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Judgment
FPA-PMLA-1173-1174, 1266 & 1267/AHD/2016
By this common order, I propose to decide all four above mentioned appeal. The appeal nos. FPA-PMLA-1266/AHD/2016 and FPA-PMLA-
1267/AHD/2016 have been filed against the order dated 05.02.2018. The appeal nos. FPA-PMLA-1173/AHD/2016 & FPA-PMLA-1174/AHD/2016
have been filed against the order dated 24.11.2015.
The facts and legal issues in all appeals are similar thus by single order these are being disposed with the consent of the parties.
In O.C. No. 503/2015 dated 24.11.2015, the respondent no. 1 has made a search of cash of Rs. 6.47 Lacs approximately from house C-83, Shyam
Nagar, Jaipur owned by the father of the appellants.
It is on record and also an admitted fact that the house at C-83, Shyam Nagar, Jaipur was owned by the father of the appellant. It is also an
admitted fact that the appellant used to reside with his father, mother, brother and his family as a joint family in this house.
4.1 The panchnama dated 22.05.2015 relating to recovery of cash amounting to Rs 6.47 lacs approximately was infact seized from various rooms and
spread over different places in the same house having access by the particular members of the family only.
It is the case of the appellant that the cash so found in all belonged separately to different persons residing in the house and by no stretch of
imagination can be attributed in the name of the appellant and/or his brother. It is alleged that every adult person so resident of the said house had its
own sources of income. As far as the appellant is concerned, the appellant had only an amount of Rs 27,000.00 found in the premises whereas the
remaining amount belonged to different persons. Their affidavit and relevant books of accounts were also produced before the Adjudicating Authority.
The appellant further contended before the Adjudicating Authority that the appellants were answerable only to the amount attributable to him which is
also reflected in his books of accounts as amount of cash originating from his legal sources of income.
The said authority did not take note of the same and therefore also the impugned order dated 24.11.2015 is bad in law and deserves to be set aside as
per appellant.
In O.C. No. 523/205 dated 05.02.2016 the respondent no. 1 during search of the premises where the assorted jewellery and utensils valued at Rs.
85,08,920.00 was recovered and seized.
It is averred that from the Panchnama dated 22.05.2015 that an authorization of search of the premises C-83, Shyam Nagar was given by the Joint
Director, PMLA, AZU, Ahmedabad. It is stated by the appellant that integrity of the officer was doubtful as averted by his Director. When the said
premises was found locked, the decision to break open the lock of the doors, safe, almirah etc. was taken by the Assistant Director, Jaipur Zonal Unit.
Nothing is on record that any such permission in writing was ever granted by any officer of the rank of Deputy Director and above. This being against
the basic spirit of Section 17(1) (iv) (b) of the Act.
Two separate impugned orders have been passed confirming the attachment. The main facts are taken from appeal no. FPA-PMLA-
1266/AHD/2016.
Counsel for the appellant has handed over the dates of events and synopsis in the matters. The same reproduced for purpose of understanding the
events from time to time.
i) 25.03.2015 A FIR No. 85/2015 was registered with Kishanwadi Police Station, Vadodara, Gujarat against Shri Girish Parshottam Patel @ Tommy
Patel, Kiran Jayantilal Mala, D.S. Chauhan @ Dharmin Chauhan and Chirag Parikh for offence of obtaining SIM under forged IDs and signatures
being offence under Section 120 B r/w 418, 419, 420, 467 & 471 of IPC.
Admittedly the name of the appellant did not figure in the FIR. The allegation leveled against the appellant were that they were SHIBU, Jaipur and
have settled betting proceeds to the tune of Rs 387.5 crores approx between the period 01.12.2014 to 16.03.2015.
ii) 22.05.2015 Search conducted at the premises of appellant where the appellants resided with their father and brother‟s family. A joint family
status
iii) 22.05.2015 Indian Rupees 6,46,700.00 were seized with ASSORTED JEWELERY AND UTENSILS valued at Rs 85,08,920.00.
iv) 10.09.2015 Provisional attachment order No 10/2015 dated 10.09.2015 issued by the Enforcement Directorate, Ahmedabad Zonal Unit (PAO)
for seizure of jewelery and utensils valued at Rs 85,08,920.00
v) 05.02.2016 PAO Confirmation Order Number in OC No 523/2015 issued
As mentioned above that the FIR No. 85/ 2015 was registered on 25.03.2015 with Kishanwadi Police Station, Vadodara, Gujarat against Shri
Girish Parshottam Patel @ Tommy Patel, Kiran Jayantilal Mala, D.S. Chauhan @ Dharmin Chauhan and Chirag Parikh for commission of offence
relating to obtaining SIM under forged IDs and signatures, being offence under Section 120 B r/w 418, 419, 420, 467 & 471 of IPC. Accordingly a
case No ECIR/03/AZO/2015 dated 26.03.2015 was registered by the office of the Enforcement Directorate, Zonal Unit, Ahmedabad against these
four persons.
10.1 During the course of investigation by Enforcement Directorate, it was allegedly noticed that these persons in the name and style of MARUTI
AHMEDABAD had settled proceeds in betting of Cricket to the tune of Rs 2469,99,08,750.00 from 01.12.2014 till 16.03.2015 by using these forged
SIM cards. It was thereafter alleged that these persons had settled proceeds in cricket matches betting to the tune of Rs 387,56,85,702.00.00 with one
SHIBU-JAIPUR. It was thereby alleged that Code name “Shibu Jaipur†is being used by two brothers Rahul Gangwal, the appellant & his
brother, Shri Vineet Gangwal. Subsequently, search was conducted on 22.05.2015 at the residence of the appellant, where beside the appellant, his
father, mother, brother and his family also resided. Certain documents relating to Bank and property, Indian Rupees 6,46,700.00 and ASSORTED
JEWELERY AND UTENSILS valued at Rs 85,08,920.00 were seized.
10.2. Thereafter, the office of the Enforcement Directorate, Zonal Unit, Ahmedabad, taking into consideration the material collected during their
investigation viz.
(a) Copy of FIR No 85/2015 registered with Kishanwadi Police Station, Vadodara, Gujarat
(b) Copy of report under Section 173 of Cr P C filed by DCB Mumbai in YEAR 2013
(c) Statement of Bank Accounts and ledgers of the persons mentioned in the FIR
(d) Statement of various persons recorded under Section 50 of PMLA, 2002 in the instant case and the documents submitted during their depositions.
(e) Various other documents collected during the searches at various places.
Proceeded to provisionally attach ASSORTED JEWELERY AND UTENSILS valued at Rs 85,08,920.00 seized from the premises, where the
appellant resided with his parents and brother.
10.3 The appellant through his counsel submitted a submission explaining the non applicability of the provisions of PMLA, 2002 against the appellant
and requested to release the seized Assorted Jewelery and utensils valued at Rs 85,08,920.00 and not to arbitrarily confirm the Provisional Attachment
Order so issued in this regard.
The Counsel of the appellant has referred the grounds against confirmation of the impugned provisional attachment order along with evidence in its
support, at the time of personal hearing.
It is stated that the Adjudicating Authority without taking on record any of the submissions; without any reasons, so recorded in writing; without
refuting any of the contentions so made by the appellant; resorted to confirmation of the Provisional Attachment Orders.
Aggrieved by the impugned order of the Adjudicating Authority (PMLA) the above mentioned appeals have been filed.
It is not denied by the respondent that the appellants have been implicated only on the basis of custodial retracted statement of three accused
namely Ashish Grover (P-70/C), Aman Bansal (P-76/C)and Ritesh Bansal (P-68/C). These statements are without identification from photo or mobile
no or address either. Ritesh Bansal have not even identified the name, Shri Ashish Grover identified only one person as shibu jaipur and Shri Aman
bansal identified two person as Shibu Jaipur. There is no other independent evidence against the appellants.
The Adjudicating Authority has simply based his finding on non appearance of the appellants before the ED had ignored the vital facts reiterated in
the Court Room that the appellants have been appearing before the ED since long but the ED has not to recorded their statements.
It is stated that the appellants had explained many time that they live in the joint family headed by their father and the jewelery and utensil seized
were STRI DHAN of three married ladies in the house and a few of their father generated in course of time out of his life long earnings. The ladies
had also placed their claims before the Adjudicating Authority by letter dated 16.01.2016.
It has also come on record that the impugned PAO 10/2015 has been issued by Shri J P Singh, Adhoc Joint Commissioner. It is an admitted fact
that all powers flows from the Director. The Director of the ED himself requested CBI to initiate enquiry in the matter.
It is a matter of fact that no report before the Magistrate under Section 173 against the appellants. In the charge sheet of 2013 the appellants were
not arrayed as accused. It is also informed this tribunal that no PMLA complaint has been filed against the appellants. The prescribed period already
expired.
Even, on merit no case beyond any doubt even prima facie is established by producing any cogent and clear evidence. Only on the basis of the
statement of alleged accused witnesses, the properties were attached. There is no independent evidences. The statement of other accused has no
value unless independent evidence implicating the appellant are produced.
Since, in the charge-sheet the appellant the appellants were not arrayed as accused for schedule offence as well as PMLA complaint. The prayer
of the appeals are liable to be allowed. Thus, the impugned order and the provisional attachment order against the appellants is quashed. The attached
properties are released forthwith. The finding arrived in these appeals shall have no bearing with regard to other parties if they are involved.
No costs