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2025 DIGILAW 229 (MP)

Deepak Asai v. Union of India

2025-03-27

SANJAY DWIVEDI

body2025
ORDER 1. The counsel for the petitioners is heard on the question of admission and also on interim relief. 2. This petition is under section 528 of Bharatiya Nagrik Suraksha Sanhita, 2023 (BNSS) seeking quashing of provisional attachment order bearing No.02/2025 dated 30.1.2025. 3. Learned senior counsel appearing for the petitioners has submitted that the office of respondent No.2 has passed a provision attachment order which is impugned in this petition and quashing of the same is being sought for by the petitioners mainly on the ground that the order passed by the authority is beyond jurisdiction attaching the properties mentioned in Schedule-I, II and III, particularly the properties mentioned in Schedule-C because the said properties do not fall within the definition of “proceeds of crime” as defined under the provisions of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as the ‘PMLA Act, 2002’). Shri Datt has further submitted that the order has been passed on 30.1.2025 attaching the properties which are related to the retiral dues of petitioner No.1 and attaching the same is in contravention of section 11 of Pension Act, 1871 and section 13 of Payment of Gratuity Act, 1972. According to the counsel for the petitioners, the properties are shown to have been attached and scheduled, especially Schedule-III of the impugned order is in fact the asset relating to the amount of retiral dues which is received by petitioner No.1 after his superannuation from service. Shri Datt has submitted that the order of attachment could not have been passed in relation to the said properties because they do not fall within the ambit of “proceeds of crime” and has no connection with the provision of Prevention of Corruption Act. The counsel for the petitioners has submitted that the properties which are said to have been attached and mentioned in Schedule-III attached with the impugned order have nothing to do with the income said to have been received by the petitioners illegally but it is an amount invested by the petitioners out of the salary that was paid to him by the employer for performing the services and in any manner the same cannot be termed as asset falling within the ambit of “proceeds of crime” and, therefore, it is claimed that the said order in respect of provisional attachment of the properties shown in Schedule-III should be quashed. The counsel for the petitioners has relied upon a judgment reported in (2000)6 SCC 338 (State of M.P. v. Mohanlal Soni). He has also submitted that the properties shown to have been provisionally attached mentioned in Schedule-III are not of the said period i.e. from October 1995 to 12.12.2010 and, therefore, even otherwise those cannot be considered to be “proceeds of crime” and cannot be proposed to be attached. 4. Shri Vikram Singh, learned counsel appearing for the respondents has submitted that this petition is pre-mature because it is only an order of provisional attachment and it is yet to be scrutinized and final order of attachment shall be passed by the adjudicating authority and if the order of provisional attachment is passed by the office of respondent No.2, then from the date of said attachment, he will make a complaint within a period of 30 days therefrom before the adjudicating authority as provided under section 5(5) of PMLA Act, 2002 and the adjudicating authority as per section 6 of PMLA Act, 2002 after giving opportunity of hearing shall pass final order of attachment. Therefore, Shri Singh has submitted that whatever grievance and submissions are being raised before this Court, the petitioners shall get an opportunity to raise all these grounds before the adjudicating authority because the statutory remedy is available and it is not a final order of attachment and considering the submissions made by counsel for the petitioners, order of provisional attachment can be set aside. He has further submitted that the statutory remedy is available and a forum is also available to the petitioners to submit their grievance and the same can be done without apprehending that the adjudicating authority will not consider the submissions of the petitioners and order affirming the provisional attachment will be passed. The counsel for the respondents has placed reliance upon a judgment passed by the High Court of Andhra Pradesh in W.P. No.15093/2023 (Design Tech Systems Private Limited v. The Union of India and others). 5. I have heard the rival submissions made by the counsel for the parties and perused the record. 6. Considering the submissions made by counsel for the parties and provision i.e. section 5(5) of the PMLA Act, 2002 in which the order can be passed by the competent authority of attachment of property if it is found involved in money laundering. I have heard the rival submissions made by the counsel for the parties and perused the record. 6. Considering the submissions made by counsel for the parties and provision i.e. section 5(5) of the PMLA Act, 2002 in which the order can be passed by the competent authority of attachment of property if it is found involved in money laundering. Although, as per the submissions made by the counsel for the petitioners, only those properties which come within the definition of “proceeds of crime” can be attached but not the others and “proceeds of crime” has been defined under section 2(u) of PMLA Act, 2002. The definition of “proceeds of crime” as has been prescribed in Section 2(u), reads as under:- “2(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];” 7. From the impugned order, it is clear that it is an order of provisional attachment and in a complaint made to the adjudicating authority which is pending, the petitioners may get an opportunity to submit their stand and to convince the said authority and thereafter the said authority as has been mentioned in section 6 of PMLA Act, 2002, will pass an order of final attachment only after getting himself satisfied. Thus, at this stage, interference in my opinion and giving any opinion that the properties shown to have been attached and mentioned in Schedule-III of the impugned order would not be proper when the statutory remedy is there so as to submit the grievance of the petitioners before the said authority. It is appropriate that the petitioners should avail the said remedy and try to satisfy the adjudicating authority and if that is done, the adjudicating authority may take appropriate decision thereon and that decision can be challenged by the petitioners, if they are so aggrieved with the same, as per the remedy available to them. 8. It is appropriate that the petitioners should avail the said remedy and try to satisfy the adjudicating authority and if that is done, the adjudicating authority may take appropriate decision thereon and that decision can be challenged by the petitioners, if they are so aggrieved with the same, as per the remedy available to them. 8. Interfering in a decision making process so as to pass final order of attachment exercising the power provided under section 528 of BNS, in my opinion, is not proper and, therefore, I am disposing of this petition directing the petitioners to avail the said remedy. The respondents are also directed to provide an opportunity to the petitioners to submit their stand and after considering the said stand, final order of attachment under section 6 of PMLA Act, 2002 can be passed. 9. The authority is also directed to expedite the said proceeding so as to avoid further inconvenience to the petitioners. 10. With the aforesaid, this miscellaneous petition stands disposed of.