High Court of Gujarat (17.02.2023) In Welspun Steel Resources Pvt. Ltd. Vs. Union of India [R/Special Civil Application No. 19387 of 2022 ] held that;
The bar against action against the property, is available, not only to the corporate debtor but also to any person who acquires property of the corporate debtor under the CIRP or the liquidation process. The bar against action against the property of the corporate debtor is also available in the case of a person subject to the same limitation as prescribed in sub-Section (1) and also in sub- Section (2), if he has purchased the property of the corporate debtor in the proceedings for the liquidation of the corporate debtor.
The extinguishment of the criminal liability of the corporate debtor is apparently important to the new management to make a clean break with the past and start on a clean slate.
Therefore, what is clear is that it is only such property which is derived or obtained directly or indirectly as a result of a criminal activity can be regarded as proceeds of crime.
In the facts of the case, obviously apparent it is that the only allegation and the gist that had been discussed is that the corporate debtor used the credit raised from the bank for purposes other than intended purposes to carry out circular transactions with various group companies and making overseas investments.
There is no explanation as to how the properties standing in the name of corporate debtor and which form part of the assets sold to the petitioners are proceeds of crime especially since these assets are neither overseas assets or that of the group companies.
Merely because the impugned order records alleged fraudulent transactions and diversion of funds, it cannot automatically lead to a conclusion that the properties acquired by the petitioners are proceeds of crime.
That reason to believe must be founded on sufficient material. It cannot be founded on mere suspicion but based on evidence. It must be held in good faith, cannot be merely a pretense. It is always open for the court to examine whether the reason to believe has a rational connection or a relevant bearing to the formation of the belief and the reasons are not extraneous or irrelevant to the purpose.
When the assumption of jurisdiction by the authorities itself is non-existent and the respondent proceeds on facts which have no nexus to the objects sought to be achieved, and the opinion is not based on any tangible material, ‘reason to believe’ is a jurisdictional fact and in absence of such ‘reason to believe’ arrived at by the authorities, the bar of alternative remedy cannot oust the jurisdiction of this court.
Blogger’s Comments; All said and done, the principal objective of attachment & confiscation of tainted property in PMLA is that a person/company is not able to enjoy the proceeds of crime. Under IBC, as soon as the application under section 7, 9 or 10 is accepted, the control of the company is divested from its promoters/directors/existing management & the promoters/directors are prevented from taking back the control of the company (Section 29A & section 32A) either during insolvency proceedings or during liquidation process, thus fulfilling the principal objective of PMLA.
Rather, attachment of company’s property (particularly liquid assets i.e. bank accounts etc.) under the provisions of PMLA, during insolvency/liquidation proceedings frustrate the principal objective of the IBC, to put the assets of insolvent companies in the beneficial use of the society. In contrast due to protracted proceedings in PMLA the value of the assets gets diminished, which ultimately is the loss of the society.
Excerpts of the order;
# 1. The prayers in this petition read as under:
“a) Issue a Writ of Certiorari and/or a Writ in the nature of Certiorari and/or any other appropriate Writ/order inter alia quashing and setting aside the Provisional Attachment Order No. 8 of 2022 dated 21st September 2022 passed by Respondent No. 1 to the extent it attaches the Specified Assets that have been sold to the Petitioners;
b) Issue a Writ of Mandamus and/or a Writ in the nature of Mandamus and/or any other appropriate Writ/order inter alia to declare and order that the right, title and interest of the Petitioners to the Specified Assets sold to the Petitioners will not be affected in any manner by any action taken/to be taken by Respondent No. 1 under the provisions of the Prevention of Money Laundering Act against the Corporate Debtor or the Corporate Debtor’s promoters;”
# 2. Facts in brief are as under:
2.1 The petitioners namely (I) Welspun Steel Resources Private Limited (II) Welspun Corp Limited (III) Rank Real Estate and Infra Developers Private Limited and (IV) Mauyaan Shipyard Private Limited have approached this court challenging the provisional attachment order no. 8/22 dated 21.09.2022. ABG Shipyard Limited (the corporate debtor) was in the business of ship building in Dahej, Gujarat. An application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (IBC) was filed by the ICICI Bank against the Corporate Debtor which was admitted by the National Company Law Tribunal, Ahmedabad (NCLT). The respondent no. 2, after passing of an order on admission was appointed as an Interim Resolution Professional (IRP) and was subsequently confirmed as RP (Resolution Professional) by the Corporate Debtor. The Corporate Insolvency Resolution Process of the corporate debtor went on unsuccessfully for a period of one and half years and since it could not be resolved, by an order dated 25.04.2019, the corporate debtor was ordered to be liquidated by the NCLT. Several attempts to sell the assets were made but these public auctions had failed.
2.2 On 16.08.2021, the NCLT passed an order permitting the liquidator to complete the sale of assets on a composite basis and directed the liquidator to complete the process within a period of three weeks. On 24.08.2021, the liquidator issued a bid document for sale of specified assets of ABG Shipyard. The petitioners submitted their expression of interest on 26.08.2021. One of the bidders from the abandoned Swiss Challenge Process filed an appeal before the NCLT challenging the order of the NCLT dated 16.08.2021 permitting the liquidator to complete the sale of assets on a composite basis. The National Company Law Appellate Tribunal (NCLAT) upheld the order of NCLT.
2.3 On a challenge before the Apex Court, the Apex Court upheld the power of the liquidator to sell the assets and pursuant thereto the liquidator resumes the sale process by amending the bid document. The petitioners were successful bidders. It appears that in the interregnum, State Bank of India who was one of the lenders filed a complaint against the corporate debtor and promoters with the CBI. On 07.02.2022, an FIR was registered pursuant to the complaint by the CBI. On 15.02.2022, an enforcement case was recorded under Section 3 of the Prevention of Money Laundering Act, 2022 (PMLA).
2.4 After the petitioners were declared as successful bidders and had paid their entire sale consideration for specified assets, on 21.09.2022, the liquidator informed the petitioners that the respondent no. 1 – Deputy Director of Directorate of Enforcement had passed an order in respect of the assets that were sold to the petitioners. On 22.09.2022, a press note was published informing on its website that it had attached the assets of the corporate debtor. A copy of the provisional attachment order dated 21.09.2022 was received by the petitioners on 22.09.2022. The gist of the allegations contained in the order was that the loans raised on the banks were transferred to group companies and other businesses instead of using them for the intended purposes and that the corporate debtor was carrying out circular transactions with various group companies and making overseas investment. The petitioners being successful bidders of the specified assets which they had purchased pursuant to the auction proceedings conducted under the orders of the Apex Court the petitioners on 21.09.2022, paid the entire sale consideration of Rs.676 crores plus applicable taxes aggregating to Rs.789,05,00,000/- to the liquidator and who in turn issued sale certificates to the petitioners in respect of the specified assets put up for sale. For the purposes of purchase of these assets, the petitioners have availed of a loan of Rs.400 crores from the Indusind Bank and the primary security for the loans is the assets of the corporate debtor. It is these very assets which by the impugned order have been attached by the respondent no. 1.
# 3. Mr. Mihir Joshi, learned Senior Advocate assisted by Mr. Jay Kansara and Ms. Alisha Mehta, learned advocates for the petitioners would submit that Section 32(A) of the IBC creates a bar and the respondent no. 1 therefore was wholly divested of all jurisdiction to take any action against the specified assets which have been sold to the petitioners. He would submit that the Apex Court has upheld the constitutional validity of Section 32A after specifically considering the provisions of the PMLA. In support of his submissions, Mr. Joshi would rely on the decision in the cases of
(I) Manish Kumar vs. Union of India and Another [2021(5) SCC 1, paras 320-326]
(II) Rajiv Chakrborty Resolution Professional of EIEL vs. Directorate of Enforcement of the Delhi High Court [2022 SCC OnLine DEL 3703, paras 114 & 115].
3.1 Mr. Joshi, learned Senior Counsel would take the court to the provisions of Section 5 of the PMLA and submit that the impugned order does not determine that there is a ‘reason to believe’. He would submit that the foremost requirement under the provisions of the Act particularly section 5 of the Act is to form a reason to believe that the properties standing the in the name of the corporate debtor and forming part of the assets sold to the petitioners are ‘proceeds of crime’. Reading the definition of the term ‘proceeds of crime’ as defined in section 2(u) of the Act he would submit that if any property is derived or obtained directly or indirectly by any person as a result of criminal activity, the property so derived would be ‘proceeds of crime’. The petitioners have obtained the specified assets after a private sale conducted in accordance with the directions of the Apex Court and for which they have paid substantial amounts. Such properties therefore cannot be treated as property derived or obtained as a result of any criminal activity so as to be attached under Section 5 of the Act. Taking the court through the impugned order, he would submit that the case of the authority was that the ABG Shipyard had availed credit facility from consortium of banks and had diverted the funds so availed and used the funds for purchase of properties. The petitioners were in no manner concerned with the money trail as demonstrated in the impugned order and therefore the properties purchased through auction cannot be said to be properties derived from proceeds of crime. In coming to a conclusion that the assets acquired by the petitioners are proceeds of crime, the authorities have to come to ‘reason to believe’ that the possession that the petitioners have of the assets are from the proceeds of crime. In absence of any material, the authority has no ‘reason to believe’ that these assets are acquired from the proceeds of crime.
3.2 Mr. Joshi would submit that the expression ‘reason to believe’ does not mean purely subjective satisfaction. The reasons for the belief must have a rational connection or a relevant bearing to the formation of belief. It must be that one honest and a reasonable person based upon a reasonable ground. The reason to believe cannot arise from mere suspicion, gossip or rumour. The order suffers from non-application of mind as there are no objective reasons to believe recorded in the order. For a property to be a ‘proceed of crime’ must be derived and obtained directly or indirectly as a result of any criminal activity. Reason to believe is not bonafide and is not based on jurisdictional facts.
3.3 The petitioners, in Mr. Joshi’s submission cannot invoke any other remedy than that of filing the present petition as ‘reason to believe’ is a jurisdictional fact which must be determined prior to assuming jurisdiction. In support of his submission, Mr. Joshi would rely on the following decisions:
(a) Vijay Madanlal Choudhary vs. Union of India [2022 SCC OnLine SC 929];
(b) Madhya Pradesh Industries Ltd. vs. Income Tax Officer, Nagpur [(1970) 2 SCC 32];
(c) S. Ganga Saran and Sons (Pvt.) Ltd., Calcutta vs. Income Tax Officer and Ors. [(1981) 3 SCC 143];
(d) Sheo Nath Singh vs. Appellate Assistant Commissioner of Income Tax, Calcutta [(1972) 3 SCC 234);
(e) Radha Krishan Industries vs. State of Himachal Pradesh and Ors. [(2021) 6 SCC 771];
(f) Calcutta Discount Co. Ltd. vs. Income Tax Officer, Companies District I Calcutta and Anr. [AIR 1961 SC 372];
(g) The Income Tax Officer, I Ward, District VI, Calcutta and Others vs. Lakmani Mewal Das [(1976) 3 SCC 757].
3.4 Mr. Joshi would submit that the reasons to believe must be communicated in a crisp manner and reasons must be recorded which must be apparent from the order itself which is absent in the impugned order and is not recorded. He would rely on the following decisions:
(h) Shreya Singhal vs. Union of India [(2015) 5 SCC 1]
(i) CIT, West Bengal – III amd Ors. vs. Oriental Rubber Works [(1984) 1 SCC 700]
3.5 Assailing the order of attachment, it was Mr. Joshi’s submission that even the formation of an opinion must be based on tangible material. The subjective satisfaction as to the need for provisional attachment must be based on credible information and not on imaginary grounds and wishful thinking however laudable that may be. He relied on the following decisions
(j) Radha Krishan Industries vs. State of Himachal Pradesh and Ors. [(2021) 6 SCC 771]
3.6 It is the submission of Mr. Joshi that what is pertinent to notice is that these assets were not procured pursuant to any criminal activity. The orders cannot be challenged except by filing the present petition as there is no efficacious alternative remedy challenging the order. Reading the provisions of Section 8 of the PMLA, Mr. Joshi would submit that after conclusion of the process under Section 5(5) of the Act, the matter is handed over to the adjudicating authorities under Section 8 and the onus would be on the petitioners to show-cause as to why the specified assets are not proceeds of crime. In support of the same, he has relied on the following decisions:
(k) Radha Krishan Industries vs. State of Himachal Pradesh and Ors. [(2021) 6 SCC 771];
(l) Calcutta Discount Co. Ltd. vs. Income Tax Officer, Companies District I Calcutta and Anr. [AIR 1961 SC 372];
3.7 Mr. Joshi would submit that the consequences of provisional attachment are drastic and extraordinary and in absence of any cogent and credible material which constitute malice in law.
3.8 Making a fine distinction between a jurisdictional fact and an adjudicatory fact, Mr. Joshi would submit that a jurisdictional fact is a fact which must exist before a court or an authority assumes jurisdiction over a particular matter. If a jurisdictional fact does not exist, the court, authority or officer cannot act. Such an order therefore can be questioned by a writ of certiorari. The principle is that by erroneously assuming existence of a jurisdictional fact no authority can confer upon itself jurisdiction which it otherwise does not possess. Absence of jurisdiction is an exception and an alternative remedy cannot oust the jurisdiction of this court to exercise discretion in favour of the petitioners.
3.9 Mr. Joshi further pointed out that the original complainant, the State Bank of India was already a part of the SCC during the liquidation process and no objection was raised by the bank with respect to sale of assets by the petitioner and therefore when the complainant itself is agreeable to sell the very assets there is no question of attaching the very property.
# 4. Mr. Saurabh Soparkar, learned Senior Advocate assisted by Mr. Monaal Dawawala, learned advocate appearing for respondent no. 2 liquidator has supported the submissions made by the petitioners. He would submit that the orders are in violation of the provisions of Section 33(5) of IBC. No findings have been recorded that the properties are ‘proceeds of crime’. Relying on the decision in the case of CB Gautam vs. Union of India reported in 1993 (1) SCC 78, he would submit that the Apex Court has categorically held that recording of reasons which leads to passing of the order is a deterrent against arbitrary action. There is no nexus between the attached properties and diversion of funds. The impugned order is also in violation of provisions of Section 32(A) of IBC. The properties were purchased by the petitioners in a sale process conducted in accordance with law and in compliance of the Apex Court orders.
5. Mr. Devang Vyas, learned ASG appearing with Mr. Parth Bhatt, learned Standing Counsel for the respondent Union of India would take the court through the scheme of PMLA, especially reading sections 5, 8 and 42 thereof, and submit that the petition is not maintainable as not only the attachment is provisional and therefore the petitioner is at liberty to appear before the adjudicating authority under section 8 of the PMLA and satisfy the authority of the fact that the assets are not proceeds of crime. He would submit that in view of the investigation carried out under the provisions of PMLA what has been found is that the proceeds of the crime are to the tune of Rs.27,47,69,57,435/-.
5.1 Mr. Vyas would submit that the IBC would not prevail over PMLA since the objective is distinct from the purposes of other enactments. By virtue of Section 71 of the PMLA, it is apparent that the Act has an overriding effect.
5.2 Mr. Vyas would extensively read the contents of the order of attachment and submit that the same is in strict compliance of the Act and such reasons are recorded in writing as per the provisions. He would submit that on a complaint being lodged before the enforcement authorities, investigation was carried out, forensic audit was done and it was found that there was diversion of funds. The attachment was therefore necessary. In support of the contentions, Mr. Vyas would rely on the following decisions:
(i) Farida Begum Biswas vs. Union of India reported in 2015 SCC online Del 11834;
(ii) The State of Maharashtra and Others vs. Greatship (India) Limited [Civil Appeal No. 4956 of 2022];
(iii) Nitin Hasmukhlal Shah vs. Union of India [Special Civil Application No. 9946 of 2020];
(iv) G. Gopalkrishnan vs. Deputy Director, Directorate of Enforcement and other [WP (MD) No. 11454 of 2018];
(v) Kiran Shah vs. Enforcement Directorate, Kolkata reported in 2022 SCC Online NCLAT 2];
(vi) Apex Laboratories Private Ltd. vs. Deputy Commissioner of Income Tax reported in (2022) 7 SCC 98;
(vii) Varsana Ispat Limited vs. Deputy Director, Directorate of Enforcement NCLAT [Company Appeal (AT) (Insolvency) No. 493 of 2018]
# 6. Having considered the submissions made by the learned advocates for the respective parties, the legality of the order under challenge has to be addressed from the point of view whether the assets acquired by the petitioners can at all be said to be ‘proceeds of crime’. This is not only in light of the manner and the method in which the specified assets have been acquired by the petitioners but also in light of the provisions of the IBC. From the chain of events narrated in the earlier part of this judgement what is evident is that ABG Shipyard Limited went into liquidation. Assets of the company ‘corporate debtor’ were offered for sale pursuant to an auction held under the directions of the Apex Court. The petitioners were successful bidders and had after depositing the entire sale consideration received sale certificates. Certainly can it not be said that the assets which are ‘specified assets’ which the petitioners have acquired are those assets which are acquired as a result of criminal activity and therefore can be said to be ‘proceeds of crime’. In the decision in the case of Manish Kumar (supra), the Apex Court while considering the constitutionality of Section 32(A) of IBC held as under:
“320. Coming to sub-Section (2) of Section 32A, it declares a bar against taking any action against property of the corporate debtor. This bar also contemplates the connection between the offence committed by the corporate debtor before the commencement of the CIRP and the property of the corporate debtor. This bar is conditional to the property being covered under the Resolution Plan. The further requirement is that a Resolution Plan must be approved by the Adjudicating Authority and, finally, the approved plan, must result in a change in control of the corporate debtor not to a person, who is already identified and described in sub-Section (1). In other words, the requirements for invoking the bar against proceeding against the property of the corporate debtor in relation to an offence committed before the commencement of the CIRP, are as follows:
320.1 There must be Resolution Plan, which is approved by the Adjudication Authority under Section 31 of the Code;
320.2 The approved Resolution Plan must result in the change in control of the corporate debtor to a person, who was not – (a) a promoter; (b) in the management or control of the corporate debtor or (c) a related party of the corporate debtor; (d) a person with regard to whom the investigating authority, had, on the basis of the material, reason to believe that he has abetted or conspired for the commission of the offence and has submitted a Report or a complaint. If all these aforesaid conditions are fulfilled then the Law Giver has provided that no action can be taken against the property of the corporate debtor in connection with the offence;
321. The Explanation to sub-Section (2) has clarified that the words “an action against the property of the corporate debtor in relation to an offence”, would include the attachment, seizure, retention or confiscation of such property under the law applicable to the corporate debtor. Since the word “include” is used under sub-clause (i) of the Explanation, the word “action” against the property of the corporate debtor is intended to have the widest possible amplitude. There is a clear nexus with the object of the Code. The other part of the clarification, under the Explanation, is found in the second sub-clause of the Explanation
322. Under the second limb of the Explanation, the Law Giver has clearly articulated the point that as far as the property of any person, other than the corporate debtor or any person who had acquired the property of the corporate debtor through the CIRP or liquidation process under the Code and who otherwise fulfil the requirement under Section 32A, action can be taken against the property of such other person.
323. Thus, reading sub-Section (1) and sub-Section(2) together, two results emerge:
323.1 Subject to the requirements embedded in sub- Section (1), the liability of the corporate, debtor for the offence committed under the CIRP, will cease.
323.2 The property of the corporate debtor is protected from any legal action again subject to the safeguards, which we have indicated.
323.3 The bar against action against the property, is available, not only to the corporate debtor but also to any person who acquires property of the corporate debtor under the CIRP or the liquidation process. The bar against action against the property of the corporate debtor is also available in the case of a person subject to the same limitation as prescribed in sub-Section (1) and also in sub- Section (2), if he has purchased the property of the corporate debtor in the proceedings for the liquidation of the corporate debtor.
324. The last segment of Section 32A makes it obligatory on the part of the corporate debtor or any person, to whom immunity is provided under Section 32A, to provide all assistance to the Investigating Officer qua any offence committed prior to the commencement of the CIRP.
325. The contentions of the petitioners appear to be that this provision is constitutionally anathema as it confers an undeserved immunity for the property which would be acquired with the proceeds of a crime. The provisions of the Prevention of Money-Laundering Act, 2002 (for short, the PMLA) are pressed before us. It is contended that the prohibition against proceeding against the property, affects the interest of stakeholders like the petitioners who may be allottees or other creditors. In short, it appears to be their contention that the provisions cannot stand the scrutiny of the Court when tested on the anvil of Article 14 of the Constitution of India. The provision is projected as being manifestly arbitrary. To screen valuable properties from being proceeded against, result in the gravest prejudice to the home buyers and other creditors. The stand of the Union of India is clear. The provision is born out of experience. The Code was enacted in the year 2016. In the course of its working, the experience it has produced, is that, resolution applicants are reticent in putting up a Resolution Plan, and even if it is forthcoming, it is not fair to the interest of the corporate debtor and the other stake holders.
326. We are of the clear view that no case whatsoever is made out to seek invalidation of Section 32A. The boundaries of this Court’s jurisdiction are clear. The wisdom of the legislation is not open to judicial review. Having regard to the object of the Code, the experience of the working of the code, the interests of all stakeholders including most importantly the imperative need to attract resolution applicants who would not shy away from offering reasonable and fair value as part of the resolution plan if the legislature thought that immunity be granted to the corporate debtor as also its property, it hardly furnishes a ground for this this Court to interfere. The provision is carefully thought out. It is not as if the wrongdoers are allowed to get away. They remain liable. The extinguishment of the criminal liability of the corporate debtor is apparently important to the new management to make a clean break with the past and start on a clean slate. We must also not overlook the principle that the impugned provision is part of an economic measure. The reverence courts justifiably hold such laws in cannot but be applicable in the instant case as well. The provision deals with reference to offences committed prior to the commencement of the CIRP. With the admission of the application the management of the corporate debtor passes into the hands of the Interim Resolution Professional and thereafter into the hands of the Resolution Professional subject undoubtedly to the control by the Committee of Creditors. As far as protection afforded to the property is concerned there is clearly a rationale behind it. Having regard to the object of the statute we hardly see any manifest arbitrariness in the provision.”
6.1 If the authorities were given a free hand to pass orders of attachment of properties which were acquired by a successful bidder in a liquidation process, on a presumption that such acquisition was as a result of a criminal activity, could be contrary to the interest of value maximization of the corporate debtor’s assets by substantially reducing the chances of finding a willing resolution applicant or a bidder in liquidation.
6.4 Therefore, what is clear is that it is only such property which is derived or obtained directly or indirectly as a result of a criminal activity can be regarded as proceeds of crime. In the facts of the case, obviously apparent it is that the only allegation and the gist that had been discussed is that the corporate debtor used the credit raised from the bank for purposes other than intended purposes to carry out circular transactions with various group companies and making overseas investments. There is no explanation as to how the properties standing in the name of corporate debtor and which form part of the assets sold to the petitioners are proceeds of crime especially since these assets are neither overseas assets or that of the group companies.
7. Sine qua non to arrive at a determination that the assets are proceeds of crime, the foremost requirement is that the author has to have ‘reason to believe’ on the basis of material in his possession. ‘Reason to believe’ cannot arise from mere suspicion, gossip or rumour. Merely because the impugned order records alleged fraudulent transactions and diversion of funds, it cannot automatically lead to a conclusion that the properties acquired by the petitioners are proceeds of crime. In order to arrive at a conclusion that ‘reason to believe’ exists, there must be some material to suggest such formation of opinion. The decisions in the cases of Madhya Pradesh Industries Ltd.(supra), S. Ganga Saran and Sons (Pvt.) Ltd. (supra), Sheo Nath Singh (supra), Radha Krishan Industries (supra), Calcutta Discount Co. Ltd. (supra) and Lakhmani Mewal Das (supra) have set out principles where the courts have held that reason to believe must be founded on sufficient material. It cannot be founded on mere suspicion but based on evidence. It must be held in good faith, cannot be merely a pretense. It is always open for the court to examine whether the reason to believe has a rational connection or a relevant bearing to the formation of the belief and the reasons are not extraneous or irrelevant to the purpose. Reading the contents of the order indicates that such observations are based on only on suspicion and are such which one that cannot be arrived at by an honest and a reasonable person but are based on mere suspicion, gossip or rumour.
# 8. As far as the aspect of alternative remedy is concerned, which is vehemently pressed into service by the learned ASG Mr. Vyas, as discussed hereinabove, when the assumption of jurisdiction by the authorities itself is non-existent and the respondent proceeds on facts which have no nexus to the objects sought to be achieved, and the opinion is not based on any tangible material, ‘reason to believe’ is a jurisdictional fact and in absence of such ‘reason to believe’ arrived at by the authorities, the bar of alternative remedy cannot oust the jurisdiction of this court.
# 9. As far as section 8 of the PMLA is concerned, what is evident on reading the provision is that the onus shifts on the petitioners once the adjudicating authority decides to take action and therefore section 8 cannot be a ground on which the petitioner can be ousted from securing a relief in exercise of powers under Article 226 of the Constitution of India.
# 10. For the aforesaid reasons therefore, the petition is allowed. The order dated 21.09.2022 insofar as it attaches the specified assets of the petitioners as shown in para 12 of the impugned order in the schedule of properties at Sr. Nos. 13, 14, 15, 17, 18, 19 and 20 shall be treated as assets not falling within the purview of and having acquired from ‘proceeds of crime’. The order holding so is without jurisdiction and the assets are directed to be released from such attachment. Order accordingly. Rule is made absolute. No costs.
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