Himachal Pradesh High Court

Decided On: 30.08.2024 vs Brig. (Retd) Jitender Kumar Narang on 30 August, 2024

Author: Ajay Mohan Goel

Bench: Ajay Mohan Goel

                                                                       2024:HHC:7715

         IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                     CA (PMLA) No.01 of 2020
                                                     Decided on: 30.08.2024
    Union of India                                          ... Appellant.
                       Versus




                                                                          .

    Brig. (Retd) Jitender Kumar Narang
    & others                                                      ... Respondents
    Coram





    Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
    Whether approved for reporting?1Yes
    ____________________________________________________              _
    For the appellant       :     Mr. Balram Sharma, Deputy Solicitor
                                  General of India, alongwith Mr. Ajeet





                                  Singh Saklani, Stand Counsel.
    For the respondents             :        M/s Shri Singh, Shradha Karol,
                                             Abhinav, Vaibhav Singh Chauhan
                                             and Aastha Kohli, Advocates.

    Ajay Mohan Goel, Judge (Oral)

By way of this appeal, the appellant has assailed the

judgment passed by learned Appellate Tribunal for SAFEMA, FEMA,

NDPS, PMLA & PBPT Act at New Delhi in MP- PMLA-2767/

CHD/2016 (Ex-parte Stay) FPA-PMLA-1458/CHD/2016, titled Brig.

(Retd.) Jitender Kumar Narang & Others vs. The Deputy Director,

Directorate of Enforcement, Chandigarh, dated 10.04.2019.

2. Brief facts necessary for the adjudication of this appeal

are that proceedings were initiated against the respondents herein

for disproportionate assets by the Central Bureau of Investigation.

On the basis of FIR that was registered on 18.10.2012, the

properties, detailes whereof are given in Para-3 of the aforesaid

Whether reporters of the local papers may be allowed to see the judgment?

2024:HHC:7715 judgment, owned by the respondents herein were provisionally

ordered to be attached by the appellant vide provisional attachment

order, i.e. the order which was challenged before learned Appellate

Tribunal.

3. Feeling aggrieved, the respondents herein preferred an

appeal under Section 26 of the Prevention of Money-Laundering Act,

2002 against the provisional attachment order dated 15.07.2016, in

Original Complaint No.564 of 2014. Learned Appellate Tribunal

disposed of the appeal filed by the respondents vide judgment dated

10.04.2019 in the following terms:-

"26. Without expressing any opinion on merit, the

impugned order is modified to the following extent:-

a) That as far as account maintained by Smt. Minni Narang and Sumant Narang (A/c. No. 0181012002249 of

Kotak Mahindra Bank, Sector-18, NOIDA balance amount as Rs.5,66,604.74) and also account maintained by Smt.

Minni Narang and Sh. J.K. Narang (account no.

00431000084976 of HDFC Bank, Saket, New Delhi

balance amount as 14,59,940.54) totalling Rs. 20,26,545.28, the said amount be appropriate by the

respondent. Without prejudice, the FDR be prepared initially for a period of two years in the nationalized bank till the date of final judgment passed by the Special Court. It can also be reviewed for further period in case the final order is not passed.

b) With regard to the property bearing no.C-80, Sector 47,

2024:HHC:7715 NOIDA(U.P.), with prejudice, the attachment of the said property shall continue till final judgment is passed by the Special Court. However, the attachment will continue and the appellant shall not dispose of the said property till the

final order is passed after recording the evidence.

c) The observation made by the Adjudicating Authority in the conclusion part of the impugned order shall not be

used against the appellants. The Special Court even otherwise is to pass the final order after recording the evidence without having any influence of the impugned

order dated 15.7.2016."

4. After the judgment was passed by learned Tribunal, a

Review Petition was preferred before it by the respondents herein

and in terms of the order that was passed in the Review Petition, the

judgment passed by learned Tribunal was clarified as under:-

"Reply has been filed by the respondent. After hearing of both the parties, the prayer made in the review application u/s 35 (2)(f) is allowed by clarifying that the

respondent shall not be entitled to take any coercive steps

against the appellant with regard to residential property owned by the appellant which was the actual intent of

the order till the Special Court shall not pass final order after trial. MP is accordingly disposed of."

5. Feeling aggrieved, the appellant/complainant has filed

this appeal.

6. I have heard learned Deputy Solicitor General of India

2024:HHC:7715 as well as learned counsel for the respondents and have also

carefully perused the pleadings as well as record appended

therewith including the judgment passed by learned Tribunal and

the order passed by it in review.

7. Learned Deputy Solicitor General of India has argued

that the order passed by learned Tribunal, in terms whereof, the

respondents herein were allowed to enjoy the attached of immovable

property is not sustainable in the eyes of law, because once the

property stands attached, by no stretch of imagination, the accused

can be permitted to enjoy the same. On this short count, he prays

that the order passed by learned Tribunal is liable to be quashed

and set aside. No other point was urged.

8. On the other hand, learned counsel for the respondents

submitted that there is no infirmity in the judgment passed by

learned Tribunal, in terms whereof, the respondents have been

permitted to continue to use the immovable property, as the order is

not only in-consonance with the statutory provisions, but there are

pronouncements of Hon'ble Supreme Court of India to this effect

that, confirmation of attachment of immovable property, does not

debar the owner of the property to use the same till final

confiscation order thereof is passed in accordance with law. Learned

counsel has referred to the judgment of Hon'ble Supreme Court of

2024:HHC:7715 India, in Vinay Madanlal Choudhary and Others vs. Union of India

and Others, 2022 SCC OnLine SC 929. Para-304 thereof reads as

under:-

.

"304. The other grievance of the petitioners is in reference to the stipulation in sub-section (4) of Section 8 providing for taking possession of the property. This provision ought

to be invoked only in exceptional situation keeping in mind the peculiar facts of the case. In that, merely because the provisional attachment order passed under

Section 5(1) is confirmed, it does not follow that the property stands confiscated; and until an order of confiscation is formally passed, there is no reason to

hasten the process of taking possession of such property.

The principle set out in Section 5(4) of the 2002 Act needs to be extended even after confirmation of provisional attachment order until a formal confiscation order is

passed. Section 5(4) clearly states that nothing in Section 5 including the order of provisional attachment shall

prevent the person interested in the enjoyment of immovable property attached under sub-section (1) from

such enjoyment. The need to take possession of the attached property would arise only for giving effect to the

order of confiscation. This is also because sub-section (6) of Section 8 postulates that where on conclusion of a trial under the 2002 Act which is obviously in respect of offence of money-laundering, 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

2024:HHC:7715 order release of such property to the person entitled to receive it. Once the possession of the property is taken in terms of sub- section (4) and the finding in favour of the person is rendered by the Special Court thereafter and

.

during the interregnum if the property changes hands and title vest in some third party, it would result in civil consequences even to third party. That is certainly

avoidable unless it is absolutely necessary in the peculiar facts of a particular case so as to invoke the option available under sub-section (4) of Section 8."

9. In the considered view of this Court, as learned Tribunal

only ordered the use of the immovable property which was attached

till the final order was passed and as said judgment is in line with

the pronouncements on the issue by Hon'ble Supreme Court of

India, the judgment passed by learned Tribunal calls for no

interference. This Court is making this observation for the reason

that Hon'ble Supreme Court in Vinay Madanlal Choudhary and

Others vs. Union of India and Others, 2022 SCC OnLine SC 929, has

clearly laid down that the principle set out in Section 5 (4) of the

PMLA Act, 2002 needs to be extended even after confirmation of

provisional attachment order until a formal confiscation order is

passed and nothing in Section 5 of the Act including the order of