M/s. Advantage Strategic Consulting Pvt. Ltd. vs The Assistant Director, Directorate of Enforcement, Ministry of Finance, Department of Revenue, Government of India & Others
- Citation2019 SCC OnLine Mad 39421
Ratio decidendi
The rule this decision rests on
A provisional attachment order passed under Section 5(1) of the Prevention of Money Laundering Act, 2002 cannot be challenged by writ petition under Article 226 of the Constitution; the petitioner must first exhaust the statutory remedies provided by the Act, namely proceedings before the Adjudicating Authority under Section 8, and if dissatisfied, pursue appeal rights under Sections 26 and 42 of the Act to the Appellate Tribunal and High Court respectively. When a complaint under Section 5(5) of the PMLA has been filed before the Adjudicating Authority and the provisional attachment order has already been confirmed by that Authority, the writ petition challenging such confirmed order becomes unmaintainable and must be dismissed, as the proper forum for challenging is the Appellate Tribunal and not the High Court under Article 226. The second proviso to Section 5(1) of the PMLA permitting attachment of property where there is reason to believe that non-attachment would frustrate proceedings is not limited to property acquired after the provision came into force; it applies retrospectively to property acquired prior to the coming into force of this provision, and the concept of continuing offence keeps the original offence alive day by day without wiping out the guilt. Procedural violations alleged in the passing of a provisional attachment order—such as the absence of a search under Section 17 of the PMLA or failure to furnish reasons to the affected person—cannot be agitated before the High Court under Article 226 but must be raised before the Adjudicating Authority in the first instance or before the Appellate Tribunal thereafter.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.06.2019
CORAM
THE HONOURABLE Mrs. JUSTICE PUSHPA SATHYANARAYANA
W.P.Nos.26889, 26901, 26908, 29506 and 32558 of 2018 and connected M.Ps.
M/s.Advantage Strategic Consulting Pvt. Ltd. Represented by its Director Mr.M.Rajesh, No.2/33, Nageswara Road, Nungambakkam, Chennai-600 034. .. Petitioner in all Writ Petitions
Vs.
1. The Assistant Director, Directorate of Enforcement, Ministry of Finance, Department of Revenue, Government of India, 6th Floor, Lok Nayak Bhavan, Khan Market, New Delhi-110 003.
2. Development Credit Bank, Rep. by the Branch Manager, Nungambakkam Branch, Old No.37/1, New No.2/1, Jambulingam Street, Nungambakkam, Chennai-600 034.
3. Indian Overseas Bank Rep. by the Assistant General Manager, Nungambakkam Branch, No.109, Nungambakkam High Road, Chennai-600 034.
http://www.judis.nic.in 2
4. Axis Bank rep. by its Branch Head/ The Branch Manager, Mylapore Branch, No.82, Dr.Radhakrishnan Salai, Mylapore, Chennai-600 004. .. Respondents in W.P.Nos.26889, 26901 & 26908/18
5. Union of India rep. by its Secretary, Ministry of Finance, North Block, New Delhi-110 001.
6. The Directorate of Enforcement rep. by its Deputy Director (Intelligence), Ministry of Finance, Department of Revenue, Government of India, 6th Floor, Lok Nayak Bhavan, Khan Market, New Delhi-110 003.
7. Central Bureau of Investigation, rep. by its Director, Plot No.5-B, CGO Complex, Lodhi Road, New Delhi-110 003. .. Respondents in WP No.29506/18
8. The Directorate of Enforcement rep. by its Deputy Director (Intelligence), Ministry of Finance, Department of Revenue, Government of India, 6th Floor, Lok Nayak Bhavan, Khan Market, New Delhi-110 003.
9. Adjudicating Authority, (Prevention of Money Laundering Act, 2002), Room No.26, 4th Floor, Jeevan Deep Building, Parliament Street, New Delhi-110 001. .. Respondents in WP.No.32558/18
***
http://www.judis.nic.in 3
Prayer in W.P.No.26889/2018 : Writ petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorari calling for the records relating to the letter sent by the first respondent to the second respondent dated 24.09.2018 having Ref.F. No.:ECIR/07/HIU/2017 in connection with the accounts held by the petitioner in the second respondent Bank and quash the same as illegal, without authority of law and arbitrary and consequently direct the second respondent to permit the petitioner to operate the current account Nos.06020100003711 and fixed deposit numbers 06025200062736, 06025200062745, 06025200062754, 06025200062763, 06025200062772, 06025200062781, 06025200062790, 06025200062806 and 06025200062815 in the name of the petitioner maintained in the second respondent Bank.
Prayer in W.P.No.26901/2018 : Writ petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorari calling for the records relating to letter sent by the first respondent to the third respondent dated 24.09.2018 having Ref.F.No.:ECIR/07/HIU/2017 directing the third respondent not to allow any debit in the fixed deposit accounts held by the petitioner in the third respondent Bank and quash the same as illegal, arbitrary and without authority of law and consequently direct the third respondent to defreeze debit transactions in the Fixed Deposits accounts having account Nos.018304501500287, 018304501500283 and 018304504500284 held in the name of the petitioner.
Prayer in W.P.No.26908/2018 : Writ petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorari calling for
http://www.judis.nic.in 4
the records relating to letter sent by the first respondent to the fourth respondent dated 24.09.2018 having Ref.F.No.:ECIR/07/HIU/2017 directing the fourth respondent not to allow any debit in the accounts held by the petitioner in the fourth respondent Bank and quash the same as illegal, arbitrary and without authority of law and consequently direct the fourth respondent to defreeze debit transactions in the Current account having account No.912020061379952 held in the name of 'Kodai Woodhouse – A unit of Advantage Strategic Consulting Private Limited'.
Prayer in W.P.No.29506/2018 : Writ petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorari calling for the records of the Provisional Attachment Order No.09/2018 having Ref.No.:ECIR/07/HIU/2017, dated 10.10.2018 passed by the second respondent under Section 5(1) of the Prevention of Money Laundering Act, 2002, attaching assets worth Rs.31.55 Crores belonging to the petitioner and quash the same as without jurisdiction, illegal and vitiated by the vice of malafides and perversity.
Prayer in W.P.No.32558/2018 : Writ petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorari calling for the records of the Complaint dated 26.10.2018 in Provisional Attachment Order No.09/2018, dated 10.10.2018 in ECIR/07/HIU/2017 filed before the second respondent by the first respondent in exercise of powers conferred under Section 5(5) of the Prevention of Money Laundering Act, 2002 (PMLA) seeking an order for confirmation of the Provisional Attachment Order No.09/2018, dated 10.10.2018 in ECIR/07/HIU/2017 under Section 8(3) of Prevention of
http://www.judis.nic.in 5
Money Laundering Act, 2002 (PMLA) and directing the petitioner to handover the possession of the said properties in terms of Section 8(4) of Prevention of Money Laundering Act, 2002 (PMLA) and quash the same as without jurisdiction, illegal and vitiated by the vice of malafides and perversity. ***
For Petitioner in : Ms.Glady Daniel all W.Ps. for Mr.N.Umapathy
For Respondents : Mr.G.Rajagopal, Additional Solicitor General of India assisted by Ms.G.Hema for R1 in all W.Ps and R2 in W.P.No.29506/18
Mr.K.Srinivasan, Special Public Prosecutor for CBI for R2 in W.P.No.29506/18
COMMON ORDER
The petitioner filed all these writ petitions against the
proceedings initiated by the Enforcement Directorate (ED) and as such,
these writ petitions are taken up for hearing together and disposed of
by means of this common order.
2. In W.P.Nos.26889, 26901 and 26908 of 2018, the petitioner
questioned the letter sent by the first respondent to the respondents 2
to 4 dated 24.09.2018 having Ref.No.:ECIR/07/HIU/2017 in
http://www.judis.nic.in 6
connection with the accounts held by the petitioner in those Banks and
sought for consequential directions to the respondents 2 to 4, namely,
(i) to permit them to operate the current account and fixed deposits ;
(ii) to defreeze debit transactions in the Fixed Deposits accounts ; and
(iii) to defreeze debit transactions in the Current account held in the
name of 'Kodai Woodhouse – A unit of Advantage Strategic Consulting
Private Limited'.
2.1. The petitioner filed W.P.No.29506 of 2018 laying challenge
to the Provisional Attachment Order No.09/2018 having
Ref.No.:ECIR/07/HIU/2017, dated 10.10.2018 passed by the second
respondent under Section 5(1) of the Prevention of Money Laundering
Act, 2002, attaching their assets worth Rs.31.55 Crores on the ground
of lack of jurisdiction, illegal and vitiated by the vice of malafides and
perversity.
2.2. W.P.No.32558 of 2018 has been instituted praying to quash
the Complaint dated 26.10.2018 in Provisional Attachment Order
No.09/2018, dated 10.10.2018 in ECIR/07/HIU/2017 filed before the
second respondent by the first respondent in exercise of powers
conferred under Section 5(5) of the Prevention of Money Laundering
Act, 2002 (PMLA) seeking an order for confirmation of the said
Provisional Attachment Order under Section 8(3) of the said Act,
http://www.judis.nic.in 7
wherein, a direction was issued to the petitioner to handover the
possession of the said properties in terms of Section 8(4) of Prevention
of Money Laundering Act, 2002 (in short, "PMLA") on the very same
grounds.
3. The facts, which led to the passing of the impugned
orders/complaint/letter, in a nutshell run as hereunder :
(i) The petitioner was incorporated in 2005 and it is in the
business of Consultancy. It has set up a subsidiary in Singapore. It
has been complying with all laws and has been filing Foreign Liabilities
and Assets (FLA) statement and other statutory compliance papers
before the competent authorities.
(ii) On 15.05.2017, the Central Bureau of Investigation (CBI)
registered a First Information Report (FIR) No.RC2202017 E 0011 for
the offences punishable under Section 120B read with 420 IPC and
Sections 8 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act,
1988 (in short "PC Act"). The case is referred to as "INX Media case".
(iii) The allegation stated therein is that INX Media submitted an
application dated 13.03.2007 before the Foreign Investment Promotion
Board (in short, "FIPB") seeking approval to issue by way of
preferential allotment of shares representing 46.216% of the issued
http://www.judis.nic.in 8
equity share capital of INX Media Private Limited on an "as converted"
basis to three Non-Resident Investors under Foreign Direct Investment
(FDI). The said company in its application disclosed its intention of
making a downstream financial investment to the extent of 26% of the
issued and outstanding share capital of INX News. FIPB approved the
FDI of Rs.4.62 Crores, but did not approve the downstream investment
in INX News and stated that for downstream investment, separate
approval will be required.
(iv) The further allegation in the FIR is that the INX Media Private
Limited, in violation of terms of FIPB, made downstream investment to
the extent of 26% in the capital of INX Media Private Limited and
generated more than 305 crores FDI in INX Media Private Limited
against approved foreign inflow of Rs.4.62 crores by issuing the shares
to the foreign investors at a premium of more than Rs.800/- per share.
It is also alleged that consequently, due to such influence, the officials
of the FIPB not only ignored the serious violations, but also advised
INX Media Private Limited to apply afresh for FIPB approval and the
said fallacious proposal was favourably considered and approved by
the then Finance Minister. The FIR points Mr.Karti P Chidambaram and
INX Media Private Limited as the conspirators to scuttle the probe by
the Income Tax Department.
http://www.judis.nic.in 9
(v) It is also alleged that for the services rendered to INX Group
by Mr.Karti, the petitioner raised invoices approximately for an amount
of Rs.3.5 crores, as Mr.Karti had sustainable interest in the petitioner
company, which he controls indirectly. A sum of Rs.10,00,000/- was
paid by the INX Media favouring the petitioner for the consultancy
charges towards FIPB notification and clarification, which, according to
the FIR, is the illegal gratification payable to Mr.Karti.
(vi) Based on the said FIR registered by the CBI, on 18.05.2017
the ED registered an Enforcement Case Information Report (ECIR)
No.ECIR/07/HIU/2017 alleging commission of offence under Section 3
of the PMLA punishable under Section 4 of the said Act. During the
course of investigation, ED recorded a statement under Section 50 of
the PMLA from one Indrani Mukherjea, who had deposed that Mr.Karti
demanded 1 Million US Dollars for helping INX Group in the Ministry of
Finance. It is claimed by the petitioner that Mr.Peter Mukherjea, who
is none other than the husband of Mrs.Indrani, did not corroborate the
said statement. However, based on the statement of Mrs.Indrani, in
exercise of powers under Section 5(1) of PMLA, a Provisional
Attachment Order No.09/2018 dated 10.10.2018 (PAO) was passed by
the first respondent attaching assets worth Rs.53.83 Crores as
constituting "proceeds of crime" in INX Media case.
http://www.judis.nic.in 10
(vii) The Deputy Director (Intelligence) in the office of the ED, in
terms of Section 5(5) of the PMLA, which mandates the Director or any
other officer, who provisionally attaches a property under sub-section
(1), to file a complaint before the Adjudicating Authority constituted
under Section 6 PMLA stating the facts of such attachment, within a
period of thirty days, filed the complaint dated 26.10.2018 seeking an
order for confirmation of the PAO dated 10.10.2018 under Section 8(3)
of the PMLA.
(viii) In the interregnum, a letter dated 24.09.2018 was
addressed by the Assistant Director/the first respondent in
W.P.Nos.26889, 26901 and 26908 of 2018, to the second respondent
bank therein bearing Ref.F.No.ECIR/07/HIU/2017 seeking certain
particulars of the bank accounts of the petitioner, besides directing
them not to allow any debit by the petitioner in the current account
and fixed deposit accounts without obtaining their permission. A similar
letters of even date were sent by the said Assistant Director to the
third and fourth respondent banks in the above said writ petitions.
(ix) As stated supra, the PAO dated 10.10.2018, the complaint
filed under Section 5(5) of the PMLA before the Adjudicating Authority
dated 28.10.2018 and the orders dated 24.09.2018 freezing the
accounts of the petitioner are challenged in these writ petitions.
http://www.judis.nic.in 11
4. Separate counter affidavits have been filed by the ED in these
writ petitions, wherein, after narrating the facts, the stand has been
taken in the following manner :
4.1. The proceeds of crime calculated during the course of
investigation so far are Rs.62.68 crores and thus, ED has every right
to take action to safeguard the such amount of proceeds of crime.
4.2. As the petitioner tried to liquidate the fixed deposit
accounts, the communication dated 24.09.2018 were sent to the
banks not to permit debit transactions, which were subsequently
clarified to permit all types of transactions in savings and current
accounts and restriction was imposed only with regard to the fixed
deposit accounts.
4.3. The letters sent by the Directorate of Enforcement is only
not to permit the petitioner to debit any money from the account
without obtaining prior permission of the respondent, as the
investigation, including through digital evidence, revealed the
relationship between the petitioner and Mr.Karti. Even those letters
got merged with the subsequent PAO.
4.4. It is stated that the Money Laundering is a continuous
offence.
http://www.judis.nic.in 12
4.5. It is denied that the statement of Mrs.Indrani is the basis of
passing the PAO order and on the other hand, it is stated that the
attachment order has been passed on the basis of the investigation
conducted by the ED authorities. A few of the facts revealed during
the course of investigation and the materials came to light have been
narrated in those counters.
4.6. The PAO is valid for a period of 180 days and within a period
of 30 days of passing such order, the concerned authority has to
forward the complaint under Section 5(5) of the PMLA to the
Adjudicating Authority. If the petitioner impress upon the Adjudicating
Authority with sufficient material that the materials placed before it are
not proceeds of crime, the Adjudicating Authority would not confirm
the PAO. But without availing statutory remedy, the petitioner filed
the instant writ petitions, which are not maintainable.
4.7. The petitioner could very well discharge its burden before
the Adjudicating Authority under Section 24 of the Act. Without doing
so, the petitioner ought not to have filed the instant writ petitions.
4.8. The total amount involved in money laundering is Rs.62.68
Crores, whereas, the value of the property attached is only Rs.54.03
Crores.
http://www.judis.nic.in 13
5. The question that requires determination in these writ
petitions is whether the reliefs sought for by the petitioner can be
granted ?.
6. The learned counsel for the petitioner contended that the ED
authorities have no power to freeze the bank accounts, as they have
got power only to order provisional attachment of the alleged proceeds
of crime under Section 5 of PMLA, upon fulfillment of the mandatory
conditions stipulated therein. However, it is contended by the learned
Additional Solicitor General that the letters sent by the Directorate of
Enforcement to the respondents Banks cannot be considered as the
orders freezing the accounts, as it was clearly mentioned therein that
no debit from the account should be made without obtaining prior
permission of the respondent. It is also contended that in view of the
subsequent PAO dated 10.10.2018, those letters got merged with the
PAO and hence, the writ petitions questioning the said letters have
been rendered infructuous and deserve to be dismissed on this sole
ground.
7. Section 5 of the PMLA deals with attachment of property
involved in money laundering. It is useful to extract Section 5(1) of
http://www.judis.nic.in 14
the PMLA, which reads as hereunder :
"5. Attachment of property involved in money-
Laundering - (1) Where the Director or any other officer not below the rank of Deputy Director authorised by the Director for the purposes of this section, has reason to believe (the reason for such belief to be recorded in writing), on the basis of material in his possession, that -
(a) any person is in possession of any proceeds of crime; and
(b) such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime under this Chapter, he may, by order in writing, provisionally attach such property for a period not exceeding one hundred and eighty days from the date of the order, in such manner as may be prescribed:
Provided that no such order of attachment shall be made unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under section 173 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint has been filed by a person authorised to investigate the offence mentioned in that Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be, or a similar report or complaint has been made or filed under the corresponding law of any other country:
Provided further that, notwithstanding anything contained in clause (b), any property of any person may be attached under this section if the Director or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section has reason to believe (the reasons for such belief to be recorded in writing), on the basis of material in his possession, that if such property involved in money-laundering is not
http://www.judis.nic.in 15
attached immediately under this Chapter, the non-attachment of the property is likely to frustrate any proceeding under this Act."
8. The above provision empowers the ED to provisionally attach
the properties of a person in possession of any proceeds of crime.
Though it is contended that the PAO is bad without filing charge sheet
under Section 173 of the Code of Criminal Procedure (CrPC), the
second proviso permits such attachment even if the charge sheet is
pending, provided there is a "reason to believe" that if the property is
not attached immediately, such non-attachment would frustrate the
proceedings under the PMLA. There are several conditions to be
complied with before ordering / passing PAO.
9. Admittedly, there is a complaint under Section 5(5) of the
PMLA to be adjudicated under Section 8 of the said Act, based on the
the impugned PAO issued under Section 5(1) of the Act. The
requirement for issuing the same is the presence of 'reason to believe'
at every stage, which should be recorded in writing. The 'reason to
believe' to be recorded in writing should be in consonance with the
second proviso to Section 5(1) of the PMLA. Secondly, the notice
under Section 8(1) of the PMLA also should be communicated
recording the 'reason to believe'. Only when there is a violation of the
http://www.judis.nic.in 16
legal requirements, the PAO would be rendered illegal.
10. It is to be stated that the PAO is valid for a period of 180
days and within a period of 30 days of passing such order, the
concerned authority has to forward a complaint under Section 5(5) of
the PMLA to the Adjudicating Authority, which has been done in this
case on 26.10.2018. The Adjudicating Authority, after issuing notice,
hearing the parties and considering their reply and other materials,
has to pass a reasoned order as to the nature of the property deciding
whether the property is involved in money laundering or not. It is
contended by the learned Additional Solicitor General of India that in
the instant case, the PAO has been passed after arriving at the
subjective satisfaction as to the reasons and also the material in
possession of the authority. In fact, it is his submission that the total
amount involved in money laundering is Rs.62.68 Crores, whereas, the
value of the property attached is only Rs.54.03 Crores. Admittedly, a
show cause notice was also issued in Section 8 proceedings by the
Adjudicating Authority.
11. It is the contention of the learned counsel for the petitioner
that the authority contemplated under the Act, namely, the Director or
any other officer not below the rank of Deputy Director authorised by
http://www.judis.nic.in 17
him for the purposes of this section, should conduct a search, as
mandated under Section 17 of the PMLA, and also should have "reason
to believe" that the person whose premises is subjected to search is
involved in money laundering, which should be recorded in writing, to
pass an order freezing the accounts. According to the learned counsel
for the petitioner, the absence of search and failure to furnish such
reasons to the affected persons are procedural irregularities, which
would only render the order freezing the accounts illegal.
12. The further contention of the learned counsel for the
petitioner is that at the time of the alleged commission of the offences
under Sections 120B and 420 IPC in the year 2008, those offences
were not included in the schedule to the PMLA and they were included
in the schedule only with effect from 01.06.2009 and thus, ED has no
jurisdiction to register ECIR. Likewise, Section 13(2) and 13(1)(d) of
the Prevention of Corruption Act were also included in the schedule to
PMLA only with effect from 01.06.2009. Without there being any
scheduled offence, there is no question of proceeds of crime to register
the ECIR and commission of scheduled offence is the sine quo non to
invoke the provisions of the PMLA. Thus, it is contended that the PAO
is unsustainable in law. But the contention of the learned Additional
http://www.judis.nic.in 18
Solicitor General is to the effect that the inclusion of Section 420 IPC in
the year 2009 does not make any difference, if the person against
whom the accusation is made or any other persons, who are found to
be "in possession" of some property, which is involved in money
laundering.
13. The learned counsel submitted that the foundation of the
ECIR case rests on the statement recorded under Section 50 of the
PMLA from Mrs.Indrani, who suffers incarceration in a murder case.
Even her husband Peter Mudkherjea did not corroborate the said
statement and therefore, the concocted statement made by
Mrs.Indrani at the instance of the ED officials, could not be the basis to
implicate the petitioner.
14. It is also submitted that even according to the CBI officials,
the petitioner raised invoices approximately to the tune of Rs.3.5
Crores for the alleged services rendered by Mr.Karti to the INX Group,
but the petitioner has no connection with Mr.Karti. It is an admitted
fact that the amount of Rs.3.5 Crores was not paid by INX Media to the
petitioner and only a sum of Rs.10 lakhs was paid to the petitioner for
their services. It is further submitted that the petitioner, Kriya FMCG,
http://www.judis.nic.in 19
CBN Placements have entered into an agreement dated 12.09.2007
with a company called Span Fibres (India) Private Limited, Mumbai,
and received a sum of Rs.3 Crores from the said company between
01.10.2007 and 31.03.2008 on various dates, much prior to the
alleged commission of the offences in the case on hand. Therefore, it
is contended that the ED, having found out that there is no "proceeds
of crime", with an intention to drag the petitioner into the case,
projected the said sum as "proceeds of crime" to usurp jurisdiction.
15. Further, it is the preliminary submission of the learned
counsel for the petitioner that the ED authorities have deliberately
deleted certain contradictory portions in the evidence of one Chand
Ratan Agarwal, which were mentioned in the PAO dated 10.10.2018,
while making the complaint under Section 8(1) of the PMLA to the
Adjudicating Authority and such conduct shows the mala fide exercise
of power warranting interference from this Court at this stage itself.
16. At this juncture, it is reliably learnt that pursuant to the
complaint filed under Section 5(5) of the PMLA, the PAO has been
confirmed by the Adjudicating Authority. Thus, the PAO having been
confirmed by the Adjudicating Authority on 29.03.2019, the same has
http://www.judis.nic.in 20
to be challenged before the Appellate Tribunal.
17. Though the expression 'continuing offence' is not defined in
the PMLA, whether a particular offence is a continuing one or not
depends upon the nature of offence and the purpose intended to be
achieved. The concept of continuing offence is keeping the offence
alive day by day without wiping the original guilt. Thus, there is an
ingredient of continuance of the offence in continuing offence.
Therefore, the contention of the petitioner that the second proviso to
Section 5(1) is only prospective and not retrospective is without
substance or force. The second proviso is applicable to property
acquired even prior to the coming into force of this provision. Hence,
retrospective penalization is permissible.
18. As stated above, when there is a statutory violation, then
only the power of this Court under Article 226 of the Constitution could
be invoked. This Court is of the view that the petitioner could have
agitated the aforesaid procedural violations before the Adjudicating
Authority or at least now before the Appellate Tribunal and the same
could not be agitated before this Court.
http://www.judis.nic.in 21
19. The contention that the person aggrieved over the order of
the Adjudicating Authority has a right to appeal under Section 26 of
the PMLA and also there is a further right of appeal to the High Court
under Section 42 of the PMLA has much force. Thus, the petitioner
ought to have faced the Section 8 proceedings and other appellate
alternative remedies. Without exhausting those remedies, the
petitioner cannot maintain this petition before this Court under Article
226 of the Constitution.
20. Mr.Karti questioned the FIR filed by the CBI before this Court
in W.P.(SR)Nos.69241, 69245 and 69249 of 2017 and this Court vide
order dated 22.08.2017 held that though this Court has jurisdiction, in
the interest of justice and in order to avoid conflicting view did not
entertain those writ petitions. Hence, the submission that the
petitioner ought to have filed writ petition praying the reliefs sought for
herein before the Delhi High Court need not be gone into, having
entertained these petitions at the time of admission.
21. At the risk of repetition, it is to be reiterated that the
complaint filed under Section 5(5) of the PMLA had been adjudicated
http://www.judis.nic.in 22
upon and the PAO has been confirmed by the Adjudicating Authority.
Thus, the petitioner has to challenge the order of the Adjudicating
Authority before the Appellate Tribunal in accordance with law and
these writ petitions have no merit.
22. For the foregoing reasons, all these writ petitions fail and the
same are dismissed as devoid of merits. There shall be no order as to
costs. Consequently, connected miscellaneous petitions are closed.
07.06.2019 Speaking Order Index : Yes/No Internet: Yes gg
To
1. The Secretary, Ministry of Finance, Union of India, North Block, New Delhi-110 001.
2. The Adjudicating Authority, (Prevention of Money Laundering Act, 2002), Room No.26, 4th Floor, Jeevan Deep Building, Parliament Street, New Delhi-110 001.
3. The Director, Central Bureau of Investigation,
http://www.judis.nic.in 23
Plot No.5-B, CGO Complex, Lodhi Road, New Delhi-110 003.
4. The Deputy Director (Intelligence), Directorate of Enforcement, Ministry of Finance, Department of Revenue, Government of India, 6th Floor, Lok Nayak Bhavan, Khan Market, New Delhi-110 003.
5. The Assistant Director, Directorate of Enforcement, Ministry of Finance, Department of Revenue, Government of India, 6th Floor, Lok Nayak Bhavan, Khan Market, New Delhi-110 003.
http://www.judis.nic.in 24
PUSHPA SATHYANARAYANA, J.
gg
W.P.Nos.26889, 26901, 26908, 29506 and 32558 of 2018
07.06.2019
http://www.judis.nic.in
This page reproduces a public judgment and a summary of it. It is research material, not legal advice, and it is no substitute for advice from an advocate on your own facts.
Research this judgment with Miss Lucy
Ask what it holds, what has followed it, and what it means for your matter — in plain English, with the citations.
Try Miss Lucy free