forfeited to the State by the Trial Court under Section 33 of the Act of 1967.

4. The counsel for the appellant submitted that when the appellant has already been acquitted for the offences other than the offence under Section 5(b) of the Act of 1908 and Section 23 of the Act of 1967, there remains no reasons to continue the attachment. It is for the reason that there is no allegation for acquisition of the property under attachment out of those offences. In the light of the aforesaid, a prayer was made to cause interference in the Provisional Attachment Order so as its confirmation to attach the house and amount of Rs.8 lakhs lying in the bank account. It is more so when the appellant built the house out of the income generated from sale of handicrafts items at Pragati Maidan during the period from 02.04.2006 to 12.04.2006. In fact, only Rs.20-22 lakhs were found during the raid at his residence on 09.07.2006 though recovery of Rs.49 lakhs was shown thereupon. Since the aforesaid amount was earned out of the legitimate business in Kashmiri Handlooms and Handicrafts while holding a stall in Pragagi Maidan, there was no reason for the respondent to attach the amount and so far as residential property i.e. Flat No. 6/4, Second Floor, Jangpura-B, New Delhi is concerned, it was purchased in the year 2005 in the name of his wife Rifat Aijaz. It was on sale of Flat No. A-9, Okhla Vihar, New Delhi in the same year for a consideration of Rs.4,75,000/-.

5. The appellant’s wife was also earning and thus the possession of the properties, movable or immovable attached by the respondent was out