Jammu & Kashmir High Court
Raj Kumar Gupta And Ors vs Union Of India And Another on 18 March, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
Serial No. 203
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case : CrlM No. 1670/2023 Reserved on: 03.03.2025
in CRM(M) No. 468/2023 Pronounced on:18.03.2025
Raj Kumar Gupta and ors. ...Petitioner(s)
Through: Mr. Parveen Kapahi, Advocate
VERSUS
Union of India and another
...Respondent(s)
Through: Mr. Vishal Sharma, DSGI
Mr. Surekha Bhat, Advocate
CORAM:
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE.
ORDER
1. Through the medium of the present order, application bearing CrlM No.
1670/2023 seeking a direction upon the respondents to restore the attached
property of the petitioner/applicant is proposed to be disposed of.
2. I have learned counsel for the parties and perused record of the case.
3. It appears that investigation into the offences of money laundering was
initiated against the petitioner/applicant after recording of ECIR/03/JSZO/2020
dated 13.03.2020. The predicate offences were being investigated by CBI
(ACB), Jammu where initially three FIRs for offences under Section 120-B r/w
Section 420 and Section 409 of RPC came to be registered. Fourth FIR No.
RC0592021A005 was registered by CBI, STB Delhi for offences under Section
120-B r/w Section 420 of Jammu and Kashmir Ranbir Penal Code read with
Section 5(2) & 5(1)(d) of Jammu and Kashmir Prevention of Corruption Act.
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4. It also appears that after completing the investigation, the respondents
filed a complaint against the petitioners/applicants alleging commission of
offences under Section 3 read with Section 70 punishable under Section 4 of the
Prevention of Money Laundering, Act (hereinafter referred to as the „PMLA‟),
before the Special Court (Principal Sessions Judge, Jammu). After the process
was issued by the learned Special Judge against the petitioners/applicants in the
aforesaid complaint, the petitioners/applicants challenged the same before this
Court by virtue of the main petition (Writ Petition bearing WP(C) No.
831/2022). Vide interim order dated 26.05.2023 passed in the main writ petition,
the proceedings in the complaint before the learned Special Court have been
ordered to be stayed.
5. During pendency of this petition, the present interim application came to
be filed by the petitioners/applicants. In the application, it has been submitted
that the attached properties including "land measuring 491 Kanals 17 marlas"
situated at Tehsil Pampore District Pulwama have been purchased by the
petitioner/applicant by way of various sale deeds dated 25.11.2006, 23.12.2006,
23.12.2006, 12.05.2007, 07.05.2007, 23.12.2007. 03.05.2007, 03.05.2007,
23.12.2006, 14.05.2007, 04.12.2007, 02.12.2006, 23.12.2006, 04.05.2007,
23.12.2006, 25.11.2006, 14.07.2008, 14.07.2008, 14.07.2008, 14.07.2008,
08.03.2010, and 08.03.2010. It has been further submitted that so far as the other
attached property situated at Kartholi "Land measuring 44 Kanals 10 Marlas
comprising in khasra No 125, 126,126/1, 130 is concerned, a flour mill was in
operation on the said property. It has been submitted that an agreement was
executed with Assistant Director FCS and CA Department Jammu for supply of
wheat, but a communication dated 26.03.2022 has been addressed by the said
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officer to the petitioners/applicants asking them to obtain NOC from the
respondent herein, as the said property has been attached.
6. According to the petitioners/applicants once the proceedings before the
learned Special Court have been stayed, there was no need to obtain NOC from
the respondent. It has also been submitted that the properties in question have
been acquired by the petitioners/applicants prior to the alleged occurrence,
which is subject matter of the impugned complaint, therefore, by no stretch of
reasoning it can be stated that the same form the proceeds of crime as defined in
the provisions contained in Section 3 of PMLA.
7. The respondent in its objections has contended that the properties which
are sought to be released by way of present application have been attached by
the Adjudicating Authority in terms of Section 8 of the PMLA. According to the
respondent, such an order is appealable under Section 26 of the PMLA before
the Appellate Tribunal and thereafter under Section 42 of the PMLA before the
High Court. It has been submitted that one Farooq Ahmad Sheikh claiming a 3rd
party interest in the attached land situated at Pampore has challenged the
confirmation order dated 09.11.2021 in appeal seeking release of the aforesaid
property, but the said appeal is still pending. Thus, according to the respondent,
petitioners/applicants cannot seek release of the property without challenging the
orders of attachment in appropriate proceedings.
8. It is not in dispute that the properties sought to be released have been
attached by the respondent and the provisional order of attachment has been
confirmed by the Adjudicating Authority in terms of Section 8 of the PMLA. An
order confirming attachment of property is appealable in nature in terms of
Section 26 of the PMLA before the Appellate Tribunal and an order made by
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Appellate Tribunal is further appealable before the High Court under Section 42
of the PMLA. The petitioners/applicants without laying any challenge to the
orders of attachment in respect of the attached properties by availing the
statutory remedy available to them have straight away approached this Court
that too by way of a interim application without there being a challenge to the
attachment orders even in the main petition. Unless the petitioners/applicants
challenge the attachment orders by way of appropriate proceedings, the question
of their release cannot be considered by this Court that too in an ancillary
application.
9. Learned counsel for the petitioners/applicants has, in support of his
contentions heavily relied upon a judgment of this Court in case of Dr. Junaid
Vs. Union of India, WP(C) No. 2259/2022 decided on 30.05.2024, wherein this
Court has held that a claimant would be well within his rights to approach
Special Court under PMLA, seeking restoration of attached property. On this
basis, it is being contended that since the proceedings before the learned Special
Court have been stayed by this Court, therefore, the petitioners/applicants have
approached this Court by way of an interim application.
10. I am afraid the ratio laid down by this Court in Dr. Junaid's case (Supra)
would not come to the rescue of the petitioners/applicants, because in the said
case the Court was considering the challenge to the order passed by the
Adjudicating Authority and was exercising its powers under Section 42 of the
PMLA, but in the present case there is no challenge to the order of attachment
laid by the petitioners/applicants, either in the main petition or by way of a
separate appeal under Section 42 of the PMLA. Thus, it would not be open to
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this Court to consider the application of the petitioners/applicants on its merits in
these proceedings.
11. For the foregoing reasons, the instant application is held to be not
maintainable and is dismissed leaving it open to the petitioners/applicants to take
recourse to appropriate remedy available under law.
(Sanjay Dhar)
Judge
JAMMU
18 .03.2025
Bir
