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Eviction of occupant from provisionally attached property u/s 8(4) is neither violative of Article 14 nor article 300A

December 19, 2020[2020] 122 taxmann.com 181 (Karnataka)
7 Views

FEMA/BANKING/INSURNACE : Section 8(4) is neither violative of Article 14 nor Article 300A

I. Whether eviction of occupant of a property or in other words, taking possession of property which is provisionally attached and thereafter confirmed, would be violative of Article 14 of Constitution of India or does it amount to depriving a person of his property rights guaranteed under Article 300A of Constitution of India

• Under section 8(5) of the PML Act, Special Court is empowered to confiscate property belonging to a person after arriving at a conclusion that the offence of money-laundering has been committed or such property has been used for commission of the offence of money-laundering. In that view of the matter, it cannot be gainsaid by any of the petitioners that property which has been provisionally attached and said provisional order of attachment having been confirmed, the possession of such property cannot be taken under section 8(4) of the PML Act or frozen under sub-section (1A) of section 17. It is only the beneficial enjoyment of the property by the owner or the occupier which is taken away by the authority by virtue of express provision namely section 8(4). There is no confiscation of the property or the owner of the property is not deprived of his title, which could happen only under sub-section (5) of section 8. Hence, at the stage of either the provisional order of attachment passed under section 5(1) or its confirmation thereof under section 8(3), can it be construed as a person of having been deprived of his right, title and interest over the property. These stages as noticed hereinabove being intermediary stages before confiscation, the question of deprivation of the property right to its owner by virtue of Article 300A of the Constitution does not arise at all. Sub-section (4) of section 8 of PML Act does not fall foul of either Article 14 of the Constitution of India or Article 300A of the Constitution of India.

II. Whether proceedings under PML Act can be initiated by authorities even though offence specified under schedule not being in existence or in other words, even though FIR is not registered for offences specified in Schedule to PML Act, against such person who is facing proceedings under PML Act

• Contentions raised by the petitioners to quash the proceedings on the ground of the proceedings initaited against them is without jurisdiction for want of either there being no predicate offence or on the date of launch of proceedings under the PML Act, the predicate offence referred to in the schedule was not incorporated in the schedule and as such, there would be retrospective application of law cannot be accepted, inasmuch as, the offence of money laundering as indicated under section 3 of PML Act is a stand-alone offence.

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