Gujarat High Court
Neptune Overseas Ltd vs H S Jain & Ors on 21 April, 2014
Author: A.J.Desai
Bench: A.J.Desai
C/SCA/3270/2014 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3270 of 2014
With
SPECIAL CIVIL APPLICATION NO. 3675 of 2014
================================================================
NEPTUNE OVERSEAS LTD Versus H S JAIN & ORS ================================================================ Appearance in Spl. C.A. No. 3270 of 2014:
MR MIHIR THAKORE, SR. COUNSEL WITH MR. NIKUNT K RAVAL, ADVOCATE for the Petitioners MRS KALPANAK RAVAL, ADVOCATE for the Petitioner MR IH SYED, ASST. SOLICITOR GENERAL OF INDIA, for the Respondents No. 1 MR N.K. PAHWA, ADVOCATE WITH MRS SANGEETA N PAHWA, ADVOCATE for the Respondent No. 4 NOTICE SERVED BY DS for the Respondent(s) No. 2 Appearance in Spl. C.A. No. 3675 of 2014:
MR MIHIR THAKORE, SR. COUNSEL WITH MR. NIKUNT K RAVAL, ADVOCATE for the Petitioners MRS KALPANAK RAVAL, ADVOCATE for the Petitioner MR IH SYED, ASST. SOLICITOR GENERAL OF INDIA, for the Respondents No. 1 MR N.K. PAHWA, ADVOCATE WITH MRS SANGEETA N PAHWA, ADVOCATE for the Respondent No.34 NOTICE SERVED BY DS for the Respondent(s) No. 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE A.J.DESAI Date : 21 /04/2014 CAV COMMON ORDER 1 By way of the present petitions under Articles 14, 19, 21, Page 1 of 40 C/SCA/3270/2014 CAV ORDER 226 and 227 of the Constitution of India, the petitioner in each petition has challenged the Order dated 18.10.2013 as well as the Order dated 31.12.2013, by which different properties of the petitioners have been provisionally attached under the provisions of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as "the PML Act").
2 It is the case of the petitioners that in the year 1999, applications were invited for grant of recognition for forward market exchanges. Pursuant to which, the petitioners had applied for grant of recognition for starting of an exchange and recognition was granted and the exchange was named as National MultiCommodities Exchange of India Ltd (NMCE). The said exchange was started by the petitioner jointly with the Central Warehousing Corporation, a public sector undertaking and Shri Kailash Gupta was its founding promoter and Managing Director. The business of the NMCE was to provide an on line trading platform for the training of commodity. For the purpose of development of software for the same, one M/s CMC Ltd was appointed as software provider and was also given maintenance contract for the same. In the meantime, M/s NAFED, Gujarat Agro Industries Corporation and M/s Punjab National Bank became the shareholders of the said NMCE.
2.1 In or around the year 2005, M/s CMC Ltd unilaterally
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withdrew from the maintenance contract for online trading software, which was the very basis of the existence and continuing operation of NMCE. Thereafter one M/s Arrow Total Solutions Providers Limited (ATSPL) came to be appointed for the purposes of providing software and maintenance of the same for online trading platform. The son of Shri Kailash Gupta as well as his wife and daughter happened to be the Directors of said ATSPL till September, 2007. It is the case of the petitioners that that till date, no complaints have been received, qua, the operation and maintenance of the software platform provided by M/s ATSPL.
2.2 That in or around the year 2010, Shri Kailash Gupta was appointed as Executive Vice Chairman instead of Managing Director of the NMCE. In the same year, a motivated complaint was made by a third party to Forward Market Commission (FMC) which is a Regulatory Authority for the NMCE and accordingly investigations were commenced by FMC into the affairs of the NMCE. Pending the same, vide Resolution dated 26.2.2011, the Board of Directors of the NMCE had divested Shri Kailash Gupta from all executive powers and also changed the designation of Shri Kailash Gupta from Executive Vice Chairman to Vice Chairman.
2.3 That in the interregnum, the petitioners had challenged
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inquiry proceedings/investigation initiated by the FMC before this Court by filing a writ petition, being Special Civil Application No.8377 of 2011, which came to the summarily dismissed. Feeling aggrieved by the said order, the petitioners had preferred an appeal, being Letters Patent Appeal No.1039 of 2011. Pending the appeal, the FMC concluded inquiry proceedings vide Order dated 23.7.2011 having issued a show cause notice only on 21.6.2011 despite having commenced the investigation on14.12.2010, by which the FMC directed the NMCE to lodge a criminal complaint against Shri Kailash Gupta and his family members and others who were involved in the alleged malfeasance found to have been committed in its Order dated 23.7.2011. In the meantime, vide Order dated 9.2.2012 passed in Letters Patent Appeal No. 1039 of 2011, the Division Bench of this Court was pleased to quash and set aside the order dated 23.7.2011 passed by the FMC. 2.4 That against the same, the FMC, NMCE and amongst other respondents were pleased to prefer Special Leave Petition (Civil) No.7497 of 2012 as well as Special Leave Petitions (Civil) No.10225 of 2012 to 10227 of 2012 and other cognate petitions before the Hon'ble Supreme Court of India wherein the Apex Court was pleased to stay the order of this Court passed in Letters Patent Appeal No.1039 of 2011, with the condition that all actions, decisions and proceedings for restoration of the order of FMC were subject to the final outcome of the Page 4 of 40 C/SCA/3270/2014 CAV ORDER Special Leave Petitions. One such Special Leave Petition had also been preferred by one Anilkumar Mishra challenging his cessation as Managing Director of NMCE, whose behest, the proceedings under the Prevention of Money Laundering Act, 2002 ("the PML Act" for short) were initiated. The above referred Special Leave Petitions are pending for hearing.
2.5 It is the case of the petitioners that during the pendency of the above referred Special Leave Petitions, the NMCE had initiated criminal proceedings, by filing an FIR, which was registered at CR I27 of 2012 for the offenses punishable under Sections 406, 408, 409, 420, 465, 466, 467, 468, 471 read with Section 120B of the Indian Penal Code. The application under Section439 of the Code of Criminal Procedure for releasing him on bail filed by Shri Kailash Gupta was not entertained by this Court, however, subsequently, he has been released on bail by the Hon'ble Apex Court for interregnum period on certain terms and conditions by order dated 3.1.2014. The said bail application is pending for further hearing before the Hon'ble Apex Court. 2.6 That the Managing Director of the NMCE informed the concerned authority appointed under PML Act about the conduct of Mr. Gupta. Having received the said information from NMCE, the accounts of the petitioner company came to be freezed under the Page 5 of 40 C/SCA/3270/2014 CAV ORDER provisions of the PML Act. The Deputy Director, appointed under Section49 of the PML Act, after recording reasons, passed orders dated 18.10.2013 and 31.12.2013 under Section5 of the PML Act and provisionally attached the different properties belong to the present petitioners. The Director did file a complaint as contemplated under Section5(5) of the PML Act to the Adjudicating Authority before whom the matter is under challenge.
3 Pursuant to the notice issued by this Court, the respondents have appeared and filed their affidavitinreply. 4 Main contentions to challenge the provisional attachment, as submitted by Mr. Mihir Thakore, learned Senior Counsel, for the petitioner, are as under:
(a) The first contention raised by Mr. Thakore, learned Advocate, for the petitioners is with regard to the jurisdiction of the Director for passing the provisional attachment order since no final report has been forwarded to the Magistrate under Section173 of the Code of Criminal Procedure, 1973 as condition precedent provided under Section5(1)of the PML Act.
(b) The second contention is with regard to passing of two
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different orders of provisional attachment i.e. Order dated 21.2.2013 by which the accounts of the petitioners were freezed and another order dated 18.10.2013 (in Spl. C.A. No. 3270 of 2014), by which provisional attachment order is passed which is not permissible under the PML Act .
(c) The third contention is with regard to nonfulfillment of provisions of unnumbered second proviso to subsection(1) of Section5 of the PML Act i.e. arriving at a conclusion that nonattachment of the property is likely to frustrate the proceedings initiated under the PML Act, since the petitioner company would not be able to transfer the shares which is contrary to the guidelines issued by the Central Government.
(d) The fourth contention is that the facts of the present case are not such, which would establish that the authority would arrive at a satisfaction that, if, provisional attachment order is not passed, the proceedings relating to confiscation under the PML Act of the property would be frustrated.
(e) The last submission of Mr. Thakore is with regard to malicious intentions of the respondents authorities to pass Page 7 of 40 C/SCA/3270/2014 CAV ORDER such orders.
5 Mr. Thakore, learned Senior Counsel, for the petitioners has, by elaborating his arguments with regard to the jurisdiction of the authority, submitted that no final report under Section173 of the Criminal Procedure Code has been forwarded by the investigating agency to the Magistrate. He would submit that the Magistrate has not taken any cognizance upon the first report dated 24.6.2013 submitted by the Investigating Agency pursuant to the lodging of the FIR before the Crime Branch, Gaekwad Haveli Police Station and, therefore, condition precedent of submission of report under Section173 of the Code, contemplated under Section5 of the PML Act is not satisfied. He submitted that further investigation was ordered and second report with regard to the said case was submitted by the Investigating Agency on 15.12.2013. Again, an Order has been passed by the learned Additional Chief Metropolitan Magistrate on 29.1.2014 and the Investigating Agency has been directed to investigate the case further. He, therefore, submitted that in absence of any final report as envisaged under Section 5 of the PML Act, the investigation is not complete and, therefore, the Authority has exceeded in its jurisdiction in passing the order of provisional attachment.
5.1 In support of his submission, Mr. Thakore, learned Senior
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Counsel, has relied upon a decision of the Apex Court in the case of Vinay Tyagi vs. Irshad Ali @ Deepak & Ors., as reported at (2013) 5 SCC 762 and submitted that in absence of any final report received by the Magistrate and in absence of cognizance having been taken by the Magistrate, the authority ought not to have passed the order of provisional attachment. By taking me through the order dated 29.1.2014 passed by the learned Magistrate, he would submit that the court has, prima facie, found out that proper investigation is not carried out by the investigating agency and, therefore, in absence of sufficient material, the authority ought not to have passed an order of provisional attachment.
5.2 Mr. Thakore would further submit that when the petitioner is able to establish that the authority is acting without jurisdiction, this Court can exercise its powers under Article 226 of the Constitution and issue an appropriate writ, order and/or direction to the said authority. By relying upon a decision of the Apex Court in the case of Calcutta Discount Co. Ltd vs. Income Tax Officer, Companies District I, Calcutta & Anr., as reported at AIR 1961 SC 372, he would submit that attaching the property of the petitioners is amounting to unnecessary harassment to the petitioners since it has no jurisdiction to pass such order as submitted hereinabove. If, the case is permitted to proceed further as contemplated under the PLM Act, there would be Page 9 of 40 C/SCA/3270/2014 CAV ORDER delay and petitioners shall have to suffer. By reading paragraphs 27, 28, 29 and 41 of the said decision, Mr. Thakore, learned Senior Counsel, would submit that it is a fit case to entertain the petitions by quashing and setting aside the provisional attachment order. It was argued that availing alternative remedy i.e. challenging the order of Adjudicating Authority by way of filing appeal to the Tribunal and then to the High Court would take longer time and therefore extraordinary power under Article 226 may be exercised.
5.3 With regard to the second contention about passing of two different orders i.e. one for freezing the account and another for present provisional attachment order for the same property, Mr. Thakore, learned Senior Counsel, would submit that order of freezing the property is of 28.2.2013 and was in existence till 22.8.2013, however, second order under Section5 of the PML Act, for attachment of the property, has been passed on 22.10.2013. Therefore when the first order of freezing the security had expired on 22.8.2013, the authority has no power to issue another attachment order under Section5 of the PML Act.
5.4 Though, as stated hereinabove, Mr. Thakore, learned Senior Counsel, has raised different points, he would submit that, so far as the contentions 3 and 4 are concerned, both the contentions are Page 10 of 40 C/SCA/3270/2014 CAV ORDER interconnected and the same can be dealt with together. It is the case of the petitioners that the Government of India, Ministry of Consumer Affairs, Food and Public Distribution, Department of Consumer Affairs, had issued guidelines on 29.7.2009. As per Clause5 of the said guidelines, all disinvestments or fresh issue of equity shares of more than 1% shall be subject to the prior approval of the Forward Markets Commission and, therefore, the apprehension of the Authority that the petitioners would alienate and/or transfer the property, if it is not seized, is without any basis. When the petitioners cannot transfer such shares without prior permission of the FMC, there was no reason for the authority to pass an order under Section5 of the PML Act. The authority, therefore, has no reason to believe that the proceeds of the crime would be concealed, dealt with and/or transferred in such a manner, which may result into frustrating the proceedings relating to the confiscation of the property as provided in the PML Act. By taking me through the affidavitinsurrejoinder filed on behalf of the petitioner on 21.3.2014 before this Court, Mr. Thakore, learned Senior Counsel, would submit that the petitioners are ready and willing to undertake that they shall not transfer the properties belonging to them and, therefore, also the orders be quashed and set aside. 5.5 The last contention with regard to the malicious intention on the part of the respondents authorities in connivance with one Anil Mishra Page 11 of 40 C/SCA/3270/2014 CAV ORDER (the complainant of FIR lodged at Gaikwad Haveli Police Station), Mr. Thakore, learned Senior Counsel, has taken me through different statements of Anil Mishra, one before the police authority while lodging the FIR and before the Hon'ble Apex Court and submitted that they are contradictory in nature. By taking me through the complaint lodged by Mr. Anil Mishra, being the Managing Director of NMCE, he would submit that, initially he had denied any approval by him about the transfer of shares etc. However, when the petitioners produced such approval before the Hon'ble Apex Court, he filed a different affidavit and has alleged that the petitioners had made fraud with regard to those documents. Thus, Mr. Anil Mishra, Director of the NMCE, himself in connivance with the authority, is successful in getting the provisional attachment order. Therefore, in his submission, the provisional attachment orders are to be quashed and set aside. 6 On the other hand, Mr. I.H. Syed, learned Assistant Solicitor General of India, has vehemently opposed the petitions and submitted that the orders impugned in the petitions are all tentative in nature, which are under adjudication before the authority appointed under the PML Act. Proceedings were going on before the authority when the notices were issued by this Court. He would submit that the PML Act is a complete Code, which provides different remedies to a person, who is facing the prosecution under this Act. He would submit that the Page 12 of 40 C/SCA/3270/2014 CAV ORDER adjudicating authority consists of a Chair Person and two other members appointed by the Central Government, who shall adjudicate the complaint received under subsection (5) of Section5 of the PML Act, after giving opportunity of hearing to all concerned and after considering the reply, if, filed by the accused may come to the conclusion that the provisional attachment is bad or is required to be confirmed. He would submit that the life of provisional attachment order is of 180 days only and thereafter the matter is at large before the adjudicating authority under Section8 of the PML Act, has to consider the case put forward by the authority as well as by the accused. The adjudicating authority may quash and set aside the order of provisional attachment and release the property if accused satisfies that money/proceeds involved in the crime are not acquired by money laundering as defined under Section3 of the PML Act. He would further submit that the order passed by the adjudicating authority is appeallable to the Tribunal and thereafter before this Court. He would further submit that when exhaustive remedies are available, this Hon'ble Court would not like to interfere with the proceedings at this stage. 6.1 In reply to the first contention with regard to lack of jurisdiction, Mr. Syed, learned Assistant Solicitor General of India, would submit that Section5 of the PML Act, provides submission of a report, Page 13 of 40 C/SCA/3270/2014 CAV ORDER however, the word "final report" is not used in this provision. The Magistrate has directed further investigation under Section173 (8) of the Code. He would submit that Section 2(r) of the Code defines police report, which is to be forwarded by a police Officer to a Magistrate under subsection (2) of Section173 of the Code. By taking me through the report submitted by the police officer on 24.6.2013, he would submit that the police report, as defined under Section 2(r) of the Code, is submitted as per Section 173(2) of the Code and, therefore, the submission made by the petitioner is required to be discarded. He would submit that Section5 of the PML Act empowers the competent authority to pass an order of provisional attachment in writing, if, the report has been forwarded to the concerned Magistrate under Section 173 of the Code, which has been done by the Investigating Agency on 24.6.2013 as provided under Section 173 (2) of the Code. He would further submit that when the first report was submitted under Section 173(1) of the Code on 24.6.2013 and the date of provisional attachment is of 18.10.2013, there was no order of further investigation and, therefore, also the submission with regard to nonfiling of final report, does not carry any weight to get any order on the ground of non availability of jurisdiction to pass an order under Section5 of the PML Act. He would therefore submit that in the present case when the report was forwarded to Magistrate, the condition precedent to pass an order of Page 14 of 40 C/SCA/3270/2014 CAV ORDER provisional attachment is fulfilled and there is no lack of jurisdiction on the part of the authority.
6.2 Mr. Syed, by relying upon a decision dated 31.7.2013 of the learned Single Judge of this Court in the case of Alive Hospitality And Food Private Limited vs. Union of India, as reported at 2013 (0) GLHELHC 230015, would submit that a writ petition filed by the petitioner challenging the provisional attachment as well as the order of adjudicating authority, confirming the provisional attachment, by giving elaborate reasons and mainly on the ground that the PML Act is a complete Code and when an alternative remedy is available to the parties, did not entertain writ petition under Articles 226 and 227 of the Constitution. By taking me through the said decision, he would submit that the Coordinate Bench of this Court has dealt with the provisions of the PML Act in detail and particularly the provisions of Sections 3, 5, 8 and 24 of the said Act and has held that the PML Act being a complete Code, the High Court would not like to exercise its powers under Article 226 of the Constitution of India. He would further submit that the said decision of the learned Single Judge is not disturbed by the Division Bench of this Court by dismissing the Letters Patent Appeal No.1033 of 2013 by oral judgment dated 21.2.2014. Mr. Syed has also relied upon a recent decision dated 31.1.2014 delivered by the Division Bench of Page 15 of 40 C/SCA/3270/2014 CAV ORDER the Delhi High Court in case of M/s Arun Kumar Mishra vs. Union of India, decided on 31.01.2014 (LPA No.99/2014 and allied matters) and would submit that the Division Bench of the Delhi High Court has refused to entertain the writ petition challenging the provisional attachment order since the matter was pending before the adjudicating authority.
6.3 As far as second contention raised by the petitioners with regard to passing of two different orders of provisional attachment for the same property is concerned, Mr. Syed would submit that without passing an order of provisional attachment by the Authority under Section 17(1)A of the PML Act, it is not practicable to seize any record or property of an individual at the time of search or seizure who is an accused under the PML Act. The authority has passed an order of freezing the account of the petitioners on 28.2.2013, however, subsequent to forwarding the report under Section173 of the Code, the order of provisional attachment has been passed on 18.10.2013 and, therefore, the contention raised by the petitioners is without any legal support. Even, the order of freezing the account had expired on 20.8.2013 since 180 days had expired on that day as per Section20 of the PML Act. He would submit that the petitioners had not challenged the order of freezing the account, however, has challenged the order of Page 16 of 40 C/SCA/3270/2014 CAV ORDER provisional attachment of properties in each of the petitions. 6.4 As far as the third contention raised by the learned Advocate for the petitioners is concerned, it was submitted by Mr. Syed that the order impugned in each of the petitions is a well reasoned order and the Authority has considered the transaction of the company as well as conduct of the petitioner No.2 who was the Managing Director and CEO of the petitioner No.1 company. By taking me through the order of provisional attachment, he would submit that the authority has dealt with the case after scrutinizing the papers before it and, therefore, it cannot be said that the reasons assigned by the competent authority for passing the provisional attachment order, has been passed without the material placed before it. He would further submit that the readiness and willingness shown by the petitioners at this stage for not transferring the property is altogether a different aspect, however, when the authority is prima facie satisfied that there is sufficient material to come to the conclusion that if the property involved in the moneylaundering is not immediately attached, would frustrate the proceedings under the PML Act and, therefore, the authority was right in passing the impugned order.
6.5 As far as the contentions No.4 and 5 raised by the
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petitioners are concerned, it was argued by learned Advocate Mr. Syed that there are guidelines of the Central Government for transferring such shares, but if the property is not attached in time and if the property is transferred by accused contrary to the guidelines issued by the Central Government, the proceedings initiated under the PML Act, would be frustrated and, therefore, the submissions made by learned Advocate for the petitioners do not have any force to seek any writ, order and/or directions under Article 226 of the Constitution of India. 7 Mr. N.K. Pahwa, learned Advocate, appearing for the petitioners, has supported the submission made by Mr. Syed and further argued that when the attachment order was passed on 18.10.2013, a report under Section173 of the Code was submitted and there was no further investigation ordered by the Magistrate. By taking me through the Order dated 3.1.2014 passed by the Hon'ble Apex Court while releasing the petitioner on interim bail, the petitioner was put to strict conditions and had directed the petitioner to cooperate with the on going investigation by the Directorate of Enforcement in all respects. He would further submit that, though, the order of attachment was passed on 18.10.2013 and 31.12.2013, the petitions have been filed only after about four and half months, that too, after getting the interim bail from the Hon'ble Apex Court. He would further submit that instead of cooperating with the Directorate of Enforcement, the petitioners are Page 18 of 40 C/SCA/3270/2014 CAV ORDER trying to delay the proceedings initiated under the PML Act by filing the present petitions at a premature stage.
7.1 As far as the allegations made against Mr. Anilkumar Mishra, he would submit that, Mr. Phawa has categorically stated before the Hon'ble Apex Court that whatever documents have been produced by the petitioners either in the present proceedings or before the authorities under the PML Act, are subject to the further investigation. Mr. Phawa would further submit that the order of further investigation upon him under Section173 (8) of the Code is stayed by this Court in Special Criminal Misc. Application No.1359 of 2014, vide order dated 4.4.2014 and the matter is pending for final bearing before this Court. 7.2 He would further submit that all these aspects may not be gone into at this stage when the order of provisional attachment is challenged by the petitioners under Article226 of the Constitution of India. He would therefore request that both the petitions be summarily dismissed.
8 I have heard learned Advocates appearing for the respective parties. Before dealing with the facts of the case, I would like to reproduce certain provisions of the PML Act.
8.1 The object of introducing the PML Act, 2002, is to obviate Page 19 of 40 C/SCA/3270/2014 CAV ORDER
the serious threats not only to the financial system of the country but also its integrity and sovereignty. At international level also steps have been taken to prevent the money laundering. Therefore, to deal with the order of provisional attachment, the following provisions of the PML Act, 2002 are reproduced.
Section 2(u)"Proceeds of crime" means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property.
8.2 Money laundering is defined in detail in Section3 of the Act which reads as under:
3. Offence of moneylandering Whosoever, directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected [proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming] it as untainted property shall be guilty of offence of money laundering.
8.3 PML Act, 2002 deals with Attachment, Adjudication and Confiscation of the property which is of proceeds of crime. Section5 which deals with Attachment of property involved in moneylaundering which reads as under:
5. Attachment of property involved in money laundering (1) Where the Director or any other officer not below the rank of Deputy Director authorized 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 Page 20 of 40 C/SCA/3270/2014 CAV ORDER
(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 authorized 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 authorized 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 moneylaundering is not attached immediately under this Chapter, the nonattachment of the property is likely to frustrate any proceeding under this Act.] (2) The Director, or any other officer now below the rank of Deputy Director, shall, immediately after attachment under subsection (1), forward a copy of the order, along with the 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 order and material for such period as may be prescribed.
(3) Every order of attachment made under subsection (1) shall cease to have effect after the expiry of the period specified in that subsection or on the date of an order made Page 21 of 40 C/SCA/3270/2014 CAV ORDER under subsection (2) of section8, whichever is earlier.
(4) Nothing in this section shall prevent the person interested in the enjoyment of the immovable property attached under subsection (1) from such enjoyment.
Explanation - For the purposes of this subsection "person interested", in relation to any immovable property, includes all persons claiming or entitled to claim any interest in the property.
(5) The Director or any other officer who provisionally attaches any property under subsection (1) shall within a period of thirty days from such attachment, file a complaint stating the facts of such attachment before the Adjudicating Authority."
8.4 As per Section6 of the Act, the Central Government appoints Adjudicating Authority. Section8 deals with the procedure of adjudication when a complaint has been received under subsection(5) of Section5 of the Act. Section8 of the Act reads as under:
"8 Adjudication (1) On receipt of a complaint under sub section (5) of Section5, or applications made under sub section (4) of Section17 or under subsection (10) of Section18, if the Adjudicating Authority has reason to believe that any person has committed an [offence under section3 or is in possession of proceeds of crime], he may serve a notice of not less than thirty days on such person calling upon him to indicate the sources of income, earning or assets, out of which or by means of which he has acquired the property attached under subsection (1) of section5, or, seized (or frozen] under section3 or is in possession of proceeds of crime], he may serve a notice of not less than thirty days on such person calling upon him to indicate the sources of his income, earning or assets, out of which or by means of which he has acquired the property attached under subsection (1) of section 5, or, seized [or frozen] under section17 or section 18, Page 22 of 40 C/SCA/3270/2014 CAV ORDER the evidence on which he relies and other relevant information and particulars, and to show cause why all or any such properties should not be declared to be the properties involved in moneylaundering and confiscated by the Central Government:
Provided that where a notice under this subsection specifies any property as being held by a person on behalf of any other person, a copy of which notice shall also be served upon such other persons:
Provided further that where such property is held jointly by more than one person, such notice shall be served to all persons holding such property.
(2) The Adjudicating Authority shall, after
(a) considering the reply, if any, to the notice issued under subsection (1);
(b) hearing the aggrieved person and the Director or any other officer authorized by him in this behalf, and
(c) taking into account all relevant materials placed on record before him, by an order, record a finding whether all or any of the properties referred to in the notice issued under subsection (1) are involved in moneylaundering:
Provided that if the property is claimed by a person, other than a person to whom the notice had been issued, such person shall also be given an opportunity of being heard to prove that the property is not involved in money laundering.
(3) Where the Adjudicating Authority decides under sub section (2) that any property is involved in moneylaundering, he shall, by an order in writing confirm the attachment of the property made under subsection (1) of Section 5 or retention of property or [record seized or frozen under Section17 or Section18 and record a finding to that effect, whereupon such attachment or retention or freezing of the seized or frozen property] or record shall Page 23 of 40 C/SCA/3270/2014 CAV ORDER
(a) continue during 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; and
(b) become final after an order of confiscation is passed under subsection (5) or subsection (7) of Section8 or Section58B or subsection (2A) of Section 60 by the Adjudicating Authority] (4) Where the provisional order of attachment made under subsection5 has been confirmed under subsection (3), the Director or any other officer authorized by him in this behalf shall forthwith take the possession of the property attached under Section5 or frozen under subsection (1A) of Section 17, in such manner as may be prescribed:
Provided that if it is not practicable to take possession of a property frozen under subsection (1A) of Section17, the order of confiscation shall have the same effect as if the property had been taken possession of.] (5) Where on conclusion of a trial of an offence under this Act, the Special Court finds that the offence of money laundering has been committed, it shall order that such property involved in the money laundering or which has been used for commission of the offence of moneylaundering shall stand confiscated to the Central Government.
(6) Where on conclusion of a trial under this Act, the Special Court finds that the offence of money laundering has not taken place or the property is not involved in money laundering, it shall order release of such property to the person entitled to receive it.
(7) Where the trial under this Act cannot be conducted by reason of the death of the accused or the accused being declared a proclaimed offender or for any other person or having commenced but could not be concluded, the Special Court shall, on an application moved by the Director or a person claiming to be entitled to possession of a property in respect of which an order has been passed under subsection (3) of Section8, pass appropriate orders regarding Page 24 of 40 C/SCA/3270/2014 CAV ORDER confiscation or release of the property, as the case may be, involved in the offence of moneylaundering after having regard to the material before it."
9 Now, dealing with the first submission with regard to submission submission of report under Section173 of the Code is concerned, it appears from the record that the First Information Report for the offenses punishable under Sections 406, 408, 409, 420, 465, 466, 467, 468, 471, 473A read with Section 120B of the Indian Penal Code came to be filed by one Anil Narad Mishra, Managing Director and Executive Officer of NMCE on 27.4.2012 against several accused including the present petitioner No.2. The matter was investigated by Police Inspector of Crime Branch, Ahmedabad City, and having found sufficient material, forwarded a report to the learned Additional Chief Metropolitan Magistrate, Court No.11, Ahmedabad on 24.6.2013. A second report i.e. supplement to the first report dated 24.6.2013 was forwarded to the Magistrate on 15.12.2013. Subsequent to the submission of supplementary report, again an application was submitted by the present petitioner under Section 173(8) of the Code requesting to the learned Magistrate to direct the investigating Agency to further investigate the case on the ground that the complainant himself was one of the parties who had approved certain transfer of shares along with the accused. It is true that by earlier order dated 29.1.2014, the learned Additional Chief Metropolitan Magistrate, has Page 25 of 40 C/SCA/3270/2014 CAV ORDER accepted the application under Section 173(8) of the Code, but that order is stayed by this Court. However, the question is, at what stage the Officer can pass an order of provisional attachment under Section5 of the PML Act?
9.1 The first unnumbered provisio says that the authority cannot pass an order of attachment unless a report is forwarded to the Magistrate under Section173 of the Code. In this connection, if the word `report' which has been used in the said proviso is to be appreciated, the provisions of Section173 read with Section 2(r) of the Code is required to be dealt with. Section 2(r) of the Code and Section 173 of the Code are reproduced hereunder:
Sec."2(r) "police report" means a report forwarded by a police officer to a Magistrate under subsection (2) of section 173.
and Sec. "173. Report of police officer on completion of investigation (1) Every investigation under this Chapter shall be completed without unnecessary delay.
1(A) The investigation in relation to rape of a child may be completed within three months from the date on which the information was recorded by the officer in charge of the police station.
(2) (I) As soon as it is completed, the officer in
charge of the police station shall forward to a
Magistrate empowered to take cognizance of the
Page 26 of 40
C/SCA/3270/2014 CAV ORDER
offence on a police report, a report in the form prescribed by the State Government, stating
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be
acquainted with the circumstances of the case;
(d) whether any offence appears to have been
committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and,
if so, whether with or without sureties;
(g) whether he has been forwarded in custody
under section 170;
(h) whether the report of medical examination of
the woman has been attached where
investigation relates to an offence under section 376, 376A, 376B, 376C or 376D of the Indian Penal Code.
(i) The officer shall also communicate, in such
manner as may be prescribed by the State
Government, the action taken by him, to the
person, if any, by whom in information relating to the commission of the offence was first given.
(3) Where a superior officer of police has been appointed under section 158, the report, shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.
(4) Whenever it appears from a report forwarded
under this Section that the accused has been
released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report Page 27 of 40 C/SCA/3270/2014 CAV ORDER
(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during the investigation;
(b) the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.
(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.
(7) Where the police officer investigating the case finds its convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in subsection (5).
(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under subsection (2) has been forwarded to the Magistrate and, where upon such investigation, the officer incharge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of subsections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under subsection (2)."
9.2 As per Section 173 (2) of the Code, the Investigating Agency has to submit the details as stated therein and, therefore, when Page 28 of 40 C/SCA/3270/2014 CAV ORDER the first report was submitted on 26.4.2013, all the details have been submitted by the investigating agency. `Final report' word is not used in Section5 of the PML Act. In my opinion, when the Investigating Agency has found sufficient material to submit a police report as contemplated under Section 173(2) of the Code and when the same is submitted, all ingredients of the proviso to Section 5 of the PML Act is satisfied to proceed with the provisional attachment. The investigation may go on by subject to orders which may be passed by the learned Magistrate as provided under Section173 (8) of the Code itself, but would not debar the competent authority to pass orders under Section5 of the PML Act. In the case of Vinay Tyagi (supra) in paragraphs 27 the Hon'ble Apex Court has held as under:
"27. Here, we will also have to examine the kind of reports that can be filed by any investigating agency under the scheme of the Code.
27.1 Firstly, the FIR which the investigating agency is required to file before the Magistrate right at the threshold and within the time specified.
27.2 Secondly, it may file a report in furtherance of a direction issued under section 156(3) of the Code.
27.3 Thirdly, it can also file a "further report" as
contemplated under Section 173(8).
27.4 Finally, the investigating agency is required to file a
"final report" on the basis of which the court shall proceed to frame the charge and put the accused to trial or discharge him as envisaged by Section 227 of the Code.Page 29 of 40
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9.3 If the ratio laid down by the Hon'ble Apex Court is
considered, the Trial Court can frame charge or may discharge the
accused only after completion of the investigation including orders
which might have been passed by the competent court under Section 173(8) of the Code. The petitioner, who is facing serious charges, under the provisions of the Indian Penal Code, cannot say that till the charge is framed and/or the applicant is discharged, no action can be taken under Section5 of the PML Act. It is true that the court has ample powers under Section 173(8) of the Code to ask the agency to further investigate, but, that does not mean that there is no material against him, though, the police report has already been submitted under Section 173(2) of the Code.
9.4 Even otherwise, as stated, hereinabove, the first report under Section 173(2) was submitted on 24.6.2013 and the second report was submitted on 1.12.2013 and in absence of any report in between this period, when the order of provisional attachment is passed, it cannot be said that the authority had no jurisdiction to pass such order.
9.5 While dealing with the provisions of Section173 of the Code, in the case of Vijay Tyagi (supra), the Hon'ble Apex Court has observed in paragraphs 36 to 42 are relevant are as under.Page 30 of 40
C/SCA/3270/2014 CAV ORDER "36. Interestingly and more particularly for answering the question of legal academia that we are dealing with, it may be noticed that this Court, while pronouncing its judgment in Hemant Dhasmana v. CBI has specifically referred to the judgments S. Papaiah and Bhagwant Singh vs. Commr. of Police. While relying upon the threeJudge Bench judgment of Bhagwant Singh, which appears to be a foundational view for development of law in relation to Section 173 of the Code, the Court held that the Magistrate could pass an order for further investigation. The principal question in that case was whether the Magistrate could drop the proceedings after filing of a report under Section 173(2), without notice to the complainant, but in para 4 of the judgment, the threeJudge Bench dealt with the powers of the Magistrate as enshrined in Section 173 of the Code. Usefully, para4 can be reproduced for ready reference: (Bhagwant Singh case, SCC pp.54143.) "4. Now, when the report forwarded by the officer in charge of a police station to the Magistrate under subsection 2(i) of Section 173 comes up for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things: (1) he may accept the report and take cognizance of the offence and issues process, or (2) he may disagree with the report and drop the proceedings, or (3) he may direct further investigation under subsection (3) of Section 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses; (1) he may accept the report and drop the proceedings, or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process, or (3) he may direct further investigation to be made by the police under subsection (3) of Section 156. Where, in either of these two situations, the Magistrate decides to take cognizance of the offence and to issue process, the informant is not prejudicially affected nor is the injured or in case of death, any relative of the deceased aggrieved, because Page 31 of 40 C/SCA/3270/2014 CAV ORDER cognizance of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed. But if the magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or takes the view that though there is sufficient ground for proceeding against some, there is no sufficient ground for proceeding against others mentioned in the first information report, the informant would certainly be prejudiced because the first information report lodged by him would have failed of its purpose, wholly or in part. Moreover, when the interest of the informant in prompt and effective action being taken on the first information report lodged by him is clearly recognized by the provisions contained in subsection (2) of Section 154, subsection (2) of Section 157 and subsection (2)(ii) of Section 173, it must be presumed that the informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the first information report lodged by him. There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under subsection (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under subsection 2(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. It was argued before us on behalf of the respondents that if in such a case notice is required to be given to the informant, it might result in unnecessary delay on account of difficulty of effecting of the notice on the informant. But we do not think this can be regarded as a valid objection against the view we are taking, because in any case, the action taken by the police on the first information report has to be communicated to the informant and a copy of the report has to be supplied to him under sub section (2)(i) of Section 173 and if that be so, we do not see any reason why it should be difficult to serve notice of the Page 32 of 40 C/SCA/3270/2014 CAV ORDER consideration of the report on the informant. Moreover, in any event, the difficulty of service of notice on the informant cannot possibly provide any justification for depriving the informant of the opportunity of being heard at the time when the report is considered by the Magistrate."
37 In some judgments of this Court, a view has been advanced [amongst others in Reeta Nag v. State of W.B., Ram Naresh Prasad vs. State of Jharkhand and Randhir Singh Rana vs. State (Delhi Admn] that a Magistrate cannot suo motu direct further investigation under Section 173(8) of the Code or direct investigation into a case on account of the bar contained in Section 167(2) of the Code, and that a Magistrate could direct filing of a charge sheet where the police submits a report that no case had been made out for sending up an accused for trial. The gist of the view taken in these cases is that a Magistrate cannot direct reinvestigation and cannot suo motu direct further investigation. 38 However, having given our considered thought to the principles stated in these judgments, we are of the view that the Magistrate before whom a report under Section 173(2) of the Code is filed, is empowered in law to direct "further investigation" and require police to submit a further or a supplementary report. A threeJudge Bench of this court in Bhagwant Singh has, in no uncertain terms, stated that principle, as aforenoticed.
39 The contrary view taken by the Court in Reeta Nag and Randir Singh do not consider the view of this court expressed in Bhagwant Singh. The decision of this Court in Bhagwant Singh in regard to the issue in hand cannot be termed as an obiter. The ambit and scope of the power of a Magistrate in terms of Section 173 of the Code was squarely debated before that Court and the three Judge Bench concluded as aforenoticed. Similar views having been taken by different Benches of this Court while following Bhagwant Singh, are thus squarely in line with the doctrine of precedent. To some extent are thus squarely in lime with the doctrine of precedent. To some extent, the view expressed in Reeta Nag, Ram Naresh and Randhir Singh, besides being different on facts, would have to be examined in light of the Page 33 of 40 C/SCA/3270/2014 CAV ORDER principle of stare decisis.
40 Having analysed the provisions of the Code and the various judgments as afore indicated, we would state that the following conclusions in regard to the powers of a Magistrate in terms of Section 173(2) read with Section 173(8) and Section 156(3) of the Code:
40.1 The Magistrate has no power to direct "reinvestigation"
or "fresh investigation" (de novo) in the case initiated on the basis of a police report.
40.2 A Magistrate has the power to direct "reinvestigation" or "fresh investigation" after filing of a police report in terms of Section 173(6) of the Code. 40.3 The view expressed in Subpara 40.2 above is in conformity with the principle of law stated in Bhagwant Singh case by a three Judge Bench and thus in conformity with the doctrine of precedent.
40.4 Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2) cannot be construed so restrictively and to deprive the Magistrate such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such power would have to be read into the language of Section 173(8).
40.5 The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the court to the extent that even where the facts of the case and the ends of justice demand, the court can still not direct the investigating agency to conduct further investigation which it could do on its own.
Page 34 of 40
C/SCA/3270/2014 CAV ORDER 40.6 It has been a procedure of propriety that the
police has to seek permission of the court to continue "further investigation" and file supplementary chargesheet. This approach has been approved by this Court in a number of judgments. This as such would support the view that we are taking in the present case.
41 Having discussed the scope of power of the Magistrate under Section 173 of the Code,now we have to examine the kinds of reports that are contemplated under the provisions of the Code and/or as per the judgments of this Court. The first and the foremost document that reaches the jurisdiction of the Magistrate is the first information report. Then, upon completion of the investigation, the police is required to file a report in terms of Section 173(2) of the Code. It will be appropriate to term this report as a primary report, as it is very foundation of the case of the prosecution before the court. It is the record of the case and the documents annexed hereto, which are considered by the court and then the court of the Magistrate is expected to exercise any of the three options afore noticed. Out of the stated options with the court, the jurisdiction it would exercise has to be in strict consonance with the settled principles of law. The power of the Magistrate to direct "further investigation" is a significant power which has to be exercised sparingly, in exceptional cases and to achieve the ends of justice. To provide fair, proper and unquestionable investigation is the obligation of the investigating agency and the court in its supervisory capacity is required to ensure the same. Further investigation conducted under the orders of the court, including that of the Magistrate or by the police of its own accord and, for valid reasons, would lead to the filing of a supplementary report. Such supplementary report shall be dealt with a part of the primary report. This is clear from the fact that the provisions of Sections 173(3) to 173(6) would be applicable to such reports in terms of Section 173(8) of the Code.
42 Both these reports have to be read conjointly and it is the cumulative effect of the reports and the documents annexed thereto to which the court would be expected to apply its mind to determine whether there exist Page 35 of 40 C/SCA/3270/2014 CAV ORDER grounds to presume that the accused has committed the offence. If the answer is in the negative, on the basis of these reports, the court shall discharge an accused in compliance with the provisions of Section 227 of the Code. 9.6 In the present case, considering the above principle laid down by the Apex Court and considering the provisions of PML Act, the petitioner is not justified in submitting that the authority has to wait for passing the order of provisional attachment, till the accused is discharged or a charge is framed against him. It is equally true that the life of provisional attachment order is only 180 days as provided under Section5 of the PML Act itself, which would be subject to the decision of the adjudicating Authority and, therefore, also considering the above aspects, I am of the opinion that, the authority has rightly exercised its powers under Section5 of the PML Act while passing the provisional attachment order.
9.7 In the case of Calcutta Discount Co. Ltd (supra), the Hon'ble Apex Court has held that the High Court can exercise its powers under Article 226 of the Constitution by issuing a writ of certiorari or a writ of prohibition if the court finds that action of the authority is without jurisdiction. As I have held that the authority has not exceeded its jurisdiction, in my view, the principle laid down by the Hon'ble Apex Court in the aforesaid case is not applicable to the present case. Page 36 of 40
C/SCA/3270/2014 CAV ORDER 9.8 Now considering the second contention with regard to
passing of two different orders i.e. order of freezing the account and order of provisional attachment of the property are concerned, they were passed under different provisions of the PML Act. Order of freezing of the account order was passed under Section 17(1)(A) of the PML Act, having life of 180 days under Section 20 of the said Act. The freezing order had already expired in the month of January, 2014 which has ever been challenged by the petitioners. The second order is under Section5 of the PML Act. Therefore, it cannot be said that the authority had passed two different orders of provisional attachment for the same property. Hence, this contention is also negatived. 9.9 As far as third contention is concerned, I am also in agreement with the decision rendered by the Coordinate Bench of this Court in the case of Alive Hospitality And Food Private Limited vs. Union of India and Ors. (supra) (which has been confirmed in the Letters Patent Appeal No.1033 of 2013 with allied matters) by which the learned Single Judge did not entertain the writ petition challenging the provisional attachment and attachment orders on the ground that the matter was at large before the Adjudicating Authority and when alternative remedy of filing appeal before the Tribunal and thereafter before the Hight Court are available to them. Same is the decision in the case of Arun Kumar Mishra vs. Union of India and Ors. (supra) Page 37 of 40 C/SCA/3270/2014 CAV ORDER delivered by the Division Bench of this Court, which is also delivered on the same line.
9.10 As far as the third and fourth contentions regarding the reasons assigned by the authority about transfer or dealing with the property which is not properly recorded as submitted by the petitioner are concerned, I am of the opinion that the guidelines of the Central Government imposing ban on the transfer of the shares etc may be there, but, if the accused transfers or deals with such property in contravention of the said guidelines, the authority would be remedy less and the result would be frustrating the proceedings which have been initiated under the provisions the PML Act. It is not important to consider the say of the petitioner at this stage that he is ready and willing to file an undertaking that he shall not transfer and/or deal with the property. I have also gone through the order of attachment which has been passed by the authority in detail, however, would not like to express any opinion since the matter is pending at large for adjudication under Section8 of the PML Act. Therefore, the third contention is also not accepted.
9.11 I do not like to express any opinion with regard to the allegations made against the original complainant and the authority who has passed the order of provisional attachment since it would be a Page 38 of 40 C/SCA/3270/2014 CAV ORDER question of evidence to assail the mala fides, there are other alternative efficacious remedy available to the petitioners. Hence, the same is not dealt with.
9.12 It is also pertinent to note that while releasing the petitioner on interim bail, the Hon'ble Apex Court has observed as under:
"......................In the circumstances, therefore, we are inclined to grant interim bail to the petitioner Kailash Ramkishan Gupta subject to the following conditions:.
(1) The petitioner furnishes bail bonds in a sum of Rs.25,00,000 (Rupees twenty five lakhs) with two sureties in the like amount to the satisfaction of the court seized of the matter.
(2) The petitioner cooperates with the ongoing investigation by the Directorate of Enforcement in all respects.
(3) The petitioner refrains from tampering with the evidence or prolonging/protracting proceedings in the court in any manner.
Subject to fulfillment of the above conditions, we direct the release of the petitioner-Kailash Ramkishan Gupta on interim bail pending completion of the ongoing investigation by the Directorate of Enforcement.
The Special Leave Petition shall stand over for a period of four months."
10 It appears from the above observations by the Hon'ble Apex Court that the petitioner was expected to cooperate with the ongoing Page 39 of 40 C/SCA/3270/2014 CAV ORDER investigation by the Directorate of Enforcement in all respects. 11 In view of the aforesaid discussion, in my opinion, when the petitioner is facing prosecution under the provisions of PML Act and when the matter is at large before the adjudicating authority and when the order of adjudicating authority is appeallable before the Tribunal as well as before the High Court, the petitions are required to be rejected and therefore the same are hereby rejected. Notice in both the petitions stands discharged. Interim relief granted earlier stands vacated.
(A.J.DESAI, J.) pnnair Date: 21.04.2014 The matter is yet to be heard by the adjudicating authority. Request to extend adinterim relief is hereby refused.
(A.J.DESAI, J.) pnnair Page 40 of 40