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Judgment
Stages,Retention of Property,Attachment of Property
1.,S. 20(1): Recording of „reason to believe‟,S. 5(1): Recording of „reason to believe‟
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2.,S.17(4): OA within 30 days,S. 5(5): OC within 30 days
3.,S. 20(2): Order by the Authorized Officer,S. 5(1): Order by the Authorized Officer
4.,"Rule 4 of Retention Rules, 2005
Acknowledgment of Order by the
Adjudicating Authority",":Rule 5 of Attachment Rules, 2005: Acknowledgment of
Order by the Adjudicating Authority
5.,S.20(1): Outer limit of 180 days,S.5(1): Outer limit of 180 days
6.,S.8(3): Order by the Adjudicating Authority,S. 8(3): Order by the Adjudicating Authority
7.,"S.8(3)(a): Retention restricted to 90 days
during investigation.","S.8(3)(a): Attachment restricted to 90 days during
investigation.
Authority.].,,
Section 18 of PMLA, 2002 reads as under:",,
“18. Search of persons. â€",,
(1) If an authority, authorised in this behalf by the Central Government by general or special order, has reason to believe (the reason for",,
such belief to be recorded in writing) that any person has secreted about his person or in anything under his possession, ownership or",,
control, any record or proceeds of crime which may be useful for or relevant to any proceedings under this Act, he may search that person",,
and seize such record or property which may be useful for or relevant to any proceedings under this Act:,,
[Provided that no search of any person 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 the Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case",,
may be.],,
(2) The authority, who has been authorised under sub-section (1) shall, immediately after search and seizure, forward a copy of the reasons",,
so recorded along with material in his possession, referred to in that sub-section, to the Adjudicating Authority in a sealed envelope, in the",,
manner, as may be prescribed and such Adjudicating Authority shall keep such reasons and material for such period, as may be prescribed.",,
(3) Where an authority is about to search any person, he shall, if such person so requires, take such person within twenty-four hours to the",,
nearest gazetted officer, superior in rank to him, or a Magistrate:",,
Provided that the period of twenty-four hours shall exclude the time necessary for the journey undertaken to take such person to the nearest,,
gazetted officer, superior in rank to him, or Magistrate's Court.",,
(4) If the requisition under sub-section (3) is made, the authority shall not detain the person for more than twenty-four hours prior to taking",,
him before the Gazetted Officer superior in rank to him, or the Magistrate referred to in that sub-section:",,
Provided that the period of twenty-four hours shall exclude the time necessary for the journey from the place of detention to the office of the,,
Gazetted Officer, superior in rank to him, or the Magistrate's Court.",,
(5) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search,",,
forthwith discharge such person but otherwise shall direct that search be made.,,
(6) Before making the search under sub-section (1) or sub-section (5) the authority shall call upon two or more persons to attend and witness,,
the search, and the search shall be made in the presence of such persons.",,
(7) The authority shall prepare a list of record or property seized in the course of the search and obtain the signatures of the witnesses on the,,
list.,,
(8) No female shall be searched by any one except a female.,,
(9) The Authority shall record the statement of the person searched under sub-section (1) or sub-section (5) in respect of the records or,,
proceeds of crime found or seized in the course of the search:18 [***],,
(10) The authority seizing any record or property under sub-section (1) shall, within a period of thirty days from such seizure, file an",,
application requesting for retention of such record or property, before the Adjudicating Authority.",,
Sub-section (1), (2) and (3) of Section 20 read as under:-",,
Retention of property.â€",,
(1) Where any property has been seized under section 17 or section 18 or frozen under sub-Section (1A) of Section 17 and the officer,,
authorised by the Director in this behalf has, on the basis of material in his possession, reason to believe (the reason for such belief to be",,
recorded by him in writing) that such property is required to be retained for the purposes of adjudication under section 8, such property",,
may, if seized be retained or if frozen, may continue to remain frozen, for a period not exceeding one hundred and eighty days from the day",,
on which such property was seized or frozen, as the case may be.",,
(2) The officer authorized by the Director shall, immediately after he has passed an order for retention or continuation of freezing of the",,
property for purposes of adjudication under section 8, forward a copy of the order along with the material in his possession, referred to in",,
sub-section (1), to the Adjudicating Authority, in a sealed cover, in the manner as may be prescribed and such Adjudicating Authority shall",,
keep such order and material for such period as may be prescribed.,,
(3) On the expiry of the period specified in sub-section (1), the property shall be returned to the person from whom such property was seized",,
or whose property was ordered to be frozen unless the Adjudicating Authority permits retention or continuation of freezing of such property,,
beyond the said period.,,
Section 21 of PMLA reads as under:-,,
“21. Retention of records. â€",,
(1) Where any records have been seized, under section 17 or section 18 or frozen under sub-section (1A) of section 17 and the Investigating",,
Officer or any other officer authorised by the Director in this behalf has reason to believe that any of such records are required to be,,
retained for any inquiry under this Act, such records may if seized, be retained or if frozen, may continue to remain frozen, for a period not",,
exceeding one hundred and eighty days from the day on which such records were seized or frozen, as the case may be.",,
(2) The person, from whom records seized or frozen, shall be entitled to obtain copies of records.",,
(3) On the expiry of the period specified under sub-section (1), the records shall be returned to the person from whom such records were",,
seized or whose records were ordered to be frozen unless the Adjudicating Authority permits retention or continuation of freezing of such,,
records beyond the said period.,,
(4) The Adjudicating Authority, before authorising the retention or continuation of freezing of such records beyond the period specified in",,
sub-section (1), shall satisfy himself that the records are required for the purposes of adjudication under section 8.",,
(5) After passing of an order of confiscation [or release under sub-section (5) or sub-section (6) or sub-section (7) of section 8 or section 58B,,
or sub-section (2A) of section 60] , the Adjudicating Authority shall direct the release of the records to the person from whom such records",,
were seized.,,
(6) Where an order releasing the records has been made by the Court [Adjudicating Authority under section (5) of section 21] the Director,,
or any other officer authorised by him in this behalf may withhold the release of any such record for a period of ninety days from the date of,,
(receipt of] such order, if he is of the opinion that such record is relevant for the appeal proceedings under this Act. ]",,
It is clear from the reading of Sections 17 to 21 that outer limit upto the date for deciding the application for retention of property within the,,
meaning of sub-section 4 of Section 21 is 180 days from the date of seizure of any property or records. The said period is not extendable.,,
The person concerned/aggrieved party of such order, is entitled to file the appeal under Section 26 of the Act. The same shall be heard and after",,
giving an opportunity of being heard, the appellant Tribunal shall pass the order either to confirm the order of retention or to modify or setting aside the",,
same.,,
Where the Adjudicating Authority decides by an order confirm the retention under Sub-section (1) of Section 17 or Section 18 for the purpose of,,
continuation during investigation for a period not exceeding ninety days under this Act before the Competent Court, or under the corresponding law of",,
any other countries as the case may be under Sub-section (3) (a) of Section 8 may take necessary action within the time prescribed. In failure to do so,,
under this Act, all the proceedings, seizures/frozen under Section 17 would be lapsed ipso facto.",,
It is settled law that if a particular thing is to be done in a particular manner, it must be done in that manner only and none other. Reliance in this",,
regard is also placed on a judgements of Hon’ble Supreme Court in the cases of Dipak Babaria and another vs. State of Gujarat 2014 (3) SCC,,
502 and J. Jayalalitha & Anr vs State of Karnataka & Ors 2014 (2) SCC 401.,,
Counsel for the respondent has admitted before us that appellants are not arrayed in the FIR nor any criminal complaint is pending. He is also not,,
sure whether the material seized by the respondent have any link and nexus with the main accused. It is not denied by the counsel for the respondent,,
that more than a year and six months have been passed, nothing was revealed against the appellant.",,
The provisions of section 8 (3) (a) provides that the attachment or retention of property or record seized shall continue during the investigation for,,
a period not exceeding ninety days. In the instant case, the search of the residential premises was conducted on 31.11.2017 and the Adjudicating",,
Authority has confirmed the OA on 22.05.2018.,,
It is admitted position that no prosecution complaint has been filed against the Appellant herein. The properties and records of the Appellant were,,
seized only for the purpose of investigation. The period of 90 days as prescribed under section 8 (3) (a) has already elapsed.,,
Thus, we allow the appeal. We direct the respondent to return the properties retained by the respondent as the prescribed period of 90 days under",,
section 8(3)(a) has already been expired. The seizure lapses after the said period if no prosecution complaint is filed.,,
The prayer in the appeal is allowed. The impugned order is set-aside.,,