[Cites 9, Cited by 0]
Gauhati High Court
Kumar Sanjit Krishna vs The Directorate Of Enforcement on 8 December, 2025
Author: M. Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/6
GAHC010255322025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A(PMLA)/1/2025
KUMAR SANJIT KRISHNA
SON OF LATE UMA CHARAN BANIA,
UMA TIRTHA, HOUSE NO 51
KACHARI BASTI, ULUBARI,
PALTAN BAZAR,
DISTRICT KAMRUP (M), ASSAM
VERSUS
THE DIRECTORATE OF ENFORCEMENT
GOVT OF INDIA,
GUWAHATI ZONE -1,
MANIK TOWER, 6TH FLOOR, CHRISTAN BASTI, GS ROAD, GUWAHATI -
781005, THROUGH SHRI SHEETI KANTHA DAS DEPUTY DIRECTOR
2:SHRI SHEETI KANTHA DAS
OFFICER IN CHARGE
DEPUTY DIRECTOR
DIRECTORATE OF ENFORCEMENT
GOVT. OF INDIA
GUWAHATI ZONE - 1
MANIK TOWER
6TH FLOOR
CHRISTAN BASTI
GS ROAD
GUWAHATI - 78100
Advocate for the Petitioner : Adrita Bhuyan,
Advocate for the Respondent : SC, ED,
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BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI
ORDER
08.12.2025
(M. Zothankhuma, J)
Ms. A. Bhuyan, learned counsel for the appellant prays for setting aside the
final order dated 13.08.2025 passed by the Appellate Tribunal under SAFEMA,
New Delhi, in FPA-PMLA-1341/GWH/2024, by which the respondent's challenge
to the order dated 27.05.2024, passed by the adjudicating authority, confirming
the provisional attachment order dated 20.12.2023, pertaining to the residential
house of the appellant had been allowed.
2. The appellant's case is that the Enforcement Directorate could not have
attached the residence of the appellant, inasmuch as, the same had been
purchased by the appellant by making payments between 2008 and 2011, vide
payment receipts annexed to the appeal. The said property was registered in
the name of the appellant on 25.06.2019. Though the appellant is alleged to
have received 40 lakhs from the crime proceeds of Rs.6,13,74,440/-, for a crime
that took place between 11.04.2018 to 19.09.2020, the respondents could not
have attached the property of the appellant, which was bought prior to
11.04.2018, as the same was not permissible as per the PMLA Act.
3. The learned counsel for the appellant submits that the same is not
permissible in terms of Section 2(1)(u) read with Section 2(1)(v) of the PMLA
Act, 2002. She also submits that the judgment of the Supreme Court in the case
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of Pavana Dibbur Vs. Directorate of Enforcement , reported in (2023) 15
SCC 91, has clearly held that properties which were bought prior to the crime
are not covered by the definition under Section 2(1)(u) of the PMLA Act, 2002,
inasmuch as, they cannot be said to have any connection with the proceeds of
crime, as the scheduled offence took place after the purchase of the property.
Thus, the appellant's residence could not have been attached.
4. Para 13 of the above judgment states as follows:-
"13. Clause (v) of sub-section (1) of Section 2 PMLA defines "property" to mean
any property or assets of every description, whether corporeal or incorporeal,
movable or immovable, tangible or intangible. To constitute any property as
proceeds of crime, it must be derived or obtained directly or indirectly by any
person as a result of criminal activity relating to a scheduled offence. The
Explanation clarifies that the proceeds of crime include property, not only
derived or obtained from scheduled offence but also any property which may
directly or indirectly be derived or obtained as a result of any criminal activity
relatable to the scheduled offence. Clause (u) also clarifies that even the value
of any such property will also be the proceeds of crime. Thus, the existence of
"proceeds of crime" is sine qua non for the offence under Section 3 PMLA."
5. Section 2(1)(u) and 2(1)(v) of the PMLA Act states as follows:-
"2(1)(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 [or where such property is
taken or held outside the country, then the property equivalent in value held
within the country] [or abroad].
[Explanation.- For the removal of doubts, it is hereby clarified that
"proceeds of crime" include property not only derived or obtained from the
scheduled offence but also any property which may directly or indirectly be
derived or obtained as a result of any criminal activity relatable to the scheduled
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offence.]
"2(1)(v) "property" means any property or assets of every description, whether
corporeal or incorporeal, movable or immovable, tangible or intangible and
includes deeds and instruments evidencing title to, or interest in, such property
or assets, wherever located.
Explanation: For the removal of doubts, it is hereby clarified that the term
"property" includes property of any kind used in the commission of an offence
under this Act or any of the scheduled offences ."
6. The learned counsel for the appellant submits that the learned Tribunal
had upheld the attachment order on the basis of the 3 rd limb of Section 2(1)(u),
even though there was nothing to show that the property had been taken or
held outside India, which allowed for an equivalent value of some other
property to be attached within India. She accordingly submits that unless there
is a finding that the proceeds of the crime are taken or held outside India, a
property equivalent in value cannot be attached in India. In this regard, she has
relied upon the decision of the Kerala High Court in Davy Varghese and Anr.
Vs. Deputy Director, Directorate of Enforcement, Department of
Revenue and Ors., reported in 2024 SCC OnLine Ker 7343 and the decision
of the Andhra Pradesh High Court in Kumar Pappu Singh Vs. Union of
India, Ministry of Finance & Ors., reported in 2021 SCC OnLine AP 983.
7. On considering the stand taken by the appellant's counsel, we find that the
learned Tribunal had dismissed the appeal by holding that even if the proceeds
of crime had vanished and was not available with the person accused, it cannot
be said that properties of equivalent value cannot be attached.
8. On perusal of the reason given by the learned Tribunal for rejecting the
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appeal, we are of the view that the issue needs clarification, inasmuch as, the
question whether the attachment order had been made on the basis of the 2 nd
or 3rd limb of Section 2(1)(u) of the PMLA Act would have to be clarified.
Further, we are of the tentative view that the 2nd limb of Section 2(1)(u) of the
PMLA Act can be applied for attachment of the appellant's residence.
9. Para 14 of the impugned order appears to indicate that the 2 nd limb of
Section 2(1)(u) of the PMLA Act had been applied for attaching the property of
the appellant, though the appellant's case is that the 3 rd limb has been applied.
Further, para 15 of the impugned order states as follows:-
"15. The order of the Tribunal rests on the judgment of the Supreme
Court in the case of Vijay Madanlal Choudhary Vs. Union of India
reported in 2022 SCC OnLine SC 929 and other judgments, apart from the
definition of "proceeds of crime". The issue was elaborately discussed in
the case of Enforcement Directorate v. Axis Bank, reported in 2019
SCC OnLine Del 7854 and was referred in the order passed by this
Tribunal. In the case of Prakash Industries Ltd. v. Directorate of
Enforcement reported in 2022 SCC OnLine Del 2087, same issue was
decided."
10. A perusal of the impugned provisional attachment order dated 20.12.2023
(page 101) does not give any indication with certainty that the 3 rd limb of
Section 2(1)(u) of the PMLA Act had been the basis for issuing the said order.
11. This Court is also of the tentative view that the use of the word
"equivalent" in the 3rd limb of Section 2(1)(u) of the PMLA Act does not mean
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that the said word "equivalent" cannot be used in connection with the 2 nd limb
of Section 2(1)(u) of the PMLA Act.
12. Ms. L. Devi, learned Standing Counsel, Enforcement Directorate prays for
some time to obtain instructions. She shall produce the records on the basis of
which the impugned provisional attachment order had been issued, to find out
the basis on which the said order had been issued. Whether it had been issued
on the basis of the 2nd limb or 3rd limb of Section 2(1)(u) of the PMLA Act.
13. List the matter on 07.01.2026.
14. Registry to reflect the name of Dr. P. Agarwal and Ms. A. Bhuyan, learned
counsels in the cause list.
JUDGE JUDGE
Comparing Assistant
