Soumyendra Nath Banerjee vs Union Of India & Ors
2023 Latest Caselaw 2972 Cal

27.04.2023
Ct. No.1
Item No.11
RP/KS


                             M.A.T. 636 of 2023
                                    With
                            IA No.CAN 1 of 2023
                         Soumyendra Nath Banerjee
                                  -Vs.-
                            Union of India & Ors.



                  Ms. Reshmi Ghosh
                  Mr. Soumya Sankar Chini
                                            .....For the Appellant

                  Mr. Firoze Edulji
                  Ms. Anamika Pandey
                                    ..For Enforcement Directorate




             1.

This intra-Court appeal is directed against the

order dated 27th March, 2023 passed by the

learned Single Bench in WPA 11161 of 2022.

In the said writ petition the appellant had

challenged the order passed under Section 5(1)

of Prevention of Money Laundering Act, 2002

(in short "PMLA Act") dated 29th October, 2021

by which an order of provisional attachment

has been made against the appellant. The

contention of the appellant was that the

provisional attachment order passed under

Section 5(1) of PMLA Act losses its efficacy on

expiry of 180 days period. It is not in dispute

that during the pendency of the writ petition

order under Section 8 of PMLA Act was passed

on 25th July, 2022 making the provisional

attachment absolute and as against the said

order the appellant has filed an appeal before

the Appellate Tribunal under Section 25 of the

PMLA Act. The question would be as to

whether in the facts and circumstances, a writ

petition can be entertained or not. Learned

advocate for the appellant would place reliance

upon a decision of this Court passed by the

learned Single Bench dated 27th June, 2022 in

WPA 9699 of 2022 and submits that in the said

order the learned writ Court had quashed the

provisional attachment on the ground that it

has lost its efficacy due to lapse of time i.e. 180

days. It is submitted that the Directorate of

Enforcement preferred an appeal against the

said order in MAT 1222 of 2022 and the

Hon'ble Division Bench by a judgment and

order dated 12th December, 2022 dismissed the

appeal filed by the Directorate of Enforcement

and affirmed the order passed by the learned

Single Bench.

2. In our considered view, the grounds which have

been canvassed in the writ petition and

accepted by the learned writ Court could very

well be canvassed by the appellant before the

Appellate Tribunal. The order under Section 8

of PMLA Act has been passed on 22nd July,

2022 and the appellant has already filed an

appeal challenging the said order before the

Appellate Tribunal. Therefore, it is appropriate

for the appellant to canvass all grounds before

the Appellate Tribunal including the ground

that the Adjudicating Authority could not have

passed the order under Section 8 of the PMLA

Act after expiry of the period of 180 days as the

order of provisional attachment made under

Section 5(1) loses its efficacy on expiry of 180

days. One more reason which arises in our

mind for refusing to interfere at this stage of

the proceeding is that the computation of the

period of 180 days, it is not purely a question of

law. It is a mixed question of facts and law

and, therefore, the department is required to be

heard in the matter. Furthermore, the

Adjudicating Authority has passed the order

under Section 8 of PMLA Act on 25th July, 2022

after hearing the parties and during the hearing

the appellant is aggrieved by the fact that his

reply submission was not considered by the

Adjudicating Authority and the order under

Section 8 has been passed with utmost haste.

Therefore, all these grounds which are not

being canvassed before this Bench are to be

canvassed before the Appellate Tribunal and

the Appellate Tribunal will adjudicate the same

in accordance with law. The appellant can pray

before the Appellate Tribunal to decide the

limitation issue first amongst all other issues.

3. With the aforesaid observations, the appeal and

the connected application stand disposed of.

(T. S. SIVAGNANAM) ACTING CHIEF JUSTICE

(HIRANMAY BHATTACHARYYA, J.)