Bombay High Court
Rohin Modi S/O. Nirav Modi vs Union Of India And Ors on 4 March, 2020
Bench: B. P. Dharmadhikari, N. R. Borkar
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Pdp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 1199 OF 2020
Rohin Modi S/o Nirav Modi .. Petitioner
Vs.
Union of India and Ors. .. Respondents
Mr. Amit Desai, Senior Advocate a/w Mr. Abhimanyu Bhandari i/by
Lakshyaved R. Odhekar, Ms. Nattasha Garg and Ms. Janki Bhide for
Petitioner.
Mr. Anil Singh, Addl. Solicitor General a/w Mr. Hiten Venegavkar, Mr.
Aditya Thakkar, Mr. Mayur Jaisingh for Respondent Nos.1 and 2.
Dr. F. R. Shaikh, APP for State.
CORAM: B. P. DHARMADHIKARI, ACTING CJ. &
N. R. BORKAR, J.
MARCH 04, 2020.
P.C.
1. Petition filed on 2nd March 2020 is circulated today for urgent orders pointing out that auction of paintings is scheduled by Respondent Nos.1 and 2 tomorrow i.e. 5th March, 2020.
2. Contentions are, the owner of the paintings - Respondent No.4
- Trust did not receive any notice either of attachment or of its confirmation or any notice of auction. It is claimed that Petitioner, who is ::: Uploaded on - 05/03/2020 ::: Downloaded on - 06/03/2020 02:47:21 ::: 2 904-cri-wp-1199-2020.doc one of the beneficiaries of the Trust, has also not received any such notice. It is pointed out that Provisional Attachment Order: 05/2019 dated 25 th February, 2019 does not mention said paintings as attached items.
3. Without prejudice, it is submitted that as per Section 8 of the Prevention of Money Laundering Act, 2002 (for short the Act of 2002), the attached property could not have been sold and, therefore, a story that those paintings are subject to speedy and natural decay so as to enable Respondents to take recourse to Rule 4(2) of the Prevention of Money Laundering (Taking Possession of Attached or Frozen Properties confirmed by the Adjudicating Authority) Rules, 2013 (for short the Rules of 2013) has been invoked. It is submitted that paintings are stored in climate controlled condition as of now and as such there is no question of the same being decayed. On the contrary, they constitute a property which gains appreciation.
4. Our attention is also invited to the fact that in relation to 113 paintings, the Income Tax Department has still not taken any such action.
5. The learned Counsel appearing for the Respondent Nos.1 and 2 submits that the Provisional Attachment Order dated 25th February, 2019 ::: Uploaded on - 05/03/2020 ::: Downloaded on - 06/03/2020 02:47:21 ::: 3 904-cri-wp-1199-2020.doc was given due publicity and the Trust was aware of the same. He also states that this order was confirmed in due course of time and present petitioner, who attained majority in May, 2019, has never questioned this order. The auction has been announced in January, 2020 and despite this, Petition has been filed at the eleventh hour.
6. Our attention is invited to the fact that in Petition there is no express mention of fact that paintings were never attached. It is submitted that after Provisional Attachment Order, in March, 2019, the corrigendum was issued and in it these paintings have been mentioned. The confirmation order by Adjudicating Authority is after this corrigendum. It is further submitted that as the cost of preserving the paintings is found excessive, provisions of Rule 4 have been rightly invoked and auction was announced in January 2020. It is further pointed out that auction was earlier scheduled on 27th February, 2020 and it has been now re-scheduled on 5th March, 2020.
7. Our attention is invited to Writ Petition No.992 of 2019 to urge that there also attempt was to frustrate the auction then scheduled just day before the day scheduled for auction.
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8. It is submitted that there is no mention in the Petition that Petitioner got knowledge recently to justify such late approach. Contention is that any intervention by this court at this stage may result in disturbing the bidders and sabotaging the entire process.
9. Respective learned Counsel state that department has not been given sufficient time to file any reply affidavit and only on the basis of one invoice (Exh.-4, page 77 of the Petition), the title to paintings is sought to be established.
10. The petitioner to substantiate his challenge to validity of Section 8, Explanation to Section 3 of the Act of 2002 and Rule 4 of the Rules of 2013 relied upon order passed by the Delhi High Court in W.P. (CRL) 2282/2019 dated 30.10.2019 to show that there the further process after confirmation of provisional assessment came to be stayed. Order passed by Hon'ble Apex Court on 25.10.2019 in Writ Petition (Criminal) No. 289 of 2019 is also relied upon for this purpose along with order dated 10.02.2020 in Writ Petition (Criminal) No. 39 of 2020 passed by it.
11. Petitioner states that in this situation the auction as scheduled cannot be permitted to proceed further.
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12. After hearing respective counsel, we find that the Petition does not contain necessary averments to justify the approach to this court at the eleventh hour. Answer to various questions raised supra definitely call for reply affidavit from respondents and they are entitled to grant of reasonable opportunity therefor.
13. The owner, Respondent No.4 - Trust, has not approached this court in petition. Other beneficiaries/members of the Trust are parents of present Petitioner. They have also not chosen to approach this court. Petitioner, who has become adult in May, 2019, has sworn the affidavit in support of the Petition in New York on 26 th February, 2020 and thereafter the Petition has been filed before this court. There is no attempt to justify late approach.
14. In this situation, we are not inclined to pass interim orders as prayed for.
15. Issue notice to the Respondents. As the validity of statutory provisions has been assailed, notice to Attorney General. Notice is made returnable on 23rd March, 2020. Learned Counsel appearing for ::: Uploaded on - 05/03/2020 ::: Downloaded on - 06/03/2020 02:47:21 ::: 6 904-cri-wp-1199-2020.doc Respondent Nos.1 and 2 waive notice. Learned APP waives notice for Respondent No.5-State.
16. The Respondents shall deposit auction proceeds in a separate account and give details thereof within seven days by proper affidavit. The amount in the said account shall not be touched by the Respondents until further orders of the court in the matter.
N. R. BORKAR, J. ACTING CHIEF JUSTICE
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