Jagdish Singh Raghuvanshi @ ... vs State Of Jharkhand
2022 Latest Caselaw 1888 Jhar

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             IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P.(Cr.) No.162 of 2021

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Jagdish Singh Raghuvanshi @ Jagdish Singh, s/o late Shivadan Singh, aged about 80 years, r/o M-28 Bariatu Housing Colony, P.O. and PS Bariatu, District Ranchi ..... Petitioner

-- Versus --

1.State of Jharkhand

2.Director, Directorate of Enforcement, Ministry of Finance, Department of Revenue, New Delhi, PO, PS and District-New Delhi

3.Assistant Director (PMLA) Directorate of Enforcement, Ministry of Finance Zonal Office, P.P.Compound, PO and PS -Hindpiri, District-Ranchi

4.Smt. Laxmi Singh Raghuvansi @ Laxmi Singh, w/o Jagdish Singh Raghuvansi

5.Ravindra Singh, s/o Jagdish Singh Raghuvansi Respondent no.4 and 5 both resident of Sri Ram Residency, Edalhatu, PO Morabadi, PS -Bariatu, District-Ranchi

6.Smt. Tara Devi, W/o late Pawan Kumar Singh

7.Kumar Pranav, s/o late Pawan Kumar Singh

8.Golden Singh, d/o late Pawan Kumar Singh Respondent no.6 to 8 resident of Harihar Singh Road, PO- Morahbadi, PS -Bariatu, District-Ranchi ...... Respondents

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. Kalyan Roy, Sr. Advocate Mr. Sidhartha Roy, Advocate For the State :- Mr. P.C.Sinha, A.C. to G.A.-III For the E.D. :- Mr. Amit Kumar Das, Advocate Mr.Shivam Utkarsh Sahay, Advocate Mr. Sahay Gaurav Piyush, Advocate For the Resp.Nos.6-8:Mr. Rahul Kumar, Advocate Miss Apoorva Singh, Advocate

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15/10.05.2022 Heard Mr. Kalyan Roy, the learned Senior counsel assisted

by Mr. Sidhartha Roy, the learned vice counsel appearing on behalf of the

petitioner, Mr. Amit Kumar Das, the learned counsel assisted by

Mr. Shivam Utkarsh Sahay, the learned vice counsel appearing on behalf

of the respondent nos.2 and 3 (Enforcement Directorate) and Mr. Rahul

Kumar, the learned counsel appearing on behalf of the respondent nos.6

to 8.

2. By order dated 29.11.2021 the notices were issued upon

the respondent nos.5 to 9 (now, respondent nos.4 to 8). The respondent

no.5 has been served through her son. The respondent no.6 has been

served personally. The petitioner has filed supplementary affidavit stating

therein that the petitioner made personal service of notice upon the

respondent nos.5 and 6 (now, respondent nos.4 and 5) and both are

residing together. Thereafter, this matter was adjourned to 28.04.2022

and 09.05.2022, however, the respondent nos.5 and 6 (now, 4 and 5)

have chosen not to appear in the Court. Mr. Rahul Kumar, the learned

counsel has appeared for respondent nos.6 to 8.

3. This petition has been filed for quashing the eviction notice

dated 08.06.2021 issued by the respondent no.5 whereby the petitioner

has been directed to vacate the premises being holding no.2154/A/228,

MIG House No.M-28 situated at Mauza Bariatu Booty Road, Ranchi within

10 days of receipt of the notice.

4. Mr. Kalyan Roy, the learned counsel appearing on

behalf of the petitioner submits that by virtue of an agreement this

petitioner has come into possession of the property in question from the

year 1991 itself and the petitioner has purchased the property in

question by a sale deed dated 04.8.1993 in the name of his wife. He

submits that due to family dispute the wife of this petitioner has deserted

and thereafter she sold the property in question to one Pawan Kumar

Singh by a sale deed dated 08.9.2005. He submits that said Pawan

Kumar Singh is an accused in a case of money laundering and was facing

the complaint with regard to ECIR/02/PAT./2012. He further submits that

pursuant to that proceeding, the petitioner has been directed to vacate

the premises in question. He submits that this notice has been issued

without hearing the petitioner. He further contends that the provisional

attachment order was passed in view of section 6 on 05.02.2021 in

Original Complaint No.1344/2020 and in that complaint, by order dated

05.02.2021 provisional order of attachment was passed and in provisional

attachment order also the petitioner was not heard. He further submits

that for the property in question Title Suit being Title Suit No.212/2005

has been filed by this petitioner which is still pending. He further submits

that in the suit, the respondents are not appearing. He further advanced

his argument by way of referring section 8 of the Prevention of Money-

Laundering Act, 2002 [hereinafter to be referred to as 'the Act'] and

submits that how the cases arising under the said statute are required to

be adjudicated is prescribed therein. He submits that this section clearly

provides that any person against whom any order is being passed is

required to be heard and ignoring this provision, the order has been

passed against the petitioner. He further draws the attention of the Court

to Rule-5 of the Prevention of Money Laundering (Taking Possession of

Attached or Frozen Properties Confirmed by the Adjudicating Authority),

Rules, 2013 [hereinafter to be referred to as 'the Rules'] and submits that

the manner of taking possession of the immovable property is made in

the Rule-5. He submits that how the notice is required to be served is

prescribed under the Rule 6 of the said Rules and also the Form-I and II

is prescribed therein which is the mode of notice. He submits that all

these statutory provisions have not been followed and the petitioner has

already been evicted. He further submits that this matter was taken up

on 28.06.2021, however, inadvertently the notice was not served upon

the learned counsel for the Enforcement Directorate and the notice was

served upon the learned counsel for the Union of India. This matter was

adjourned on that day as it was submitted on that day by the learned

counsel for the Enforcement Directorate that the notice has not been

served. He submits that on the same day, the notice was served upon

the learned counsel for the Enforcement Directorate and thereafter the

request was also made to the concerned authority not to take any

coercive steps, however, the petitioner has been evicted and the

possession of the property has been taken. He submits that so far section

26 of the said Act is concerned, wherein provision of appeal is made that

is not a bar to entertain the writ petition if the principles of natural justice

is not followed. To buttress his this argument, he relied in the case of

"Whirlpool Corp.v. Registrar of Trade Marks" reported in (1998) 8 SCC

pg.1. By relying on this judgment, he submits that this petition is

maintainable and this Court is competent to pass the order if the

principles of natural justice is not followed.

5. Per contra, Mr. Amit Kumar Das, the learned counsel

appearing on behalf of the Enforcement Directorate submits that eviction

notice was issued on 05.04.2021 by speed post to the concerned party

and given 10 days opportunity to vacate the premises for taking

possession of immovable property under sub-section (4) of section 8 of

the said Act and the same has been delivered on 12.04.2021. He submits

that after lapse of 10 days in light of the notice, the possession of

immovable property has been taken. It is further submitted that during

course of taking possession of the property in question it was found that

the petitioner was unauthorisedly occupied the premises being holding

no.2154/A/228, MIG House No.M-28 situated at Mauza Bariatu Booty

Road, Ranchi. He submits that the property in question is in the name of

late Pawan Kumar Singh, son of Shiv Daras Singh, erstwhile Director of

M/s Classic Coal Construction Pvt. Ltd.He further submits that respondent

nos.7 to 9 (now, 6 to 8) are the legal heirs and successors of late Pawan

Kumar Singh. He submits that this Pawan Kumar Singh has purchased

the property from the wife of this petitioner. He further submits that

another notice was issued on 08.09.2005 which was served on

10.06.2021 in view of the fact that the property in question was not

vacated within 10 days of the first notice. He further submits that after

providing opportunity and in the light of section 8(4) of the said Act read

with Rule 5 (1) of the said Rules the property in question was taken on

28.06.2021 and the notice was affixed properly on the wall and the gate

of the premises and the Panchnama to that effect has been prepared and

the petitioner was also signed on the said Panchnama. He submits that

the petitioner is having alternative remedy of appeal under section 26 of

the said Act and in the light of section 9 of the said Act, to approach the

Special court where the proceeding is still pending. He submits that for

this disputed question of fact, the remedy is there to the petitioner to file

appropriate petition in the light of the statutory provision under the said

Act. He relied in the case of "Smt. Soodamani Dorai v. The Joint Director

of Enforcement (PMLA), Directorate of Enforcement and Ors." reported in

2018 SC Online Madras 3138. Paragraph nos. 60, 67, 68 and 69 of the

said judgment are quoted hereinbelow:

"60. Though the writ petitioners have raised that the alleged proceeds of crime and the offences committed by the writ petitioners were prior to the amendment issued in the Prevention of Money Laundering Act, 2002, this Court is of an opinion that such contentions are untenable in view of the fact that the provisions of the Prevention of Money Laundering Act, 2002 categorically enumerates that the 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. This apart, Section 8 also contemplates offence under Section 3 or is in possession of proceeds of crime. Thus, it is not as if the date of occurrence which is relevant. If the proceeds of crime is not the possession of the alleged offenders, then also the authorities under the Act, are empowered to register a case under the provisions of the Prevention of Money Laundering Act, 2002.

67. In view of the fact that the compex facts and circumstances raised in these writ petitions, cannot be adjudicated by this Court at this stage, since the writ petitioners have challenged the very show cause notice and the attachment order passed. The writ petitioners are bound to submit their statements, documents to the respondents to establish their innocence at the first instance, so as to avoid further proceedings under the provisions of the Prevention of Money Laundering Act, 2002. Equally, the respondents are

also bound to follow the procedures contemplated under the Act, by providing a reasonable opportunity to the writ petitioners to submit their defence and establish their case before the Competent Authorities.

68. The judgments cited by the learned counsel for the writ petitioners with reference to the merits of the case deserves no consideration in view of the fact that this Court has considered the ground of maintainability of the writ petitions with reference to the PMLA Act and with reference to the stage in which the present writ petitions are filed. Thus, all those judgments referred by the learned counsel for the writ petitioners have no relevance with reference to the grounds considered in the present writ petitions.

69. Accordingly, this Court has no hesitation in coming to the conclusion that the present writ petitions are not only premature and the compex facts and circumstances now raised by the writ petitioners, cannot be adjudicated in view of the fact that the writ petitioners have not exhausted the appeal remedies provided under the Statutes and not participated in the administrative procedures contemplated under the provisions of the Prevention of Money Laundering Act, 2002, establishing their innocence or otherwise before the Competent Authorities. Such administrative procedures contemplated cannot be construed as akin to that of the criminal proceedings initiated under the Penal Code, 1860."

6. Mr. Das, the learned counsel for the Enforcement

Directorate further submitted that the Banker of the said coal company

has already moved before the Appellate Tribunal under section 26 of the

said Act. It has further been submitted by Mr. Das, the learned counsel

appearing for the E.D. that sub-section 7 of Section 8 is another remedy

to the petitioner.

7. On the other hand, Mr. Rahul Kumar, the learned counsel

appearing for the respondent nos.6 to 8 raised the question of locus of

this petitioner for filing a writ petition. He submits that the petitioner is

an stranger and respondent nos.6 to 8 are the legal heirs and successors

of late Pawan Kumar Singh, who has purchased the property in question.

He relied on the same section of the said Act i.e. sections 9 and 26 of the

said Act and submits that this petition is fit to be dismissed.

8. In the light of the aforesaid submission of the learned

counsels appearing on behalf of the parties, this Court has gone through

the materials on record. It is an admitted fact that the petitioner is not

the owner of the property. The property in question was in the name of

the wife of the petitioner who has sold the property to one Pawan Kumar

Singh in the year 2005. Pawan Kumar Singh was the accused in

ECIR/02/PAT./2012 and he was the owner of M/s Classic Coal

Construction Pvt. Ltd. and with regard to that coal company, Pawan

Kumar Singh was facing the money laundering case. Thus, it is an

admitted that the property in question was in the name of Pawan Kumar

Singh, however, the petitioner was continuing and living in the property

in question. It is section 5 of the said Act, which provides for procedure

for attachment of the property involved in money laundering. In section 8

of the said Act, the procedure for adjudication is there, which is read as

under:

"8. Adjudication.--(1) On receipt of a complaint under sub-section (5) of Section 5, or applications made under sub-section (4) of Section 17 or under sub-section (10) of Section 18, if the Adjudicating Authority has reason to believe that any person has committed an [offence under Section 3 or is in possession of proceeds of crime], it 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 sub-section (1) of Section 5, or, seized [or frozen] under Section 17 or Section 18, the evidence on which he relies and other relevant information and particulars, and to show cause why all or any of such properties should not be declared to be the properties involved in money-laundering and confiscated by the Central Government:

Provided that where a notice under this sub-section specifies any property as being held by a person on behalf of any other person, a copy of such notice shall also be served upon such other person:

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 sub-section (1);

(b) hearing the aggrieved person and the Director or any other officer authorised 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 sub-section (1) are involved in money-laundering:

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 money-laundering, he shall, by an order in writing, confirm the attachment of the property made under sub-section (1) of Section 5 or retention of property or [record seized or frozen under Section 17 or Section 18 and record a finding to that effect, whereupon such attachment or retention or freezing of the seized or frozen property] or record shall--

(a) continue during [investigation for a period not exceeding [three hundred and sixty-five days] or] 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 alter an order of confiscation is passed under sub-section (5) or sub-section (7) of Section 8 or Section 58-B or sub-section (2-A) of Section 60 by the [Special Court].] [Explanation.--For the purposes of computing the period of three hundred and sixty-five days under clause (a), the period during which the investigation is stayed by any court under any law for the time being in force shall be excluded.] (4) Where the provisional order of attachment made under sub-section (1) of Section 5 has been confirmed under sub-section (3), the Director or any other officer authorised by him in this behalf shall forthwith take the [possession of the property attached under Section 5 or frozen under sub- section (1-A) 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 sub-section (1-A) of Section 17, 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 money-laundering shall stand confiscated to the Central Government. (6) Where on conclusion of a trail 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 reason 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 sub-section

(3) of Section 8, pass appropriate orders regarding confiscation or release of the property, as the case may be, involved in the offences of money-laundering after having regard to the material before it.] [(8) Where a property stands confiscated to the Central Government under sub-section (5), the Special Court, in such manner as may be prescribed, may also direct the Central Government to restore such confiscated property or part thereof of a claimant with a legitimate interest in the property, who may have suffered a quantifiable loss as a result of the offence of money laundering:

Provided that the Special Court shall not consider such claim unless it is satisfied that the claimant has acted in good faith and has suffered the loss despite having taken all reasonable precautions and is not involved in the offence of money laundering.] [Provided further that the Special Court may, if it thinks fit, consider the claim of the claimant for the purposes of restoration of such properties during the trial of the case in such manner as may be prescribed.]"

9. On perusal of this section, it is crystal clear that if the

adjudicating authority is having reason to believe that any person has

committed the offence under section 3 or in possession of the proceeds

of crime as on the date of registration of the case is made out, the

competent authority is empowered to register the case under the

provisions of the said Act. The procedure prescribed herein also speaks

of issuing notice to the person and after hearing to pass the order. Rule 5

and 6 and also Form-1 and Form-2 are not in dispute which was the

mode of notice wherein it has been prescribed the manner to take

possession of immovable property and mode of service of notice and the

format of notice has also been provided in Form-1 and Form-2. In the

case in hand, the disputed questions of fact are involved. The petitioner

has already filed a title suit with regard to the property in question which

is still pending. The learned counsel for the Enforcement Directorate has

contended that notices have been issued which has been disputed by the

petitioner.

10. In the facts and the background of this case it appears that

the petitioner is third party and if third party is involved, in the statute

care has been taken to adjudicate the same in light of section 9 of the

said Act and the Special court is empowered to exercise that. Section 26

of the Act also speaks to file appeal if any person is aggrieved by the

order made by the adjudicating authority under the Act. Thus, there are

two remedies available to the petitioner under the Act. In light of sub-

section 7 of section 8 of the said Act if any person is absconder and has

left for his heavenly abode, the Director or any aggrieved person is

entitled to move before the Special court and section 9 of the said Act

may not have come into play at this stage, however, looking to sub-

section 7 of section 8 of the said Act it appears that the petitioner is

having remedy to approach the Special court wherein it has been

prescribed that a person claiming to be entitled to put in possession of a

property in respect of which an order has been passed under sub-section

3 of section 8 regarding confiscation or release of the property, as the

case may be, involved in the offence of money laundering, can move

before the Special court. Subsequently, one I.A. has been filed for

restoration of possession and in view of that I.A. also, the petitioner is

having right to move before the Special Court by way of filing appropriate

petition for restoration of the property in question and the Special court

will have the first jurisdiction. The petitioner can put his case effectively

before the Special Court by way of showing his bonafide. It is the order

of confirming the attachment has already been passed and the premises

in question has already been vacated and sealed by the E.D. and the

Special court is already in seisin of the matter. The parties are having

remedy to put their case more effectively before the Special court. So far

as the argument of Mr. Kalyan Roy, the learned counsel for the petitioner

is concerned with regard to violation of principle of natural justice, that is

not in dispute. Further, Section 26 of the Act also speaks that any person

can file appeal before the Appellate Tribunal. So far the judgment relied

by Mr. Kalyan Roy, the learned counsel appearing on behalf of the

petitioner with regard to principles of natural justice is not in dispute if

the court comes to the conclusion that principles of natural justice has

been violated alternative remedy is not a bar to entertain the writ

petition. However, in the case in hand the statute is very clear and the

property in question taken over by the Enforcement Directorate. Even for

the sake of argument, if this Court comes to the conclusion that violation

of principle of natural justice is there and the matter is remitted back to

the authority concerned, it will be a futile exercise as the property in

question has already been seized.

11. Accordingly, for the reasons and the analysis as above,

this Court is not inclined to quash the notice dated 08.06.2021,

and accordingly, W.P.(Cr.) No.162 of 2021 is dismissed.

12. It is open to the petitioner to avail remedy under the law.

13. If any petition is filed before the appropriate court,

the pendency of this writ petition shall be taken into consideration for the

purpose of limitation if it arises.

14. I.A. No.2874 of 2021 stands disposed of.

( Sanjay Kumar Dwivedi, J.)

SI/;