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2012 DIGILAW 141 (JK)

Nabla Begum v. Union of India & Ors.

2012-04-03

MOHAMMAD YAQOOB MIR

body2012
1. Petitioner seeks quashment of order (Corrigendum to Provisional Attachment Order No. 03/CHD/2011 dated 03.10.2011) dated 25th of October, 2011, issued by respondent No. 3 and also seeks mandamus so as to command the respondents not to cause any sort of interference with the peaceful enjoyment of the petitioner over the property i.e. two storeyed residential house situated at Abi Guzar Srinagar. 2. Learned counsel for the respondents at the very outset questioned maintainability of the writ petition by stating that the petitioner has an efficacious remedy available under the Prevention of Money Laundering Act (hereinafter referred to as the Act). 3. The power under Article 226 of the Constitution of India is wide enough but the said power is regulated by the self imposed reasonable restrictions. One such restriction includes availability of equally efficacious remedy to the aggrieved party. 4. Precise background of the case is that the respondent No. 3 authorized by the respondent No. 1 under sub-section (1) of Section 5 of the Act read with Notification No. GSR.441(E) dated 1st July, 2005, has passed the provisional attachment order No. 03/CHD/2011. In the said order of attachment, amongst other circumstances, it is mentioned that on the scrutiny of the documents collected during investigation it has surfaced that Shri Firdous Ahmad Shah — son of the petitioner, is a prominent businessmen of Srinagar having a Current Bank Account with J&K Bank, had received amount of INK 01 lakh from Shri Javed Iqbal of Italy on the pretext that the said amount was sent by his friend Shri Aijaz Ahmad of POK. In the case registered in Police Station, Kralkhud it has been established that, amongst others, said Javed Iqbal was also involved in anti national activities. The transactions undertaken would show that the transactions are nothing but proceeds of crime which was laundered through bank accounts including that of Firdous Ahmad Shah. The amount of INK 01 Lakh lying in Account No. 0005020100000580 with J&K Bank Residency Road Branch Srinagar held in the name of M/S Firdous Medical Agency are provisionally attached under sub-section (1) of Section 5 of the Act for a period of 150 days. 5. The amount of INK 01 Lakh lying in Account No. 0005020100000580 with J&K Bank Residency Road Branch Srinagar held in the name of M/S Firdous Medical Agency are provisionally attached under sub-section (1) of Section 5 of the Act for a period of 150 days. 5. Subsequently a corrigendum has been issued to the provisional attachment order where-under it has been noticed that the J&K Bank where the amount of INR 01 Lakh was received had extended cash credit facility to the tune of INR 07.75 lakhs to M/S Firdous Medical Agency during the relevant period of October-November, 2009 on the basis of the underlying security of immovable property i.e. house property, in the name of Nabla Begum, mother of Firdous Ahmad shah of M/S Firdous Medical Agency. Noticing various features in the said order of corrigendum, the respondent No. 3 has passed the order of provisional attachment and has been directed not to remove, part with or otherwise deal with such properties as detailed in the schedule and in the schedule property as shown is the two storeyed building of the petitioner. 6. Dissatisfied with the corrigendum instant petition has been filed. 7. Learned counsel for the petitioner would contend that the petitioner is not in any manner connected with the commission of offence. While referring to Section 3 of the Act tried to project that action can be only against a person who is directly or indirectly connected with the proceeds of crime. Then also referred to Section 5 of the Act as to what type of property can be attached, therefore, contended that the order as against the petitioner is without jurisdiction so liable to be quashed. 8. Opposing the contention, learned counsel for the respondents would contend that the attachment is simply provisional and it is open for the petitioner as well as others to show cause before the authority as is permissible under Section 8 of the Act and if the petitioner is able to satisfy the authority, the provisional attachment can be withdrawn. Additionally in case order will be against the petitioner, she has a right of appeal as envisaged under Section 26 of the Act and then as against the order of Appellate Tribunal appeal is prescribed under Section 42 of the Act to be filed before the High Court, therefore, invoking the writ powers is uncalled for. 9. Considered. 10. Additionally in case order will be against the petitioner, she has a right of appeal as envisaged under Section 26 of the Act and then as against the order of Appellate Tribunal appeal is prescribed under Section 42 of the Act to be filed before the High Court, therefore, invoking the writ powers is uncalled for. 9. Considered. 10. The submission of the learned counsel for the respondents has a prevailing force. It shall not be appropriate to comment as to what is the connection of the petitioner, in the background of Section 3 of the Act, with the proceeds of the crime. The authorities have powers under the act to proceed and equally party aggrieved has a right to show innocence and the provision itself extends protection to the innocent, so it is for the party aggrieved to agitate before the concerned authorities as appointed under the Act. To entertain writ petition would amount to scuttling the entire process as is validly to be undertaken under the Act. Petitioner has every right to appear before the adjudicatory authority under Section 8 of the Act and to project her innocence and the authority, after considering the cause as shall be projected, has to pass appropriate orders in-keeping with the cannons of justice and in case of any dissatisfaction with the order, party aggrieved has a right of appeal before the Appellate Tribunal and then again a right of appeal before the High Court against the order of Appellate Tribunal. When such efficacious remedy is available, petitioner has been ill advised to file the instant petition. 11. It is also to be made clear that in terms of Section 5(4) of the Act the person interested cannot be prevented from enjoyment of immovable property attached under sub-section (1), therefore, there is no imminent threat as against the right of the petitioner to enjoy immovable property provisionally attached. 12. The writ petition, for the afore-stated reasons, is dismissed along with connected CMP. Interim direction dated 05.11.2011 shall cease to be in operation.