Sanjay Kumar vs Deputy Director Directorate Of Enforcement, New Delhi

FPA-PMLA-2510/DLI/2018

The present appeal has been filed by the appellant under Section 26 of the Prevention of Money Laundering Act, 2002 against the order dated 24th

July, 2018 passed by the Adjudicating Authority in OC No. 896/2018.

The learned Adjudicating Authority allowed the OC, confirming the prayer of the Enforcement Directorate for attachment of the following

immovable property;

a) EK-76, Sector-9, Vasundhra Scheme, Ghaziabad, U.P. (area 162 sq.mts.).

We had heard both sides and already pronounced the order in the court by allowing the appeal vide order dated 12.04.2019. Now, we are giving our

reasons to the aforesaid order as under;-

A. The facts of the case in brief:

i. It is alleged that the appellant herein Shri Sanjay Kumar was posted in the Ahmedabad Zone of Enforcement Directorate in the year 2015 as

Enforcement Officer and was doing investigation of T-3 file No. T-3/17/AMZO/2015 under the provisions of FEMA, 1999. In that case of FEMA

investigation searches were made on 19.03.2015 by Shri Sanjay Kumar as officer, which led to seizure of documents and other electronic evidences

which was shared with Commissioner of Police, Vadodara, this led to registration of FIR No. 11/222/15U u/s 455 of Gambling Act dated 21.03.2015

at Police Station, Kishanwadi, Vadodara, Gujarat.

ii. That another FIR No. 1/85/15 dated 25.03.2015 was registered u/s. 418, 419, 420, 465, 467, 468/471/120B of IPC and u/s 65, 66 and 66(c) of IT

Act at the same Police Station i.e. Kishanwadi, Vadodara therein the allegations were made that the accused persons procured SIM cards on the

basis of fake and forged documents.

iii. On the basis of the FIR No. 1/85/15 dated 25.03.2015, since the offences alleged to have been committed, were the Scheduled offences under

PMLA, 2002 and ECIR No. 3/AMZO/2015 dated 26.03.2015 was registered by the ED, Ahmedabad Zone and the investigation of the same was

entrusted to the present appellant, who after investigation put up Provisional Attachment Order and filed Prosecution Complaints.

iv. In the present case on 22.09.2015 the CBI registered a Criminal case vide RC3A/2015/AC-III under Section 120-B of IPC read with Section 7, 12,

13(2) and 13(1)(d) of PC Act, 1988 against J P Singh, the then Joint Director, ED wherein it was alleged that Mr. Singh with the assistance of the

present appellant and others indulged in corrupt practices in investigation of ECIR No. 3/AMZO/2015. It is alleged that they have taken huge amount

of bribes as quid-pro-quo for acts of omission and commission during the investigation of the above case.

v. The appellant was arrested by CBI on 17.02.2017 and filed charge sheet against him and others. At present the appellant is on bail from the CBI

Court Ahmedabad and facing trials.

vi. On the basis of the registration of the above case by CBI, a PMLA case vide ECIR/02/DLZO-II/2017 dated 17.03.2017 was recorded at New

Delhi for enquiring and investigating the case of accepting huge amount of illegal bribe money by showing fear and coerciveness.

vii. The Enforcement Directorate provisionally attached the aforesaid immovable property vide PAO no. 02/2018 dated 07.02.2018 and filed the OC

bearing no. 896/2018 before the Adjudicating Authority for confirmation of the said property which was confirmed by the Adjudicating Authority on

24.07.2018 & which is impugned before this Tribunal.

B. The case of the appellant:-

In short the case of the appellant, inter-alia, are that the ECIR has been registered by the Department on the basis of false case foisted against him by

the CBI, that appellant is a Government Servant, he has informed the purchase of the plot in question by paying installments from 21.09.1992 to

30.06.1998 under due intimation to the Department as per the Central Government Conduct Rules. The aforesaid facts have not been denied by the

respondent (ED). It is the contention of the respondent (ED) that the aforesaid property as been attached as a “value thereof†in accordance with

provision made under Section 2(1)(u) read with Section 2(1)(v) of the PMLA.

The learned Adjudicating Authority confirmed the prayer of the Enforcement Directorate for attachment of the aforesaid property. The operative

part of the order is reflected in Para no. 21 of the impugned order which is read as under:-

“21. CONCLUSIONS:

I have carefully considered the Written replies filed by the Defendants to the Notice to show cause. I have also considered the rejoinders

filed by the Complainant to the written replies. I have heard the Counsel for Defendants at length. I have also heard the Counsel for the

Complainant. I have taken into account all the relevant materials placed on record before me.

Considering the material in O.C., the written replies and rejoinders an the arguments above referred, I find that the immovable properties

provisionally attached by PAO No. 02/2018 dated 07.02.2018, i.e. immovable property at serial no. 1 (page 44 of PAO) standing in the

name of D-1 and immovable property at serial no. 2 (page 44 of PAO) standing in the name of D-2, are involved in money laundering.

a. I therefore, hereby confirm the attachment of the properties made under sub-section (1) of Section 5 of PMLA. I, therefore, order that the

said Attachment shall continue during investigation for a period not exceeding ninety days or the pendency of the proceedings relating to

any offence under the prevention of Money-Laundering Act, 2002 before a court; and become final after an order of confiscation is passed

under Sub-section (5) or sub-section (7) of section 8 of PMLA by the Special Court.

b. PAO No. 02/2018 dated 07.02.2018 is hereby confirmed.

c. Hence OC no. 896/2018 is allowed.â€​

During the course of their respective submissions the learned counsel for the appellant has drawn our attention to the provision in Section 8(3)(a) of

PMLA, 2002 as amended by Act 13 of 2018. The said amended provision is brought into effect from 19.04.2018. The provision of Section 8(3)(a) of

PMLA, 2002, after amendment, is read as under:-

a) continue during [investigation for a period not exceeding ninety days or] the pendency of the proceedings relating to any [offence under this Act

before a court or under the corresponding law of any other country, before the competent court of criminal jurisdiction outside India, as the case may

be.

On the basis of above, other legal & factual grounds the learned counsel for the appellant prayed this Tribunal to allow the appeal as the

confirmation order of attachment passed by the Adjudicating Authority does not survive.

On the other hand the learned counsel for the respondent admitted that no Prosecution Complaint has been filed against the present appellant. But

Shri Rajesh Kumar Pandey, Deputy Director, Directorate of Enforcement, Delhi Zonal Office-II, the respondent in his written submissions dated

11.04.2019, inter-alia stated that a Prosecution Complaint under Section 44/45 of PMLA, 2002 for commission of offences under this Act was filed

before the Hon‟ble Special Judge PMLA, Patiala House Court, New Delhi on 08.02.2018 cognizance has been taken on the complaint and is pending,

listed for 12.04.2019 for arguments. It is further stated that the attached property related to Shri Bimal Ramgopal Agarwal as well as Shri Sanjay

Kumar (the present appellant) has been made part and parcel of the said Prosecution Complaint. It is clear from the written submission of the

respondent as well as oral submissions made by the learned counsel for the respondent that ED has filed Prosecution Complaint only against Shri

Bimal Ramgopal Agarwal, not against the present appellant but the property of present appellant has been made part and parcel of the said

prosecution complaint.

It is strange to note here that an immovable property of a person has been made part of a prosecution complaint for confiscation without making that

person as a party and affording that person an opportunity to defend his case.

Section 8(3)(a) of PMLA has been amended by the Act 13 of 2018, wherein a limitation period has been provided for continuation of attachment or

retention of property or record post confirmation of attachment/retention. It is the intention of the legislature not to allow the Investigating Authority to

get the property attached or retained the record/documents/items indefinitely in the name of investigation. It has been admitted, during the course of

oral submissions, by the learned counsel for the respondent that no Prosecution Complaint is pending against Shri Sanjay Kumar, the present appellant

till 12.04.2019 when the appeal was finally argued.

The submissions made by the parties are considered. The relevant provisions of law are also considered along with the factual and legal issues

raised by the parties. The impugned order was passed on 24.07.2018 and no Prosecution Compliant is pending against the appellant even though more

than 250 days from the date of impugned order have already been passed.

Since, we have decided the appeal in the light of amendment brought in the statute as mentioned above hence, we have not gone into other legal

issues raised herein. Under these circumstances, the appeal is allowed. The impugned order is set aside.

In the peculiar circumstances, the appellant may move the concerned Special Court for appropriate remedy, wherein the Prosecution Complaint is

pending and his property has been made part and parcel of that complaint, in accordance with law.

No costs.