Calcutta High Court (Appellete Side)
Adjudicating Authority (Pmla) & Anr vs Sh. Gobinda Das & Ors on 23 November, 2021
Author: T. S. Sivagnanam
Bench: T. S. Sivagnanam
1
11 23.11.2021 MAT 1168 of 2021
RP Ct. No. 16
AN with
IA No. CAN 1 of 2021
Adjudicating Authority (PMLA) & anr.
vs.
Sh. Gobinda Das & ors.
Mr. Ranjan Roy
... for the E.D.
Mr. N. K. Chowdhury
Mr. Nilotpal Chowdhury
Mr. Prabir Bera
... for the respondent
This appeal has been filed by the Adjudicating Authority under the provisions of the Prevention of Money Laundering Act, 2002 (in short 'PMLA') questioning the order dated 1.10.2021 passed in WPA 11578/2021 (Gobinda Das & ors. vs. Union of India & ors.) filed by the respondent nos. 1, 2 & 3 herein, challenging that portion of the order holding that the appellant authorities are to permit the respondents/writ petitioners to operate the bank account and postal accounts by declaring the order of provisional attachment as having lost its efficacy as the confirmation order was not passed within a period of 180 days in terms of Section 5(3) of the Act.
The appellant before us is contending that the learned Single Judge failed to consider the suo motu order passed by the Hon'ble Supreme Court and had interpreted the extension of the period of outer limit in order to enable the tribunals/authorities/judicial and quasi judicial authorities to complete the issues pending 2 before it in view of the pandemic-lockdown, shortage of workmen and support staff. Further, the learned Single Judge failed to consider that the order of Hon'ble Supreme Court did not in so many words specify the position of the tribunals and authority and also that it did not mean that the litigants were allowed to steal march in respect of pending adjudication proceedings because of the pandemic and lockdown.
Furthermore, it is contended that the learned Single Judge has come to the conclusion that the Adjudicating Authority who was a party respondent in the writ petition could not have been treated as a non-litigant and that the litigant namely, the writ petitioner would not be entitled to gain a march over the Adjudicating Authority.
Furthermore, it is submitted that the learned Single Judge by the impugned order has decided all issues without giving affidavits being put in place so that the matter can be heard and considered on merits.
Further, it is specifically submitted that the PMLA is a complete Code by itself providing for every eventuality and the respondents-writ petitioners having participated in the proceedings could not have filed a writ petition.
Learned counsel for the appellant apart from the contentions which have been raised in the memorandum 3 of appeal before us, some of which we have noted above, submitted that the appellant organization did not have the opportunity to file affidavit-in-opposition and interpretation given by the learned Single Judge treating the Adjudicating Authority as a non-litigant would have a far reaching consequence and also that the case in hand may be relied upon as a precedent in other matters. He further submitted that the effect of the decision of the Hon'ble Supreme Court in S. Kashi vs. State through the Inspector of Police Samaynallur Police Station, Madurai District reported in (2020) SCC Online Supreme Court 529 and Vikas WSP Ltd. vs. Directorate Enforcement reported in 2021 (376) ELT 201 (Del.) and other decisions relied upon by the respondent/writ petitioners are all distinguishable on facts.
It is further submitted by the learned counsel for the appellant that the appellant has challenged that portion of the order passed by the learned Single Judge holding that the order of provisional attachment has lost its efficacy and the appellant cannot take the benefit of the suo muto order passed by the Hon'ble Supreme Court as the appellant department is not a litigant. After holding so, the learned Single Judge has directed the appellant to proceed and conclude the adjudicating proceedings which has been duly complied with by the Adjudicating Authority and an order has been passed on 9.11.2021 by which the order of provisional attachment 4 has been confirmed which shall continue till the matter is finally heard and decided in terms of the provisions of the PMLA.
It is submitted that if the respondent/writ petitioners are aggrieved by such orders, the remedy lies by way of preferring an appeal seeking correctness of the said order and the same cannot be canvassed in this appeal which has been filed by the department. Hence, the learned counsel prays for setting aside that portion of the order.
The learned counsel appearing on behalf of the respondent submits that the learned Single Judge has rightly held that the decision of the Hon'ble Supreme Court in suo motu writ petition cannot be taken advantage of by the Adjudicating Authority and if an order of confirmation of provisional attachment is not passed within the statutory limit, it will lose its efficacy and this is precisely what the learned Single Judge held.
Further, it is submitted that the learned writ court had passed the order of 1.10.2021 and the appellants had filed the instant appeal on 7.10.2021 and notice of the appeal was served on the respondent nos. 1, 2 and 3 on 8.10.2021 and without giving an opportunity of hearing to the respondent/writ petitioners ex parte adjudicating order has been passed on 09.11.2021 and such order should be set aside and respondent/writ petitioners have to be heard and the matter is to be decided on merits. Further, with regard to allegations 5 that the entire bank accounts of the respondent/writ petitioners have been freezed and one of such account in AXIS Bank, Madhyamgram Branch bearing No. XX2742 has been swiped off and the entire amount of Rs. 14 lacs have been debited from the said account which could not have been done by the appellant authority. He further submitted that similar move has also been adopted by the Adjudicating Authority in respect of other accounts of the respondent/writ petitioners.
We have elaborately heard learned counsel for the parties. We are of the considered view that the order and direction issued by the learned Single Judge coupled with the observations and findings rendered therein would have far reaching consequences. We say so because the learned Single Judge has come to the conclusion that the Adjudicating Authority exercising power under the PMLA and any other enactment is a non- litigant and the Adjudicating Authority cannot take umbrage under the order passed by the Hon'ble Supreme Court while computing the period of 180 days in terms of Section 5(3) of the Act. It has to take a decision under the provisions of the PMLA.
We find that the writ petition is of year 2021 and the same has been allowed. We also find that no adequate opportunity was granted to the appellant to file affidavit-in-opposition. If the writ petition needs to be allowed at the admission stage and/or soon thereafter the court should record the finding that the affidavit-in- 6 opposition is not required to be filed or if the contesting respondents give away its right to file affidavit-in- opposition. Therefore, we are of the considered view that the writ petition could not have been allowed with the finding and observations contained therein which may affect other litigants as well. That apart we find the learned writ Court after making such observations holding the appellant as a 'non-litigant' has granted a direction in the penultimate paragraph of the impugned order with an observation that the order passed in the writ petition will not prevent the Adjudicating Authority from passing final order of adjudication in the pending proceeding in accordance with law which, according to the appellants, had already been concluded and final orders passed. The respondents/writ petitioners have not preferred an appeal against the said finding. Therefore the Adjudicating Authority proceeded to pass a final order of adjudication on 9.11.2021. The learned counsel appearing for the respondents/writ petitioners vehemently contended that the Adjudicating Authority having filed an appeal before this Court against a portion of the order passed in the writ petition could not have proceeded to pass an order of adjudication dated 9.11.2021 without hearing the respondents/writ petitioners. Firstly, we need to point out that the order dated 9.11.2021 passed by the first appellant is not an order which is impugned before us. Rather, the present appeal filed by the department against order passed in the writ petition filed by the writ 7 petitioners/respondents questioning the correctness and efficacy of the order of provisional attachment. As of now, the order of provisional attachment is no longer in existence because a final adjudication order has been passed on 9.11.2021. Thus, as on date the prayer sought for in the writ petition would have to be held to be infructuous. Be that as it may, the respondents/writ petitioners seek liberty to question the order passed by the Adjudicating Authority dated 9.11.2021 on all grounds, both factual and legal, including the contention that it has been passed in violation of the principles of natural justice.
Learned counsel for the appellants submitted that the respondents were given opportunity of being heard in the matter. We do not wish to make any observation in this regard and we leave it to the Tribunal to take a decision as to whether the respondents had any adequate opportunity before the Adjudicating Authority while passing the final order of adjudication dated 9.11.2021.
In the light of the above, the findings recorded by the learned writ Court whether the appellant is a 'non- litigant' needs to be vacated and, accordingly, stand vacated in its entirety. We are disturbed by the fact that though an order of attachment has been passed the learned counsel for the respondents/writ petitioners has demonstrated before us that one of the bank accounts has been debited to the tune of Rs.14 lacs leaving the 8 balance amount as zero. It is not clear as to how the bank account of the writ petitioners/respondents could have been debited in its entirety. The order of Adjudicating Authority is an order of attachment. In this regard the learned counsel for the appellant assures the Court that he will advise officers accordingly in respect of any of the bank accounts needs to be restored and there should be clear intimation to the writ petitioners/ respondents as to what happened to the amount of Rs.14 lacs which has been debited from the said bank account and other bank accounts and also as to where the money is lying.
We make prima facie observation that an order of attachment would mean that status quo needs to be maintained and it could not mean that the person who has attached a property can appropriate the property before a final order was passed. This principle needs to be borne in mind and appropriate orders be passed by the appellant.
For the above reasons, the appeal and the connected application are allowed observing the order passed in the writ petition and the findings rendered therein to the effect that the appellant is a 'non-litigant' stands vacated and simultaneously the writ petitioners/respondents are granted liberty to question the order dated 9.11.2021 passed by the Adjudicating Authority on all grounds, both factually and legally, before the appropriate forum in accordance with law. 9
After we have dictated the above order, the learned Counsel for the respondents/writ petitioners submitted that there have been occasions where the learned writ Court granted direction to the Enforcement Directorate to permit withdrawal of certain sums of money from the attached bank accounts for the sustenance of the persons and prays for similar relief. Unfortunately in this appeal proceeding, such relief cannot be granted to the respondents/writ petitioners but leave is granted to the respondents/writ petitioners to approach before the appropriate authority which shall be considered by the authority in accordance with law.
(T. S. Sivagnanam, J.) (Hiranmay Bhattacharyya, J.)