Arun Kumar Agarwal, Member

1. These appeals, FPAs 531/13; 532/13; 533/13 and 534/13 are directed against the order of the Adjudicating Authority dated 10th September, 2013 passed in Original Complaint No. 183/2013 dated 10.04.2013 confirming the provisional attachment order No. 04/2013 dated 14.03.2013 pursuant to ECIR No. 123/MZO/2010 under Section 5 of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as PMLA). All the above appeals have arisen in connection with the attachment proceedings concerning an offence registered vide FIR No. 132/2009 dated 29.4.2009. On filing of chargesheet CC No. 1521/PW/2010 on 6.7.2010 before the MM, Railway Mobile, Andheri East, Mumbai, the respondent passed a provisional attachment order. As most of the facts and pleas & contentions raised by the appellants are similar, the above appeals are disposed of by this common judgment.

Brief facts:

2. The Appellant Munir Mohammed Ahmed Khan (hereinafter also referred to as Munir Khan) proprietor of M/s. Health Reactive is alleged to be the main accused in the charge sheet. Munish Munir Khan and Sarosh Munir Khan are sons of Munir Khan who are also accused in the charge sheet and Zeenath Khan is daughter of Munir Khan.

3. Munir Khan, who is main accused, in his statement before the respondent under section 50 of the Act stated that he had studied up to 12th standard from government college, Bundi, Rajasthan; that he was not very interested in the normal schooling and used to study books on different subjects including Vedas and longevity; that in the year 1983, he started civil contactor work for Western Railway, Kota, Rajasthan; that he was also doing research for making a medicine which could rejuvenate body cells; that by using various herbs he prepared a ayurvedic medicine in 1986; that with the help of this medicine he cured many people and became very famous in Kota; that in the beginning he used to give the medicine free of cost but later on he started charging some money towards cost of the medicine; that in the year 1998-99 he shifted to Mumbai with the intention to treat patients in Mumbai; that an article was published in Times of India about him and his medicine which was titled "Hope for terminal patients" and "Herbal defense" and then many people/patients approached him for the medicine and he used to sell it to them for Rs. 3000/6000 for five-day/ten-day course; that around the year 2003 as the number of patients had increased, he started charging Rs. 15,000/- for a bottle of medicine; that due to interviews on TV, he started getting more and more patients and therefore, he appointed girls to attend to the people making enquiries and also took few Ayurvedic and Homoeopathic doctors on payroll; that these doctors were told to check the patients case history and then he used to prescribe the dosage and duration of the medicine made by him to be taken by the patient; that later he appointed more Homoeopathic and Ayurvedic doctors to check the patients cases; that he had kept the doctors only for the satisfaction of the patients and to know only the size of the tumor in case of cancer or percentage of blockage in case of heart disease; that he also obtained a naturopathy certificate from Bharvins Academy of Naturopathy, Kandivali, Mumbai; that he used to make the medicine at home; that people used to pay for the medicine by cash, cheque or demand draft and that the sale consideration of the medicine used to be deposited in his and his wifes account held with the bank; that later as per advice of one of his patient, in the year 2006 he started Munir Khan Cancer Trust to get income tax benefit and to get land at concessional rate from the government and he asked the patients to give money towards sale of medicine in the name of Trust.

4. Munir Khan, proprietor of M/s. Health Reactive, KHA-1(A), Vigyan Nagar, Kota was engaged in the business of manufacturing and selling ayurvedic/unani products including an ayurvedic product called "Body Revival". It is alleged that Munir Mohammed Ahmed Khan was widely acclaimed himself as a doctor over many TV channels capable of curing patients of any ailment by taking his so called panacea "Body Revival". He claimed in TV advertisements that his medicine could cure various incurable diseases 100% and if his medicine would not produce the desired effect, he would return the money. It is alleged that however, contrary to his claims in advertisements, the patients were required to sign on a consent letter on which it was written that there was no guarantee that their ailment would be cured. The refund was restricted to the quantity of medicine left in the bottle. It is alleged that the report regarding the medicine, received from the FDA authorities stated that the medicine did not possess any medicinal properties; that the drug Yogiraj/Kukronda contained in the medicine were banned by the Forest Department and constituents of the medicine could not cure any incurable diseases as claimed. It is alleged that the Appellants thus cheated the patients, general public.

5. Munir Mohammed Ahmed Khan formed a trust namely Munir Khan Cancer Trust and got it registered with the charity commissioner on 17/07/2006. The trustees of the trust were Munir Khan, Mrs. Ruksana Munir Khan w/o Munir Khan and Feroz Noor Mohammed Khan. It is alleged that instead of carrying out the charitable activity as declared in the trust deed, they were selling the medicine "Body Revival" and the money so earned was used for their personal gains. It is alleged that transactions involved in the bank accounts of Munir Khan Cancer Trust were of several crores of rupees.

6. It is further alleged that lady doctors working with Munir Khan who had completed their studies in ayurveda and homoeopathic were prescribing only "Body Revival" in identical doses and advised patients to avoid taking curd, milk and butter milk without any rational basis. From the statements of 66 witnesses recorded, except two of them, remaining persons have stated that due to the medicine given by Munir Khan, their health condition or their relatives health condition instead of improving, had worsened and in some cases had also resulted in their relatives death. Similarly 143 people have filed complaints against Munir Khan stating that due to the medicines given to them and their relatives their condition had worsened and some of them even had died.

7. One Vilas Gopaldas Potdar, aged 53 years resident of Thane filed a complaint with police against Munir Khan. He stated that his wife was suffering from acute vision problem and was under treatment. He had watched a television program about Munir Khan. During the setup program, Munir Khan had claimed that he had made the medicine "Body Revival", which could cure incurable diseases like cancer, diabetes, HIV etc. In the program, interview of the people, who were allegedly benefited by the said medicine were shown. He along with his friend, Sh. Sayyad Wajid Hussein and wife went to buy the medicine. Without examining his wife, Munir Khan told him to give "Body Revival" to his wife. Accordingly he purchased the said medicine and gave it to his wife. His wife after taking the medicines instead of getting cured, lost her eyesight completely.

8. On the basis of written complaint of Mr. Potdar, the Versova Police station of Mumbai police registered a FIR No. 132/2009 dated 29.04.2009 against Munir Khan and others under sections 274, 275, 276, 406, 465, 467, 468, 471 and 420 of IPC and under sections 3(3) and 7 of Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 and under sections 33 and 36 of Maharashtra Medical Practitioners Act, 1961. Upon completion of investigation, the Versova police filed chargesheet CC No. 1521/PW/2010 dated 06.07.2010 before the Metropolitan Magistrate, Railway Mobile Court, Andheri East, Mumbai under sections 467, 468, 471, 419, 420, 406, 108 and 34 of Indian panel Code, under section 3(d) read with Schedule S. No. 6, 9, 50 & 39 and section 7 of Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 and under sections 33 and 36 of Maharashtra Medical Practitioners Act, 1961 against Munir Khan and 9 others. It is alleged that Munir Khan along with others connived and knowing that he is not a qualified doctor on the basis of degree of Doctor of Naturopathy held by him, misrepresented to be a Doctor and prescribed the medicine "Body Revival" knowing that it does not contain any medicinal properties which is made up of ingredients like Yogiraj, Kukronda which are banned by the Forest Department. He falsely claimed himself as a doctor on various TV channels and treated patients by prescribing a non-effective concoction and sold the said concoction is not a medicine and knowing that the alleged medicine sold by him will be ineffective.

9. It is alleged that Munir Khan and others thus cheated patients by falsely representing Munir Khan to be a doctor and falsely claiming that the concoction, alleged medicine, invented by him could cure various incurable diseases and thereby making them buy his medicine "Body Revival" which has no medicinal properties. As the offences alleged to have been committed u/s. 420, 467 and 471 of IPC were scheduled offences under the PMLA, the respondent registered ECIR/123/MZO/2010 and started investigation. Respondent recorded statements of the accused persons as well as various other parties under section 50 of the PMLA. After investigation, respondent found that Munir Khan himself and in the name of his family member has acquired various immovable and movable properties out of the proceeds of crime and projected the same as untainted properties. Thus, the respondent the properties under section 5 of the PMLA vide order No. 04/2013 dated 14.03.2013 and filed original complaint No. 183/2013 dated 10.04.2013 before the Adjudicating Authority for confirmation of the provisional attachment order. The matter was placed before the Adjudicating Authority and the order of provisional attachment was confirmed by order dated 10.09.2013 after following the requirements of the law and after giving due opportunity to the various appellants, which is now being assailed before us in the above noted appeals.

10. In the appeals, the appellants have raised various grounds to assail the impugned order. However during the course of arguments, the counsel for appellants pressed only some of the grounds which have been considered and dealt with hereinafter.

11. The counsel for appellants submitted that Munir Khan, proprietor of M/s. Health Reactive, Vigyan Nagar, Kota, was engaged in the business of manufacturing and selling an Ayurvedic/Unani product called "Body Revival" for whose manufacture and sale he had a valid license number 583-AYU, issued by Licensing Authority, Ajmer, Rajasthan, which was in force from 16.04.2008 till 15.04.2011. The said license was duly obtained from the Licensing Authority under Drugs and Cosmetics Act, 1940 and rules made there under. It was thereafter, renewed before its expiry which is in force. The product was manufactured as per the terms of license and manufacturing certificate substantiates the same.

12. The counsel for appellants submitted that amongst various products manufactured by M/s. Health Reactive, which are about 26 in number, specific product approval of "Body Revival", product in question, was also obtained on 18.11.2008 from the licensing authority, Ajmer, Rajasthan. He contended that the authorities granted specific product approval, only after the product had been tried and tested by a competent authority with a number of persons and they were found to be fit. He submitted that subsequently the license number 583-AYU was cancelled on 01/12/2009 in an unauthorized manner which was subsequently revived/renewed. He submitted that the license for product Body Revival was again suspended on 14.11.2011 by Licensing Authority, Ajmer, Rajasthan but vide letter dated 09.04.2013, Licensing Authority, Ajmer, Rajasthan again gave approval for the product "Body Revival".

13. The counsel for appellants submitted that the product at all times was manufactured and had conformed to the formulation and the prescribed norms. He submitted that state of Himachal Pradesh was offering investment incentives; therefore a manufacturing unit was established at Baddi in the year 2009-10. He submitted that the requisite certificate from Himachal Pradesh authorities was also obtained upon submission of a certificate from competent authority to the effect that the product has been tried and tested and has been found to be fit. Unfortunately, on 15.5.2012 specific product approval for "Body Revival", without disturbing the general license or other product approvals, has been revoked by the Licensing Authority, Ajmer, Rajasthan which has been challenged before the Rajasthan High Court, Jaipur. He pointed out that the Bombay High Court vide its order dated 12.10.2012 has also granted the appellant liberty to approach concerned authorities for renewal of the license. He submitted that the after the writ was disposed off, the Licensing Authority, Ajmer, Rajasthan was pleased to approve the product "Body Revival".

14. The counsel for appellants further submitted that it is not denied that all the properties which are subject matter of attachment were purchased out of the proceeds collected from the sale of "Body Revival" which was manufactured after obtaining the permission from the Licensing Authorities as aforementioned. The appellants deposited the monies received from the sale of the product "Body Revival", whose manufacture and sale is not a scheduled offence under the PML Act and therefore no offence has been committed by the appellants. The Bank accounts including the account of Munir Khan Cancer Trust was managed by Shri Munir Khan, the managing trustee of the said Trust and no monies from any third parties were accepted in the said Trust. The Trust was managed like a private charitable entity by appellants. The counsel emphatically submitted that the appellants have rather made true and frank disclosure of all the above facts at all times of the proceedings including in their statements given under section 50 of the PMLA.

15. The counsel submitted that initially an FIR No. 116/2009 was lodged by Munish Munir Khan at Versova police station, Mumbai under section 384, 385 and 120B of IPC alleging that Mr. Vilas Poddar, Mr. Wajid Hussain and Mr. Firoz are demanding a sum of Rs. 8 crores as extortion for the benefit of themselves so that police officials do not register cases against the appellants and their family. He submitted that as the illegal demand of Mr. Poddar had not been met, therefore he was proceeded against by the appellants through FIR No. 116/2009. As a counter measure, Mr. Potdar lodged an FIR No. 132/2009 on 29.4.2009 against appellants and others. The counsel submitted that as the police officials were involved therefore, proceedings in both the aforesaid cases were being conducted in a partial manner. Therefore, the appellants approached the Bombay High Court for issuance of appropriate and necessary directions to the police authorities. The Bombay High Court directed the Commissioner of Police, Mumbai to ensure that both the cases are investigated independently and expeditiously in accordance with law.

16. The counsel submitted that pursuant to the aforesaid FIR No. 132/2009 dated 29.04.2009, chargesheet CC No. 1521/PW/2010 was filed on 6.7.2010 before the M.M., Railway Mobile, Andheri East, Mumbai, under sections 467, 468, 471, 419, 420, 406, 108 and 34 of Indian panel Code, under section 3(d) read with Schedule S. No. 6, 9, 50 & 39 and section 7 of Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 and under sections 33 and 36 of Maharashtra Medical Practitioners Act, 1961 against Munir Khan, Munish Munir Khan, Sarosh Khan and others.

17. He further submitted that offences under Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 and Maharashtra Medical Practitioners Act, 1961 are not included in the schedule of PMLA. He submitted that even the offences under Drugs and Cosmetics Act, 1940 are not included in the schedule of PMLA. The counsel argued that even if it is assumed for the sake of arguments that appellants earned monies pursuant to violations of the aforementioned statutes, such monies or properties derived there from cannot be subject matter of attachment proceedings under PMLA.

18. The Counsel submitted that PML Act as originally enacted only included the offences provided under section 121 and section 121A of IPC in part A-paragraph 1 of the Schedule and the offences under section 302, 304, 307, 308, 327, 329, 364A, 384 to 389, 392 to 402, 467, 489A, 489B of IPC in part B-paragraph 1 of the Schedule. No offence under IPC other than as mentioned above initially was a scheduled offence and the provisions of PML Act could not be resorted to in cases of monies earned by commission of offences under IPC other than those in the Schedule of PMLA. Prevention of Money Laundering (Amendment) Act 2005 made no addition to the Schedule. Prevention of Money Laundering (Amendment) Act 2009 which came into force w.e.f. 1st June 2009 inter alia added offences under section 419, 420 and 471 of IPC under part B-paragraph 1 of the Schedule by substituting the then existing provisions.

19. The counsel submitted that the proceedings under PML Act were initiated by the respondent because the offences under section 420, 467 and 471 of the IPC under which chargesheet has been filed are also now covered under part B of paragraph 1 of the schedule of offences under PML Act. Section 420 of IPC deals with offence of cheating and dishonestly inducing delivery of property, section 471 deals with offence of using a forged document as a genuine document and section 467 deals with forgery of valuable security. The counsel submitted that during the process of investigation the respondent recorded the statement of witnesses to infer that the appellants have committed offence under section 420 of IPC. The impugned order and the complaint as well as the provisional attachment order do not even disclose any forgery alleged to have been committed by the appellants or use of any forged documents except simply stating that chargesheet has been filed for those concerned offences.

20. The counsel contended that PML Act is not applicable to offences that have been committed prior to the date of the enactment of the amending statute. The provisions of PMLA cannot be resorted to in respect of those offences under IPC which have been committed or alleged to have been committed prior to the date on which such offences were included within the purview of Schedule of PMLA. He contended that there is no dispute that section 420 and 471 of IPC were added to the schedule of PMLA by way of amendment which came into force w.e.f. 1.6.2009. He submitted that FIR in respect of the alleged offences in the instant case was ledged on 29.04.2009. The entire complaint and impugned order contains finding against Munir Khan only in respect of offence under section 420 of IPC which allegedly was committed much prior to 01.06.2009. The complaint and the impugned order have no mention about Munir Khan having committed any offence under section 467 or 471 of IPC apart from simply stating that chargesheet has been filed under the said provisions. The findings in the impugned order are also only qua the offence of cheating under section 420 of IPC.

21. The counsel submitted that the amending statute, Prevention of Money Laundering (Amendment) Act, 2009 does not contain any provision to make it applicable retrospectively and therefore action of the respondent to apply the provisions of PMLA in respect of offences allegedly committed prior to their inclusion in PMLA is bad in law.

22. The counsel submitted that the reliance placed by the Adjudicating Authority on the judgment of Andhra Pradesh High Court in the case of B Rama Raju versus Union of India : (2011) 108 SCL 491 is erroneous. He submitted that though the Adjudicating Authority quoted some of the observation of the Andhra Pradesh High Court but gave no finding as to whether the respondent could have resorted to and applied the provisions of PMLA in those cases where the alleged offence of cheating was committed prior to 1.6.2009. The counsel contended that the judgment of the Andhra Pradesh High Court is distinguishable. He further submitted that the reliance on the judgment of B. Rama Raju v. Union of India and Ors. : (2011) Comp Cas 149(AP) was inappropriate as the same has been challenged before the Honble Supreme Court (SLP C 28394/2011) and the Honble Supreme Court has also issued notice on the same. He submitted that Munir Khan committed the alleged schedule offence prior to 1.6.2009, therefore, asset acquired prior to 1.6.2009 as well as after 1.6.2009 could not be attached.

23. The counsel for appellants submitted that the offence of cheating and dishonestly inducing delivery of property is included in part B of schedule of PMLA and such offence, as per section 2(y)(ii) of PMLA, becomes a scheduled offence only if the value involved in the offence is Rs. 30 lakh or more. Such a threshold can be met when single transaction meets the threshold. It cannot be used for joining various offences, even if they are of recurring nature, each of which is distinct and separate.

24. The counsel submitted without conceding, but assuming for the sake of argument that section 2(y)(ii) can be satisfied even by the cases where the sum taken together satisfies the threshold e.g. three distinct transactions/offences satisfying the ingredients of section 420 of IPC each involving a sum of Rs. 15 lakh. However, if a person, for example, has cheated 50 different persons in a similar/identical fashion and dishonestly induced each of them to deliver a sum of Rs. 15,000/-, provisions of PMLA cannot be resorted to since the cumulative sum involved in the various offences of section 420 is much less than the prescribed threshold under the Act.

25. The counsel submitted that in the present case, the respondents allegations are vague that Munir Khan had cheated and dishonestly induced innumerable persons to deliver Rs. 15,000/- each. The FIR No. 132/2009 however, is filed only by one person. The trial consequently will only be to ascertain whether the offence under section 420 of IPC was committed qua such complainant or not. The counsel drew our attention to copy of FIR and pointed out that the total value of property involved in alleged crime is only Rs. 15,000/-. Therefore a single offence of cheating does not give jurisdiction to respondent under PMLA.

26. The counsel submitted that the charge sheet filed in the present case simply records that statements of 66 witnesses and except two of these persons all others have stated that due to the medicines given by Munir Khan, condition of their relatives had worsened. Even if the total value of property involved in alleged offence is calculated for these 64 persons, the total value would come to Rs. 9.60 lakhs i.e. 64 * Rs. 15,000/-, which is much below the threshold limit of Rs. 30 lakh. The counsel further submitted that the charge sheet additionally also mentions of 143 persons having filed applications for having their or their relatives condition worsened but it does not record whether they merely alleged violation of provisions of Maharashtra Medical Practitioners Act, 1961 or also alleged commission of offence under section 420 of IPC or simply alleged that Body Revival did not work for them.

27. The counsel further contended that there is no specific allegation as to how much money was earned by committing which offence, as various offences are alleged to have been committed by the accused in the charge sheet. Therefore, considering the facts and circumstances of the case, the total value of property involved in alleged scheduled offence would be much below than the threshold limit of Rs. 30 lakh.

28. The counsel for appellants submitted that there were no reasons to believe for the respondent, though the respondent has stated there are reasons to believe which the respondent has failed to disclose. He submitted that the scheme of PMLA in so far as it pertains to attachment of the properties, be it at the stage of section 5(1) i.e. provisional attachment or section 8(3) i.e. confirmation of the provisional attachment, is quite drastic and draconian and therefore, provisions of the statute are not to be resorted to unless every condition provided in the statute permitting invocation of the powers of attachment has been fully met. Parliament in its wisdom has not permitted to draw a legal presumption under section 5(1) or any other provision of the statute, against a person accused of a scheduled offence that he or she will in all cases attempt to conceal or transfer the property. Parliament, on the contrary, has expressly specified that powers under section 5(1), should not be resorted to unless the authority "has reason to believe (the reason for such belief to be recorded in writing) on the basis of material in his possession" that "proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation".

29. He submitted that the entire complaint filed by the respondent and the provisional attachment orders issued by the respondent do not even feebly mention, leave apart justifying, that the appellants may fritter away any of the subject assets. The attachment orders cannot follow as a matter of course in every case where charge sheet is filed and the cognizance is taken in respect of the scheduled offence. The power of attachment is an emergent power to be resorted only in appropriate cases and not in every case indiscriminately. Therefore, the very invocation of the powers of attachment in the instant case is bad in law and attachment orders are liable to be set aside.

30. He submitted that the scope of section 5(1)(c) is exemplified by consequence of attachment provided under section 8(4) of PMLA. Upon rightful invocation of the attachment powers, and subsequent to their confirmation, even the possession of the property can be taken by the PMLA authorities. It need be borne that the person is dispossessed of all the properties even before he is convicted.

31. The counsel submitted that the respondent has not recorded any circumstances on the basis of which he came to the conclusion that the properties may be transferred by the appellants. He submitted that even after commencement of proceedings under PMLA no action has been taken by the appellants qua the subject properties which may have caused any apprehension in this regard and which will justify the action of Respondent. Immovable properties were acquired from the sale proceeds of alleged drug in the year 2009 and 2010 but no attempt has been made by the appellants to transfer any of the properties and therefore, no inference could be drawn that the appellants would transfer the properties. The counsel contended that proceedings under the PMLA were started in the year 2010-11 and first attachment was made in the year 2011-12 and even during the said period the appellants did not try to transfer any of the properties. Thus there is no reason to believe that appellants will try to transfer them in the future.

32. The counsel submitted that the Adjudicating Authority has dealt with the above objection quite evasively. The above approach of the Adjudicating Authority proceeds on an assumption against the appellants rather than testing the action of the respondent. The complaint and the provisional order have not recorded reasonable belief in writing as mandated by section 5(1) and if any reasonable belief can be inferred, the same is not justifiable and is untenable in law. He contended that the respondent has not stated reasons that led to the formation of belief but reproduced the words and expressions as given in the PML Act. He contended that non-compliance with any of the requirements of section 5(1), each of which are mandatory, render the action of the respondent nugatory.

33. He submitted that the respondent and the Adjudicating Authority needs to show prima facie that their action of attachment is bona fide and valid and also satisfy that the appellants are about to remove or dispose of the whole or part of their properties with the intention of obstructing or delaying the process under PMLA but there are no such facts and allegations discernable.

34. The counsel further submitted that as per the scheme of the PMLA, ultimately the order of attachment is dependent upon the conviction or acquittal of the accused in the scheduled offence. He contended that recovery of possession during the pendency of trial in every case is not warranted. Attachment, an expression defined under section 2(d) preserves the subject property for its ultimate confiscation. Attachment is defined as prohibition on transfer, conversion, disposition, movement of property. Attachment seeks to maintain the status quo qua highly suspected properties which are involved in money-laundering. Section 5(1) of PMLA which provides for precondition of exercise of attachment powers also indicates that attachment is to be made to guard against the eventuality of subject properties being dissipated.

35. The counsel contended that in the cases where confiscation proceedings may be carried out subsequently, by attachment simplicitor, without dispossessing the accused or other persons in the interregnum under section 8(4) of PMLA should be read as discretionary, rather than being mandatory, providing for dispossession. The word shall used therein has to be read as may, and possession should be taken only in those cases where properties are capable of being transferred or dissipated with which may frustrate the ultimate confiscation proceedings and where the possibility of the same would be very high e.g. in the cases of movable properties.

36. He submitted that law is well settled that the word may is Prima facie enabling and permissive. It is no doubt true that rule of interpretation permit the interpretation of the word may in certain context as shall and vice versa. He submitted that the question as to whether statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. He submitted that use of the word shall or must in a particular rule or provision of law does not render that provision mandatory. The sound test for determining whether any particular provision is mandatory or not is to find out from the rules under consideration as to what are the consequences of non-compliance. If non-compliance with any provision said to be mandatory is not visited with any adverse consequences, the provision should be held not to be mandatory but only directory.

37. The counsel for appellants relied upon judgment in the case of P.M. Doraswamy Reddy v. The Election Authority and Director of Marketing, A.P. and others, : AIR 1977 AP 286 and contended that every use of the word shall or must in a particular law does not render that provision mandatory. The counsel also relied on the judgment of Honble Madras High Court in the case of A. Kamarunnisa Ghori vs. The Chairperson Adjudicating Authority PMLA & ors and contended that the Madras High Court had set aside the directions of the Adjudicating Authority to the Enforcement Director to take over the possession. Relevant extract of the judgment is adverted to as follows:

"73. Mr. M. Dhandapani, Learned Counsel for the respondents relied upon the decision of the High Court of Karnataka in W.P. No. 29626 of 2011 dated 10.8.2011. In the said case, a challenge was made to the direction issued by the Adjudicating Authority to the Director to take possession of the property, pending disposal of an appeal before the Appellate Tribunal. In the said case, a learned Judge of the Karnataka High Court held that in view of the provisions contained in Section 8(4) of the Act, possession could also be taken by the Authorities. Having said that, the learned Judge of the Karnataka High Court also pointed out that in case of residential houses where the family members of the accused reside, the Authorities can take only constructive possession, till an appeal is disposed of. In other words, the Karnataka High Court almost come to the same conclusion as I had done, but limited the relief only till the disposal of the statutory appeal under Section 26. Therefore, more than supporting the stand of the respondents, the judgment of the Karnataka High Court tends to support the view I have taken above.

74. Therefore, it is clear that Section 8(4) cannot be understood to confer a power to take actual physical possession. But the respondents, including the Adjudicating Authority, have understood the expression to mean actual physical possession. This is on account of the interpretation placed by the High Court of Andhra Pradesh and hence, the petitioners are entitled to a limited relief, as otherwise, the Adjudicating Authority as well as the Appellate Authority, are obliged to follow only the interpretations given by the Andhra Pradesh High Court with regard to actual physical possession.

75. Before winding up, I must deal with one preliminary objection raised by Mr. M. Dhandapani, Learned Counsel for the respondents as to the maintainability of the above writ petitions, in view of the availability of an alternative remedy of appeal to the Appellate Tribunal under Section 26(1) of the Act. The Learned Counsel also relied upon a judgment of K. Chandru, J., in G. Srinivasan vs. Chairperson {W.P. No. 530 of 2011 dated 1.4.2011} in support of his contention that the petitioners ought to have gone to the Appellate Tribunal under the Act. But I have not accepted the said preliminary objection, in view of the fact that the order of the Appellate Tribunal is ultimately subject to an appeal to this Court under Section 42 of the Act. By the time the petitioners go before the Appellate Authority and thereafter come up before this Court under Section 42, the petitioners would have long lost possession of their properties. In view of the interpretation given by the Division Bench of the Andhra Pradesh High Court to Section 8(4) in their decision in B. Rama Raju vs. Union of India {: 2011(3) ALT 443 (DB)}, both the Adjudicating Authority and the Appellate Tribunal cannot decide the question relating to dispossession. Moreover, the writ petitions were already admitted. Therefore, the petitioners whose writ petitions were already admitted, cannot be driven at the stage of final hearing to take recourse to alternative remedy of appeal under the Act. This is especially so when on the question of entitlement of the respondents to take possession of the properties, the Appellate Tribunal could have hardly taken any independent decision, in contrast to the view taken by the Division Bench of the Andhra Pradesh High Court.

76. Therefore, in fine, I hold that all the contentions of the writ petitioners are bound to fail, except the contention relating to the entitlement of the respondents to take possession of the properties immediately after the orders of the Adjudicating Authority. While the orders of attachment passed by the Deputy Director and the orders of confirmation passed by the Adjudicating Authority are liable to be upheld, the direction issued by the Adjudicating Authority to the Director to take possession of the properties alone is liable to be set aside, in view of the interpretation that I have given to the expression "possession" appearing in Section 8(4) of the Act. Therefore, the writ petitions are allowed to a limited extent, confirming all other portions of the impugned orders of the Deputy Director and the Adjudicating Authority, except the portion relating to actual physical possession. The respondents are directed to put the petitioners back into possession of the properties. However, the legal and constructive possession of the properties shall be deemed to remain with the Deputy Director/Director and the petitioners cannot alienate, encumber or part with possession of the properties until the conclusion of the criminal proceedings against the accused and until the conclusion of the confiscation proceedings that may be taken up after the decision of the Criminal Courts. There will be no order as to costs. Consequently, connected miscellaneous petitions are closed."

38. He submitted that the matter was finally heard by the Adjudicating Authority on 29.07.2013 and the impugned order was pronounced on 10.09.2013. During this time Prevention of Money-laundering (Taking Possession of Attached or Frozen Properties Confirmed by the Adjudicating Authority) Rules, 2013 (hereinafter referred to as Rules) in exercise of powers conferred by section 73 of PMLA in respect of attached properties, the possession of which was to be taken under section 8(4) were notified on 19th of August 2013. He contended that as the Rules were notified after the impugned order was reserved but before the passing of the impugned order, the Adjudicating Authority should have considered these Rules and accordingly should not have directed for taking over the possession of the subject properties. He submitted that all the properties are being used by the appellants for their and their family members residence or their guests and are used for living or family functions. Therefore the possession of these properties should not be taken away till the order of the Court trying for their offense becomes final.

39. The counsel for appellants submitted that an application was filed before the Adjudicating Authority for seeking cross examination of the witnesses relied or referred to in the complaint filed u/s. 5(5) of the PML Act which was rejected by the Adjudicating Authority.

40. It was contended that on the basis of the statements made by the witnesses, the respondent came to an adverse inference against Munir Khan, therefore it was necessary to allow cross examination of such witnesses. He submitted that the Adjudicating Authority erroneously came to the finding that there is no scope for cross examination. He submitted that observation of the Adjudicating Authority that as in the application no specific reason has been given warranting cross examination of witnesses therefore, cross examination may not be necessary, is incorrect. He submitted that in the application it was clearly stated that cross examination is required to find out the truth which will assist in determining the real point of controversy and cross examination also forms part of the rule of natural justice.

41. The counsel submitted that the Adjudicating Authority has violated the principles of natural justice by not affording opportunity to cross examine the witnesses. He submitted that section 6(15) of PMLA provides that the proceedings before the Adjudicating Authority shall be guided by the principles of natural justice. Section 6(15) of PMLA does not exclude the applicability of the provisions of Indian Evidence Act, 1872. Section 137 of the Indian Evidence Act provides for examination-in-chief, cross examination and re-examination. Section 138 of the Indian Evidence Act confers a right on the adverse party to cross examine a witness who had been examined in chief.

42. He submitted that the statement of witnesses were recorded after the statement of Munir Khan and appellants were recorded and as a result Munir Khan and other appellants were not asked to reply on the allegations made by witnesses in their statements.

43. He submitted that the Adjudicating Authority had incorrectly noted that the appellants have failed to discharge the burden imposed on them under section 24 of the PMLA. He submitted that the provisions of section 24 of PMLA applies only to the criminal proceedings initiated under section 4 of PMLA and does not apply to the proceedings under section 5 of section 8 of PMLA. He submitted that the burden will be on the appellants only when respondent discharges it first. He submitted that it is a well settled legal principle that the prosecution has to prove the charges beyond reasonable doubt. In the instant case respondent has failed to prove that the money which is alleged to have been taken from patients whose statements had been recorded, has been used for attachments of the properties. He submitted that therefore the respondent has to prove the allegations and as in the present case respondent has failed to prove the charges therefore, impugned order must be set aside.

44. The counsel for respondent rebutted the pleas and contentions raised on behalf of the appellants and contended that there is no merit in the pleas and contentions raised by the appellants. He submitted that the present action for attachments of properties is in continuation of the attachment of properties made vide earlier attachment orders No. 04/2012 dated 11.07.2012 in original complaint No. 150/2012 and 05/2012 dated 26.09.2012 in original complaint No. 162/2012 which were confirmed by the Adjudicating Authority. He submitted that appeals number FPA-PMLA-423/2012, FPA-PMLA-424/2012, FPA-PMLA-425/2012, FPA-PMLA-426/2012, FPA-PMLA-427/2012, FPA-PMLA-464/2012 and FPA-PMLA-465/2012 filed challenging the attachments were dismissed by this Tribunal vide order dated 01.01.2014. Relying on the above order dated 01.01.2014 of this Tribunal in above appeals, the counsel submitted that the appellants have raised similar grounds in the present appeals as were raised in the above mentioned appeals which were dismissed by this Tribunal, therefore, the present appeals also deserves to be dismissed.

45. He submitted that initial material to start investigation under PMLA is FIR and charge sheet etc. If the accused is charged for the commission of an offence which is in the schedule, annexed to PMLA, the respondent has jurisdiction to begin investigation in the matter. He submitted that this Tribunal will not go into the correctness of the charges for scheduled offence as the same is within the jurisdiction of the competent Court. He drew our attention to paragraph 11 of the Original Complaint which is reproduced below :

"11. Thus the investigations conducted in this case revealed that:

(i) Shri Munir Khan, who was a small time civil contractor at Kota, shifted to Mumbai in 1998-99. He claimed that he had invented a medicine "Body Revival" that can cure any incurable disease. In the year 2003, he established a clinic at Woodstock Bunglow, J.P. Road, Versova, Andheri (West), Mumbai-6 and started practicing as doctor, selling the medicine Body Revival and charging Rs. 15,000/- for a bottle of said medicine from the patients.

(ii) Though Shri Munir Khan was only 12th passed, he obtained Naturopathy Certificate from Bharvins Academy of Naturopathy, Kandivili, Mumbai within two months of joining, by replying the questionnaire sent to his home. This was done in order to impress upon the patients that he is a qualified doctor.

(iii) He had purchased the rights for the interview on Car TV Channel and used it as advertising material on other channels professing therein himself as a Doctor and thereby making viewers believe that his medicine can cure all incurable disease.

(iv) He was subscribing and selling only one medicine "Body Revival" for all types of disease. However, Versova Police in their charge sheet had referred to FDA report which stated that the medicine "Body Revival" did not possess any medicine properties; that the drug Yogiraj/Kukronda contained in the said medicine were banned by the Forest department and that the constituents of the medicine cannot cure any incurable disease and that Shri. Munir Khan had obtained license No. 583-IU dated 18.11.2008 from FDA, Kota, Ajmer, Rajasthan for manufacture and sale of "Body Revival" by providing false information and hence the said license was cancelled on 01.12.2009.

(v) The patients or relatives of the patients purchased the medicine "Body Revival" for Rs. 15,000/- per bottle, under the belief that the said medicine would cure their incurable diseases. However, it was revealed that, after consumption of the said medicine, there was no improvement in the health of the patients and that in some cases the condition of patients worsened.

(vi) Shri Munir Khan charged Rs. 15,000/- per bottle (100 gms.) of "Body Revival" in cash or cheques or demand draft. He was aware that he is not a qualified doctor and that his medicine is not approved by FDA. But he still sold the medicine to the patients who approached his clinic for incurable diseases and collected Rs. 15,000/- for each bottle of the said medicine and thereafter Rs. 15,600/- (inclusive of VAT) and thus cheated the patients.

(vii) The money so earned by sale of the said medicine was parked in the various bank accounts namely account No. 010510110002073 in the name of. Munir Khan Cancer Trust held with Bank of India, Yari Road Branch, Versova, Andheri (West), Mumbai-61, joint account No. 3041931713 in the names of Shri. Munir Khan and Smt. Rukhsana Khan held with Central Bank of India, Seven Bungalows, J.P. Road, Andheri (West), Mumbai-61, joint account No. 010510100009089 in the names of Shri Munir Khan, Smt. Rukhsana Khan and Shri Munish Khan held with Bank of India, Yari Road branch, Versova, Andheri (West), Mumbai-61. the joint account No. 010510110001819 held in the name of Shri Munir Khan and Smt. Rukhsana Khan held with Central Bank of India, Seven Bunglow, J.P. Road Andheri (West), Mumbai-61, account No. 01721000000073 held with Development Credit Bank Ltd., Yari Road, Versova, Mumbai-61, joint account Nos. 01710200000104 and 01710200000514 in the names of Shri Munir Khan and Smt. Rukhsana Munir Khan held with Development Credit Bank Ltd., Yari Road, Versova, Mumbai-6, joint account Nos. 01710200000532 in the names of Shri Munish Khan and Shri Munir Khan, joint account No. 00191000251908 in the name of Shri Munir Khan and Smt. Rukhsana Khan held with HDFC Bank Ltd., Versova, account No. 01190021074 held with state Bank of India, account No. 00198630000061 held with HDFC Bank, Kota etc.

(viii) Shri Munir Khan in his statement dated 1.3.2011 and Shri Munish Khan in his statement dated 28.2.2012 had stated that Shri Munir Khan had no other source of income and that the source of funds for all the properties in his name and in the name of his family members was the income generated from sale of the medicine only. In his statement dated 1.3.2011 Shri Munir Khan further stated that the details of his further properties would be provided by his son Shri Munish Khan.

(ix) Shri Munish Khan in his statement dated 2.1.2013, recorded u/s. 50(2) of the Prevention of Money Laundering Act, 2002, have stated that he himself, his brother Shri Sarosh Khan and his sister Mrs. Zeenat Khan had applied for the flats with the Rajasthan Housing Board and that the funding for the purchase of the said flats was sponsored by his father Mr. Munir Khan.

(x) The proceeds of crime so earned was laundered by depositing the same in the above said accounts and the same were utilized for the purchase of immovable properties for the purpose of further layering and integration to show them as untainted properties.

(xi) Scrutiny of the above mentioned accounts revealed that there are regular deposits of Rs. 15,000/- and thereafter Rs. 15,600/- (inclusive of VAT). Some of the witnesses who have been examined inter alia stated that the amount of Rs. 15,000/- is the amount they paid for getting.

(xii) g/purchase of one bottle of medicine "Body Revival". Thus, it is revealed that deposits in these accounts are by way of sale of medicine "Body Revival". Investigations revealed that the amounts so received by sale of the said medicine and deposited in the above said accounts has been utilize for the purchase of the above properties.

(xiii) The entire payments for the purchase of properties mentioned at Sr. No. 8(i) to 8(iii) were made from the accounts held singly or jointly by Shri Munir Khan or his company Health reactive.

(xiv) In this case, the proceeds of crime to the tune of Rs. 84,92,781/- parked in the accounts held with Development Credit Bank, Bank of India and HDFC Bank has been utilize by Shri Munir Khan in the purchase of properties at Sr. No. 8(i) to 8(iii) above in the name of his sons namely Shri Sarosh Khan and Shri Munish Khan and his daughter Mrs. Zeenat Khan.

(xv) Shri Munish Khan and Shri Sarosh Khan has actively indulged them self and helped Shri Munir Khan in the money laundering and the purchase of the above said properties and thereby to project the tainted money as untainted money."

46. He submitted that section 467 of IPC was in the PMLA even prior to 1.6.2009 and section 420 and 471 were added to the PMLA by the Prevention of Money Laundering (Amendment) Act, 2009 which came into force w.e.f. 1.6.2009. He contended that for the purpose of determining the applicability of the provisions of PMLA, it is the date on which charge sheet is filed which is relevant and in the present case charge sheet was filed on 6.7.2010 which is after 1.6.2009 and thus on the day the charge sheet was filed, offences under section 420 and 471 of IPC were already scheduled offence under PMLA. The counsel relied on the judgment of the Andhra Pradesh High Court in the writ petition in the case of V. Suryanarayanan Prabhakar Gupta v. Union of India where similar question was answered in the favor of the respondent and petition was dismissed. He also relied on the judgment of the Honble High Court of Jharkhand at Ranchi in W.P. (CR) No. 325 of 2010 in the case relating to Hari Narain Rai v. UOI, relevant part of the judgment is reproduced below:

"5. Thus in substance, the argument is that the money alleged to be acquired will not fall within the definition of proceeds of crime because the acts leading to its generation were not amongst the offences listed in the Schedule, as it stood on the date when those acts were committed.

6. The argument is hence misconceived. The reason is that, what is being targeted by Section 3 and another provision of the Act is the laundering of money acquired by committing the scheduled crimes and, therefore, it would be the date of laundering which would be relevant. The laundering as used in Section 3 comprises of involvement in any process or activity by which the illicit money is being projected as untainted.

7. Thus, the relevant date is not the date of acquisition but the dates on which such money is being processed for projecting it as untainted.

8. At this stage, we are concerned with the allegations, and not with the consideration whether the allegations will ultimately be proved or not. It has been argued from the respondents side, relying upon various allegations about acts of omission and commission, that attempt is still going on for laundering the money acquired illicitly, by way of showing the same to be the legitimate income of persons closely related to the petitioner.

9. In the circumstances, I am of the view that the petitioner is not being prosecuted merely for any act which was not a scheduled offence on the date it was committed".

47. The counsel submitted that though Munir Khan was selling one bottle of "Body Revival" for Rs. 15,000/-, but it would be incorrect to presume that one patient purchased only one bottle. He submitted that though statements of 66 witnesses were recorded by the respondent but 143 people had filed complaints against Munir Khan stating that due to the alleged medicine "Body Revival", their condition and condition of their relatives (whosoever was the patient) had worsened. He submitted that for the purposes of proper appreciation of the total value involved in the offence, it would not be correct to consider the sale price of one bottle of the medicine "Body Revival" but the total sale consideration received by the accused in his personal name, in the name of his proprietorship firm Health Reactive, in the names of his family members and in the name of Munir Khan Cancer Trust etc. He contended that the total sale consideration received by the accused in the name of all the beneficiaries is more than 30 lakh and this fact is also admitted by the appellants. He submitted that the entire proceeds of crime which is generated from the commission of offence is to be considered and not proceeds of one particular individual transaction. The agency investigating scheduled offence may not quantify finally the entire quantum proceeds of crime, since the investigation is to find out whether offence has been committed or not.

48. The counsel submitted that as regards formation of belief under section 5 and 5(1)(c) of the PMLA, Munir Khan has by committing schedule offences generated proceeds of crime which were received in cash as well as by cheque; these proceeds were deposited in the bank accounts maintained in the name of Munir Khan and his family members and Munir Khan Charitable Trust. Thereafter, these proceeds were, with the intention of integration and layering, invested in different properties. He contended that if the appellants had not transferred the properties in the past, it does not show that the same shall not be transferred in future. He submitted that once the accused persons know that properties are being subjected to attachment and confiscation proceedings, there is likelihood that the appellants would attempt to conceal, transfer, dissipate and commit waste of the properties to frustrate the attachment/confiscation. He further submitted that one of the important object of the PMLA is to deprive the perpetrators of the schedule offence from the enjoyment of the fruits of the crime. If the properties are not attached and appellants are allowed to enjoy the properties, the object or purpose of the PMLA will be negated. The counsel pointed out that the documents of immovable properties have been seized by the Income Tax Department as confirmed by Munish Munir Khan in the statement recorded by respondent u/s. 50 of the Act on 13.2.2012. There are transactions of withdrawals from bank account after the filing of charge sheet in July 2010 and therefore, the submissions made by appellants that there is no attempt to draw any money from bank account since filing of charge sheet is not correct.

49. The counsel for respondent submitted that there is no provision in PML Act for allowing cross examination of every person whose statement is recorded under section 50 of the Act. He drew our attention to section 8 of the PML Act and pointed out that Adjudicating Authority has no power to allow cross examination. He relied on the principal laid down by the Delhi High Court in judgment dated 24.1.2013 in WP (C) 401/2013 & CM No. 802/2013 in the case of Shahid Balwa v. The Directorate of Enforcement wherein it was held that "Mere denial to cross-examination of person by Adjudication Authority shall not result in breach of principles of natural justice". The counsel also relied on the judgment of this Tribunal passed on 26.8.2010 in the case of Jitender Kumar Jha v. Enforcement Director in FPA-51/Cal/2010 in which while dismissing the appeal, this Tribunal held that as the attachment proceedings are interlocutory in nature to protect the property from dissipation, alienation, transfer etc. and another opportunity will be granted to the appellants at the stage of forfeiture of property, therefore, it is not necessary for summoning witnesses at the stage of attachment for the purpose of cross examination. The counsel submitted that PML Act is a special enactment with the objective of prevention of money laundering, attachment and confiscation of property acquired out of proceeds of crime/involved in money laundering. In the first stage property is provisionally attached and a complaint is filed with the Adjudicating Authority for confirmation. The order of provisional attachment is valid for a limited period as contemplated under the statue and during this period complaint is filed by respondent and after giving opportunity in accordance with the relevant provision, if the Adjudicating Authority prima facie finds that the property is acquired out of proceeds of crime/involved in money laundering, it can confirm the attachment. The final confiscation takes place after the trial for commission of scheduled offence/money laundering offence is over and a person is found guilty. He submitted that appellants would be provided another opportunity to prove their case before final confiscation of the property. In view of the scheme of the PML Act, no opportunity for cross examination every witness can be allowed at this stage, therefore there is no infirmity in the order of the Adjudicating Authority in not allowing opportunity to cross examine. He submitted that the appellants did not disclose necessity/purpose or relevancy of cross examining witnesses. No specific facts were disclosed in the application which necessitated cross examination which will de-facto or de-jure prejudice the appellants. The counsel submitted that the application to allow cross examine witnesses was only a ploy of the appellants to delay the adjudication proceedings. He contended that the order cannot be impugned in the facts and circumstances on this ground by the appellants.

50. He submitted that the statement of witnesses were recorded in the year 2010 and statements of the appellants were recorded subsequently in the year 2011. He drew our attention to the copy of index giving description of documents relied upon in the original complaint and pointed out that the details of statements of witnesses recorded in 2010 is mentioned from serial number 4 to serial number 17 and details of statements of the appellants recorded in the year 2011 are mentioned from serial number 18 to serial number 23. He contended that details show that the statements of appellants were recorded after the recording of statements of witnesses.

51. He submitted that the final hearing in the original complaint was concluded on 29.07.2013 and the rules in respect of taking of possession of the attached properties were notified on 19th of August 2013, therefore the same could not be considered by the Adjudicating Authority as they were not before the Adjudicating Authority during the course of hearing of the complaint as they were notified later. As regards interpretation of the word shall as may the counsel relied upon the findings returned by the Adjudicating Authority in paragraph 12 of the impugned order and submitted that the word shall denotes mandatory requirement in the law and there are no reasonable and sufficient reasons to interpret the word shall as may. The counsel for respondent further contended that the word "shall" in section 8(4) of PMLA has to be read as "shall" and the provisions are mandatory provisions. He submitted that one of the main objects is to deprive the accused person or his relatives/associates from possession/enjoyment of the proceeds of crime/properties involved in money laundering.

52. He submitted that the burden of proof under section 24 of the PMLA is on the accused person. He submitted that the PMLA is a special Act which provides for reverse burden of proof. He submitted that a person who is in possession of proceeds of crime involved in money-laundering has to prove that the property has been acquired out of licit means. He submitted that the plea of the appellants that respondent has to discharge burden of proof first only then appellants can be asked to prove, is contrary to scheme and the provisions of PMLA and therefore liable to be rejected.

53. He submitted that the plea of the appellants that provisions of section 24 of PMLA are applicable only in criminal proceedings is also against the provisions of law as contained in section 24 of the Act.

54. This Tribunal have heard pleas and contentions raised by both the parties and perused the documents placed on record. Munir Khan in his statement stated that he has studied only upto XIIth standard. Since 1986 he was preparing ayurvedic medicines to treat people. In the beginning he was living in Kota where he was treating people with his ayurvedic medicines. Later in 1998-99 he shifted to Mumbai with the intention to give his medicines to patients in Mumbai. Articles about him and his medicine were published in newspapers and he also gave interviews on TV which resulted in wide publicity and he started getting large number of patients and he started charging Rs. 15,000/- for a bottle of medicine "Body Revival". He appointed girls for attending people making enquiries about his medicine and also appointed a few Ayurvedic and Homeopathic doctors to attend to patients. These doctors were told to check the patients case history and then he used to prescribe the dosage and duration of the medicine to be taken by the patient. He used to make the medicine at home and total weight of the bottle with medicine used to be 150 gms. People used to pay for the medicine by cash, cheque or demand draft, these amounts used to be deposited in his and his family members accounts. He started Munir Khan Charitable Cancer Trust to get income tax benefit and to get the land at concessional rate from the Government. He asked patients to give cheques/drafts in the account of Trust and he also used to deposit cash received in the Trust account. All the amounts deposited in his or his family members accounts in various banks were from sale of medicine to his patients. In the year 2008 he appointed more homeopathic and ayurvedic doctors to check the patients case history for the satisfaction of patients and to know the size of tumor in case of cancer or percentage of blockage in case of heart diseases. He obtained a Naturopathy Certificate from Bharvins Academy of Naturopathy, Mumbai within two months after allegedly studying from home and he did not attend any formal classes anywhere.

55. Perusal of charge sheet reveals that certain documents were seized from the clinic of Munir Khan which includes NOC/consent letter taken from patients on which it was stated that there was no guarantee that the medicine will have the desired effect and the money which would be claimed back, would be restricted to the amount of medicine remaining in the bottle; letter heads of Health Reactive on which 9 prescriptions signed by the lady doctors without name and date etc. so that they can be used as prescription by putting name of patient and date were also recovered. It was alleged that though Munir Khan had claimed in his interview telecast over TV that his medicine could cure cancer, heart blockage, kidney etc. and if no improvement is noticed, he will refund all the money paid but copies of NOC/consent letter show that his claims were false and in this manner he had cheated the people. It was alleged that Munir Khan appointed recently graduated Ayurvedic and Homeopathic doctors and explained to them to prescribe the medicine "Body Revival" to a patient, whether male or female, having any disease. The alleged medicine was prescribed to be taken in same manner and this modus operandi is conspicuous from the recovery of blank prescription signed by these doctors which do not contain name of patient, his/her malady and date.

56. Perusal of charge sheet further reveals that Munir Khan claimed to have a certificate that he was doctor of naturopathy. On investigation this certificate was found to be false and was issued by alleged Bharvins Academy of Naturopathy, which was run by one, Shri Ravishankar Joshi, aged 80 years from his residence, in a room admeasuring 10 x 10 and without any power or authorization to issue such certificate. The said certificate was issued after taking Rs. 3,500/- from Munir Khan. Similarly Sarosh Khan had also acquired an alleged doctor degree from the same Institute. Munir Khan became doctor in 2 months and his son in 16 days. Charge sheet further revealed that many other documents were also found to be false which were fabricated and obtained by manipulation. Many of the documents relied on by the appellants were either cancelled or withdrawn by the issuing authority which facts were also not disclosed correctly by the Appellants.

57. Munir Khan also disclosed that in the year 2008, he had applied for a license to manufacture and sell ayurvedic, unani and siddha medicines to the Licensing Authority and Director of Ayurveda, Ajmer, Rajasthan with respect to a manufacturing facility set up at 2-KHA-1(A), Vigyan Nagar, Kota, Rajasthan in the name and style M/s. Health Reactive. A license bearing number 583-AYU was issued which was valid from 16.04.2008 to 15.04.2011 for the manufacture and sale of medicines. Munish Munir Khan in his statement confirmed that his father Munir Khan used to manufacture medicine at home and as per advise of their advocate, they applied for license to manufacture and sell alleged medicine and got license number 583-AYU. There was no other source of income of his father other than selling alleged medicines and all the deposits including cash in the bank accounts of Munir Khan, Munir Khan Cancer Trust and other family members are payments received on account of sale of alleged medicine viz. "Body Revival".

58. Though the counsel for appellants stated that Munir Khan was having license number 583-AYU to manufacture and sell medicines including "Body Revival" which was valid for the period from 16.4.2008 to 15.4.2011 and also filed copy of license in Form 25D which is placed in the paper book. Perusal of the copy filed by appellants reveals that the same is not certified by the appellants to be true copy of the license. The said license authorizes M/s. Health Reactive to manufacture medicines as per the list appended with the license but this list appended to license has not been produced/filed by the appellants before this Tribunal. No cogent reasons have been given for non-production of the same. The license permits manufacture of medicine under the direction and supervision of the technical staff i.e. Sh. Kailash Dutt Sharma and Sh. Bhawani Shankar. Though it was submitted by the appellants that specific product approval for manufacture of "Body Revival" was received on 16.11.2008 but no such document has been filed/brought to our notice by the counsel for appellants. The appellants have stated that the license number 583-AYU was cancelled on 01.12.2009 which was subsequently revived and which was again cancelled and recently revived on 09.04.2013 with a modified formula. Perusal of charge sheet reveals that on enquiry by police from Shri Kailash Dutt Sharma in Kota, Rajasthan, who rather stated that he did not know Munir Khan and had never worked as his technical staff. On 17.11.2009, police team visited purported factory premises at 2/KHA, Kota, Rajasthan and it was found that the said premises was a bunglow and not a factory and not used for manufacturing purpose. It also transpired that the said premises was lying closed for the past 6 months. On 24.12.2009, police party again visited Kota, Ajmer, Rajasthan and made enquiries at the premises. In the premises, Shri Liyakat Khan was found staying on rent since 27.11.2009. Thus apparently the information given by Munir Khan for obtaining license was false. The "Anugyapan Office Rajasthan" on 01.12.2009 has also cancelled the license issued to Munir Khan.

59. The appellants have filed copy of a report of Clinical Trial of "Body Revival" for conducting clinical trial on humans. This report is signed by two doctors Dr. Rama Julka, AMO and Dr. Ajay Mahajan, SDAMO of Govt. Ayurvedic Hospital, Nalagarh, Solan, H.P. The report comprises of 10 pages. Perusal of report reveals that only one page is signed by the issuing doctors and other pages are neither signed nor authenticated, though there is specific column "Date when clinical trial started:" but no date is mentioned to indicate start of clinical trial, date of completion of clinical trial is given as 03.11.2009. The report is very sketchy and apparently is unreliable. One thing that can be noted from this report is that clinical trial was allegedly concluded only on 03.11.2009.

60. All the above facts show that during the relevant time when the appellants made payments towards sale consideration for acquiring properties, Munir Khan was not having any license to manufacture and sell the alleged medicine "Body Revival"; alleged medicine/concoction was prepared at home by Munir Khan as stated by him and Munish Munir Khan in their statements. Munir Khan falsely projected himself as a doctor and scientist and falsely claimed the alleged medicine "Body Revival" capable of curing various incurable diseases completely. He sold the alleged medicine to a large number of patients knowing that the alleged medicine will not heal them and he was also not authorized and was not competent to prescribe medicines to patients. The above facts prima facie show that Munir Khan and others are charged for commission of offences which are in the schedule annexed to the PMLA. Whether the charges will be sustainable ultimately in the Criminal Court is not to be adjudicated by this Tribunal. The appellants have also not approached any competent Court for quashing of charge sheets or the charges framed against them.

61. The contention of the appellants that provisions of PMLA are not attracted as the offences under section 420 and 471 of IPC were added in the Schedule of PMLA by the Prevention of Money Laundering (Amendment) Act 2009 which came into force w.e.f. 1st June, 2009 and FIR for predicate offences in the present case was lodged on 29.4.2009 and charges against Munir Khan are mainly in respect of offence u/s. 420 of IPC is also not sustainable. After careful consideration of the facts of the case and FIR/charge sheet this Tribunal is of the opinion that there is no doubt that Munir Khan and others have been charged for various offences inter-alia u/s. 420, 467 and 471 of IPC. Offence u/s. 467 of IPC was in the Schedule of PMLA even prior to 1.6.2009. Whether the charges will be sustainable ultimately in the Criminal Court is not to be adjudicated by this Tribunal. The appellants have also not approached any competent Court for quashing of charge sheets or the charges framed against them. Thus for this reason it is to be inferred that the appellants are covered for attachment proceedings under the provisions of PMLA.

62. Further, even if it is taken into consideration that the offences u/s. 420 and 471 of IPC were added in the schedule of PMLA w.e.f. 1st June 2009, the appellants would still be covered for attachment proceedings under the provision of PMLA for the following reasons which have been approved in some of the cases. A similar question came for consideration before Andhra Pradesh High Court in W.P. No. 27898 of 2010 in the case of V. Suryanarayhana Prabhakara Gupta and Anr. v. Union of India and others. In this case, the aggrieved person had contended that under the Schedule to the PML Act, offences under Sections 120B and 420 Indian Penal Code were not included at the time when the said offences were alleged to have been committed and hence, the question of proceeding against the aggrieved persons under the provisions of the PML Act, would not arise. It was contended by the learned Counsel for the aggrieved persons that the crime was registered against the 1st Petitioner on 09.01.2009 under Section 420 Indian Penal Code and as on that date, the said offence under Section 420 Indian Penal Code was not forming part of the Schedule appended to the PML Act and thus the question of registering a case under the PML Act against the 1st Petitioner, would not arise. The learned Counsel in the said case had further submitted that the CBI had filed its charge sheet against the 1st Petitioner (arraying him as A-10) on 22.11.2009 and the charge sheet clearly mentioned that the 1st Petitioner therein has been charged for the offence said to have been committed by him under Section 120B r/w Section 420 Indian Penal Code only and that an amendment of the Schedule appended to the PML Act has been brought into force on 01.06.2009 incorporating offences of Sections 120B and 420 Indian Penal Code therein. Therefore, as on the date when the C.B.C.I.D. registered the crime on 09.01.2009, offences under Sections 120B and 420 of Indian Penal Code not having been included in the Schedule appended to the PML Act, the amendment brought on 01.06.2009 incorporating those offences would amount to an ex post law and hence, the petitioners cannot be charged under the PML Act at all. By judgment dated 25.08.2011, Honble Andhra Pradesh High Court dismissed the petition and had held that since charge was framed against 1st Petitioner by C.B.C.I.D., on file of Additional Chief Metropolitan Magistrate alleging him to have committed offences punishable under Section 120B r/w Section 420 of Indian Penal Code, on 22nd November 2009, therefore, after that date, offense punishable under provisions of IPC, in hands of 1st Petitioner, could be subjected to action under Section 5 of 2002 Act. Moreover, provisional attachment order had been passed after 22nd November, 2009, therefore, action initiated under Section 5 of 2002 Act against 1st Petitioner could not be faulted. To hold so, the Honble Andhra Pradesh High Court also referred to and relied upon the principals enunciated in judgment of division bench of that court in the case of B. Rama Raju and Ors. v. Union of India, Ministry of Finance, Department of Revenue, Rep. by its Secretary (Revenue), New Delhi and Others : 2011(3) ALT 443 (D.B.). Relevant extracts of the Andhra Pradesh High Court judgment in V. Suryanarayhana Prabhakara Gupta (supra) are adverted to as follows :

"7. Before I proceed any further, it would be apt to remind oneself that at this stage of the matter, it would be wholly inappropriate to examine the tenability or otherwise of the proceedings initiated under Section 5 of the PML Act. The only question that can be examined is whether the 1st Petitioner can be proceeded under Section 5 of the PML Act, for an offence alleged to have been committed by him prior to 01-06-2009, the date on which the Schedule appended to the PML Act has been amended.

8. The objects and reasons for enacting the PML Act, have been clearly spelt out. It is pointed out that the Political Declaration and Global Programme of Action, annexed to the resolution S-17/2, was adopted by the General Assembly of the United Nations at its seventeenth special session on the 23rd February, 1990. Further, the Political Declaration adopted by the special session of the United Nations General Assembly held between 8th to 10th June, 1998, calls upon the Member States to adopt national money-laundering legislation and programme.

9. As a part of this commitment, this enactment has been made by the Parliament, providing for a completely self contained code of procedure for recognizing and penalizing the offence of money-laundering and also to tackle the proceeds of crime if they eventually percolate into various financial streams of the country, thus, impacting fiscal and economic agendas set forth by the State for its governance. It would be further appropriate to notice that the Financial Action Task Force on Money Laundering (FATF), an intergovernmental body was established by the G-7 Summit that was held in Paris in 1989 and it was assigned with the task of setting standards and promotion of policies to combat the issues relating to money-laundering and terrorist funding, during 1990 drew up forty recommendations-as initiatives to fight the malice of money laundering and terrorist funding-important amongst them are:

criminalise money laundering and enable authorities to confiscate the proceeds of money laundering,

implement customer due diligence (e.g. identity verification), record keeping and suspicious transaction reporting requirements for financial institutions and designated non-financial businesses and professions,

establish a financial intelligence unit to receive and disseminate suspicious transaction reports, and

cooperate internationally in investigating and prosecuting money laundering.

10. These recommendations have been updated regularly and periodically, of late, India has been facing, on a regular periodicity, terrorist attacks. Hence, it needs to arm itself with an appropriate toolkit for a rigorous law enforcement to track and tackle the funding behind such attacks. These efforts led to this enactment.

11. Chapter-II of the PML Act defined the offence of money laundering and provided the punishment therefore in Sections 3 and 4 incorporated in the said Chapter. Section 3 declares that, whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime and projecting it as untainted property, shall be guilty of offence of money-laundering. Section 4 declares that whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term, which shall not be less than three years, but which may extend to seven years and shall also be liable to fine, which may extend to five lakh rupees. From the definition of offence of money-laundering contained in Section 3 of the PML Act, it becomes clear that, whosoever directly or indirectly attempts to indulge or becomes a party or gets involved in any process or activity or activity connected with the proceeds of crime and projecting it as untainted property, shall be guilty of the offence of money-laundering. The two crucial expressions used in the said Section 3, which are relevant for our inquiry are "proceeds of crime" and "property". These two expressions have been defined under Section 2(u) and 2(v) of the PML Act, as under:

(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;

(v) "property" means any property or assets of every description, whether corporeal or incorporeal, movable or immovable, tangible or intangible and includes deeds and instruments evidencing title to, or interest in, such property or assets, wherever located.

12. Since the definition of "proceeds of crime" in turn used the expression "scheduled offence", it would also be appropriate to notice as to how the said expression has been defined in Section 2(y):

(y) "scheduled offence" means-(i) the offences specified under Part A of the Schedule; or

(ii) the offences specified under Part B of the Schedule if the total value involved in such offences is thirty lakh rupees or more;

13. From a conjoint reading of the expressions "proceeds of crime" and "scheduled offence" as defined, the offence must be one that should find a mention either under Part A or Part B of the Schedule appended to the PML Act. Para 1 of Part A of the Schedule listed out the offences under the Indian Penal Code. It is not in dispute that by the Prevention of Money-Laundering (Amendment) Act, 2009 (Act No. 21 of 2009), amongst other things, para 1 of Part A of the Schedule has been amended introducing the offence under Section 120-B: criminal conspiracy, and offence under Section 420: cheating and dishonestly inducing delivery of property, therein. It is further not in dispute that the amending Act No. 21 of 2009 has been brought into force with effect from 01-06-2009. Therefore, it does not pose any difficulty that post 01-06-2009, any property derived or obtained, by any person, as a result of criminal activity, relating to offences punishable under Sections 120-B and 420 Indian Penal Code, can be dealt with under the PML Act.

14. It will be appropriate at this stage to notice that Chapter-III of the PML Act dealt with the process of attachment, adjudication and confiscation of the proceeds of the crime.

15. As was noticed supra, the PML Act is not only intended to create and provide for prohibitive measures, but also intended to put in place regulatory mechanism, so as to arrest the impact of proceeds of crime denting, in any manner, the fiscal and economic agenda of the State. If I may say so, the Act has provided for two distinct and separate branches of action. Chapter-II dealt with the conduct, which constitutes the offence and provided for the appropriate punishment therefore, while Chapter-III dealt with the regulatory aspects of the proceeds of the crime, enabling them to be subjected to attachment and adjudication and leading to their ultimate confiscation to the State. Therefore, if Chapter-II can be characterized as dealing with the criminal facets of the conduct, the provisions in Chapter-III are essentially intended to deal with the aspects to deny certain persons from deriving benefits either knowingly or unknowingly, arising from the proceeds of crime. But, for the provisions contained in Chapter-III, the proceeds of crime could not have been dealt with at the initial stages itself. These two aspects are completely distinct and separate. Chapter-III, therefore, had to deal first with the immediate action that is required to be taken in the matter by ordering for provisional attachment, and then, seeking the process of adjudication, which might lead to ultimate confiscation of such proceeds. Otherwise, the proceeds of the crime continue to impact the financial streams of the society.

16. Before analysing the provisions contained in Section 5 included under Chapter-III of the PML Act, it will be appropriate to notice the definition assigned to the word "attachment" under Section 2(1)(d), which is to the following effect:

(d) "attachment" means prohibition of transfer, conversion, disposition or movement of property by an order issued under Chapter-III;

Sub-section (1) of Section 5 authorises the Director, appointed in terms of Sub-section (1) of Section 49 of the said Act by the Central Government, if he has reason to believe, on the basis of material in his possession that;

(a) any person is in possession of any proceeds of crime;

(b) such person has been charged of having committed a scheduled offence; and

(c) such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime under this Chapter;

by order in writing, to provisionally attach such property for a period not exceeding one fifty days from the date of the order.

17. However, the following conditions are required to be satisfied before a provisional attachment order is passed by the Director or any other Officer authorised by him occupying a rank not below that of a Deputy Director;

(1) There should be adequate material before such Officer, which makes him believe that if the attachment of the proceeds of crime are not ordered, it might result in frustration of the confiscation.

(2) A person must be in possession of the proceeds of crime;

(3) Such person must have been charged of having committed one or the other of the scheduled offences under this Act;

(4) Such proceeds of crime are likely to be concealed or transferred or dealt with in any manner, which may result in frustrating any proceedings of their ultimate confiscation.

18. In the instant case, with effect from 01-06-2009 Sections 120-B and 420 Indian Penal Code have been incorporated in para 1 of Part A of the Schedule. Therefore, the proceeds of such crime are capable of being dealt with under Section 5, provided, of course, such person, who is in possession of the proceeds of crime, should have also been charged of having committed the said offence under Sections 120-B and 420 Indian Penal Code after 01-06-2009. As was already noticed, a charge was laid against the 1st Petitioner by the C.B.C.I.D., in C.C. No. 187 of 2009 on the file of the XIV Additional Chief Metropolitan Magistrate, Hyderabad, alleging him to have committed offences punishable under Section 120-B r/w Section 420 Indian Penal Code, on 22-11-2009. Therefore, after 22-11-2009, the proceeds of crime punishable under Sections 120-B and 420 Indian Penal Code, in the hands of the 1st Petitioner herein, are capable of being subjected to action under Section 5 of the PML Act. As was already noticed, the provisional attachment order has been passed only on 21-10-2010, which is long subsequent to 22-11-2009."

63. In the present case also, the charge sheet No. 1521/PW/2010 was filed on 06.07.2010 in the court of MM, Railway Mobile, Andheri East, Mumbai which inter-alia included offences under section 420 and 471 of Indian Penal Code against Munir Khan and others and provisional attachment order No. 04/2013 was passed on 14.03.2013 which events are subsequent to 01.06.2009, therefore, following the ratio laid by the Honble Andhra Pradesh High Court in the case of V. Suryanarayhana Prabhakara Gupta (supra) and for the above stated reasons it is held that even on this ground, the appellants are covered by the provisions of PMLA and attachment proceedings initiated by the respondent u/s. 5 of the PMLA are valid proceedings and the appeals filed by the appellants cannot be allowed on this ground.

64. As regards the contention of the appellants that the total amount involved in the offence is much lower than the limit of Rs. 30 lakh prescribed u/s. 2(y)(ii) of PMLA as the total amount involved in crime as per FIR is Rs. 15,000/- which is sale value of one bottle of "Body Revival", the argument of the appellants has no force. All the facts and circumstances of the case unequivocally show that the offences were not committed only on a particular day or against a particular person. The offences were committed against large number of persons over a long period of time on continuous basis in pursuance of a larger criminal conspiracy hatched by the perpetrators of the crime and therefore, must be considered from a larger perspective as a continuing offence. The entire proceeds collected over the years from sale of "Body Revival" has to be considered for ascertaining applicability of the provisions of PML Act and not the sale proceed of one bottle or sale proceeds of one bottle each received from those persons who filed specific complaints as contended by the appellants. The contention of the appellants that there is no demarcation as to how much money was earned by committing which offence as charge sheet is filed for commission of various offences and only some of the offences are scheduled offences, is not acceptable. It is not the case of the appellants that each offence generated separate amount of proceeds of crime and the same is accounted for separately for each offence. The fact remains that purpose of the same offence committed with different persons was to make them believe that the accused Munir Khan has a miracle medicine which can cure incurable disease and to tempt them to buy the alleged medicine "Body Revival" and thus cheated them and generated proceeds of crime. Under section 24 of the Act, burden was on the appellants to prove that the properties provisionally attached were not acquired out of proceeds of crime generated from commission of schedule offence. There is no dispute that total amount of sale consideration received in the names of appellants for sale of "Body Revival" is much more than 30 lakhs. Thus, the provisions of PMLA are applicable in the present cases and the contention of the appellants that the total proceeds of crime is not more than Rs. 30 lakhs cannot be accepted.

65. It is also relevant to note that The Prevention of Money Laundering (Amendment) Act 2012 which came into force with effect from the February 2013 substituted Part A of the schedule to the Act and as a result now there is no minimum amount prescribed under section 2(y) of the Act for offenses u/s. 420, 467 and 471 of IPC to be scheduled offence. The provisional attachment order number 04/2013 has been passed on 14 March 2013 which is after the amendment which came into effect on 15.02.2013 and in the light of these amendments the counsel for appellants has not raised any plea in respect of said attachment order.

66. As regards contention of the appellants that there are no reasons to believe u/s. 5(1) of PMLA that the properties were likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime under the PMLA especially in view of the facts that none of the immovable properties were transferred by the appellants and appellants never attempted to alienate any of these properties is also not acceptable. The plea of the appellants is based on the narrow perception of the provisions of the Act. Considering the provision of the Act in its entirety along with the scheme of the PMLA, it is apparent that the argument is without ration and has no substance. Section 5 of the PMLA is to be considered as a whole read together with other provisions of PMLA. When clauses (a) and (b) of sub-section (1) of section 5 are read together, it is apparent that at this stage proceeds of crime are provisionally attached so that they are available for adjudication and confiscation proceedings under the Act which will be at a later stage. A reading of provisions of section 5(1)(b) of PMLA alone will not give the entire scope of the provisions and in such situation the accused person may content that as there is no attempt to transfer the property till date, therefore, there is no reason to believe that the property will be transferred or alienated in future. If we accept this argument, it will lead to a situation where the Enforcement Directorate must wait for transfer of a property so that there will be reasons to believe but in that case the property would already be transferred/alienated and it will lead to frustration of the proceedings relating to attachment, adjudication and confiscation of proceeds of crime. Such an interpretation of the provisions of section 5(1)(b) of PMLA will render the provisions of the PMLA meaningless and unworkable. However, if the provisions of section 5(1)(b) of PMLA are read with provisions of section 5(1)(a) and other provisions of PMLA which state that if a person is in possession of proceeds of crime and such person has been charged for commission of a scheduled offence; the proceeds of crime are subject to attachment and confiscation; then the accused is also to be deprived from enjoyment of the proceeds of crime etc.. The restrictive interpretation as canvassed by the Appellants will defeat the entire tenor of the provisions of section 5 of PMLA and will make it otiose. When the reasons to believe that the proceeds of crime are likely to be concealed or transferred is preceded by reasons to believe that a person is in possession of proceeds of crime which are liable for attachment and confiscation under the provisions of PMLA and on attachment/confiscation such proceeds of crime will no longer be available to him for his/her enjoyment, then a reasonable person will undoubtedly have reasons to believe that such person will make an attempt to conceal, transfer or deal with the properties in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime. Therefore, considering the entire facts and circumstances of the case, it is apparent that there are sufficient reasons to believe by respondent u/s. 5(1)(b) of PMLA. Reliance is also placed on the findings of this Tribunal in the order dated 01.01.2014 passed in appeals filed against impugned order passed in OC No. 150/2012 and OC No. 162/2012, dismissing the plea raised by the appellants that there is no transfer of funds from the bank accounts since the filing of charge sheet on 6.7.2010, as this Tribunal had held as follows :

"At this stage it is important to mention that though in his arguments the counsel for appellants contended that since the filing of charge sheet on 6.7.2010, no amount has been drawn from the bank accounts but copy of saving bank account No. 010510100009089 with Bank of India in the name of Munir Khan filed by the appellants with the appeal at page 751 discloses that there are various withdrawals from the account after the date 6.7.2010. Similarly bank account No. 01721000000073 with Development Credit Bank in the name of Munir Khan on page 878 and bank account No. 3041931713 with Central Bank of India in the name of Munir Khan on page 957 disclose that there are various withdrawals from the accounts after the date 6.7.2010."

The plea of the appellants that there is no transfer of any property since filing of charge sheet is therefore, also rejected and the appeals of the appellants cannot be allowed on this ground also.

67. As regards not allowing appellants to cross examine the witnesses and an erroneous finding by the Adjudicating Authority, provisional attachment order No. 4/2013 was passed on 14.3.2013 and it was valid till 10.09.2013. Thereafter, Original Complaint No. 183/2013 dated 10.04.2013 u/s. 5(5) of the PML Act was filed before the Adjudicating Authority and thereafter hearing of the matter took place from time to time. Perusal of copy of application dated 26.06.2013 filed by the appellants before the Adjudicating Authority seeking cross examination of all the witnesses shows that the appellants have made a general request for cross examining the witnesses. Most of witnesses are either patients or their relatives who came to Munir Khan for treatment and purchased "Body Revival" and accused him of cheating or doctors/employees of Munir Khan hired by him for assisting him in cheating the gullible people in selling the miracle drug to them. No specific names of the witnesses are disclosed along with the circumstances in which, appellants wanted to cross examine them and the points on which the said witnesses were to be cross examined. The Adjudicating Authority has specifically stated in its order on page 28 that provisions of PMLA does not make cross examination a mandatory requirement in the time bound adjudication contemplated u/s. 8 of PMLA which is adverted to as follows:

"11. Shri Prateek Kasliwal also contended that the complainant has picked and used witnesses and therefore, he has a right to cross examine them. In this connection, it may be mentioned that neither a literal nor purposive reading of the PMLA makes cross examination a mandatory requirement in the time bound process of adjudicating contemplated by section 8 of the PMLA. Further, in the case of spatial statutes, the Honble Supreme Court has seen it fit to hold that cross examination is not a mandatory requirement, even in the light of the principles of natural Justice. In state of Jammu and Kashmir v. Bakshi Ghulam Mohammed, : AIR 1967 SC 122 , a matter under the J & K Commission of Inquiry Act, it was held:-

"the next point is as to the cross examination. This claim was first based on the rules of natural justice. It was said that these rules require that Bakshi Ghulam Mohammed should have been given a right to cross examination all those persons who sworn affidavits supporting the allegations against him. We are not aware of any such rule of natural justice (emphasis supplied). No authority has been cited in support of it. Our intention was darn to Meengals Tea Estates v. Their Workmen, : (1963) II LLJ 392 SC, but there all that was said was that when evidence is given viva against a person he must have the opportunity to hear it and to put the witnesses questions in cross examination. That is of our case. Furthermore, in Meengals Tea Estate case the court was not dealing with a fact-finding body as we are. Rules of natural justice require that a party against whom an allegation is being inquired into should be given a hearing. Bakshi Ghulam Mohammed was certainly given that. It was said that the right to hearing included a right to cross examine. We are unable to agree that that is so. The right must depend upon the circumstances of each case and must also depend on the statue under which the allegations are being inquired into (emphasis supplied). This court has held in Narendra Nath Bora v. Commissioner of Hills Division and Appeals, Assam : [1958] 1 SCR 1240 that "the rules of natural justice vary with the varying constitution of statutory bodies and the prescribed by the Act under which they function: and the question whether or not any rule of natural justice had been contravened, should be decided not under any preconceived notions, but in the light of the statutory rules and provisions".

11.2. Therefore, in light of the above, and particularly in light of the fact that the statute in question, namely the PMLA, does not contemplate the inclusion of the right to cross-examination within the right of the hearing, the Defendant/Respondents and averments in this regard may be held to be without merit."

68. The PML Act is a special enactment. The Act inter-alia seeks to prohibit any act of money laundering and seeks attachment and confiscation of proceeds of crime/properties involved in money laundering and stringent punishment by way conviction and fine for a person found guilty of offence of money laundering. The attachment proceedings are in the nature of interlocutory proceedings. At this stage the primary objective is to protect the property so that they are not alienated, transferred, dissipated or dealt with and that they are available at the confiscation stage which proceedings will take place at a later stage. At this stage it is not necessary to follow a full fledge adjudication including cross examination of witness, if necessary, to arrive at a final conclusion. Honble Bombay High Court in the case of Radha Mohan Lakhotia & Others v. The Deputy Director, PMLA, Department of Revenue in first appeal No. 527 of 2010 by the judgment dated 5.8.2010 had held as follow:

"19. ................The fact that the Respondents could have acted only if there was reason to believe that a person is in possession of proceeds of crime does not mean that the Authorities at this stage are obliged to prove the fact beyond doubt that the property in possession was in fact proceeds of crime. All that the Authority is required to show is that there was "substantially probable cause" to form opinion that the property under attachment is proceeds of crime. The circumstances adverted to by the Authorities below do indicate that there was substantially probable cause to form such opinion."

69. The Honble Delhi High Court, in the judgment dated 24.1.2013 in WP (C) 401/2013 & CM No. 802/2013 in the case of Shahid Balwa v. The Directorate of Enforcement had repelled the plea for cross examination of witnesses in a case under FEMA. The Division Bench of Delhi High Court in LPA No. 79/2013 & CM No. 2310/2013 in the case of Shahid Balwa v. The Directorate of Enforcement had allowed the appeal filed against the order of the single judge dated 24.1.2013 in Shahid Balwa (supra) and had held that it is not possible to lay down any rigid rules as to when in compliance of principles of natural justice opportunity to cross-examine should be given and had permitted cross examination. The decision of the Division Bench of the Honble Delhi High Court, however, has been stayed by the Honble Supreme Court in Special Leave Petition, as has been intimated by the counsel for the respondent which is not refuted by the counsel for the Appellants. The application of the principles of natural justice depends on the facts and circumstances of each case and appellants cannot claim that they are entitled to cross examine every witness as a matter of right without even alleging as to why the cross examination of every or some of the witnesses is necessary or is required.

70. In any case ratio of decision of the Honble High Court in Shahid Balwa (supra) is distinguishable. In the said case, the petitioner was charged for the contravention of the provisions of section 42 of the Foreign Exchange Management Act, 1999 (in short FEMA) and proceedings could have resulted in imposing penalty. Further the provisions pertaining to adjudication proceedings under the FEMA are different from the adjudication proceedings under PML Act. Plain reading of Section 16(1) of FEMA and 8(1) of PML Act which is reproduced below shows that provisions contained in two enactments are not pari materia :

"FEMA Section 16(1)-For the purpose of adjudication under section 13, the Central Government may, by an order published in the Official Gazette, appoint as many officers of the Central Government as it may think fit, as the Adjudicating Authorities for holding an inquiry in the manner prescribed after giving the accused person alleged to have committed contravention under section 13, against whom a complaint has been made under sub-section (2) (hereinafter in this section referred to as the said person) a reasonable opportunity of being heard for the purpose of imposing any penalty."

"PMLA 8. Adjudication.--(1) On receipt of a complaint under sub-section (5) of section 5, or applications made under subsection (4) of section 17 or under sub-section (10) of section 18, if the Adjudicating Authority has reason to believe that any person has committed an offence under section 3 or is in possession of proceeds of crime, it may serve a notice of not less than thirty days on such person calling upon him to indicate the sources of his income, earning or assets, out of which or by means of which he has acquired the property attached under sub-section (1) of section 5, or, seized or frozen under section 17 or section 18, the evidence on which he relies and other relevant information and particulars, and to show cause why all or any of such properties should not be declared to be the properties involved in money-laundering and confiscated by the Central Government."

71. This Tribunal had considered the similar plea whether the persons whose statements are recorded under section 50 of PMLA are to be cross examined by the accused in proceedings under section 8 of the Act in the case of Jitendra Kumar Jha v. Directorate of Enforcement in FPA-51/Cal/2010 by its judgment dated 26.08.2010 had held as follows:

"After considering the reply and material placed for explaining its source of funds for obtaining properties provisionally retained (see section 8(1) on prima facie satisfaction, (see section 20(4)) property can be allowed to be retained till final adjudication or criminal proceedings are over. The orders are only interim arrangements pending final decision. The judgments cited by the appellants are regarding final orders passed abridging the rights of parties unlike the present proceedings. Here is final adjudication is yet to be made and is only a proceedings for interior detention of properties prima facie involved in money-laundering, pending final adjudication, in a time bound manner, it is not necessary for summoning, witnesses etc. except in special circumstances."

72. The ratio of the case in Sahid Balwa (supra) is not to be applied mechanically. A case is only an authority for what it decides. As observed by the Supreme Court in State of Orissa v. Sudhansu Sekhar Misra :-

"A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic this is what Earl of Halsbury, LC said in Quinn v. Leathem, 1901 AC 495:

"Now before discussing the case of Allen v. Flood (1898) AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically Page 2009 from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all."

In Ambica Quarry Works v. State of Gujarat and Ors. the Supreme Court observed:-

"The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it."

Similarly in Bhavnagar University v. Palitana Sugar Mills Pvt. Ltd. : (2003) 2 SC 111 (vide para 59), the Supreme observed:-

"It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."

The Supreme Court in Bharat Petroleum Corporation Ltd. and Anr. v. N.R. Vairamani and Anr. (: AIR 2004 SC 778) had also held that a decision cannot be relied on without considering the factual situation. In the same judgment the Supreme Court also observed:-

"Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclids theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.

73. In view of the above facts and circumstances, this Tribunal is of the view that the appellants have neither disclosed sufficient reasons nor special circumstances in the application seeking for cross examination of witnesses whose statements were recorded under section 50 of the Act nor any cogent reasons had been disclosed by the learned counsel at the time of oral submissions before the Adjudicating Authority entitling the appellants to cross examine the witnesses at this preliminary stage. Thus the contention raised by the appellants is rejected.

74. It in pertinent to note at this point that appellants filed miscellaneous applications MP-PMLA/872/MUM/2014, MP-PMLA/873/MUM/2014, MP-PMLA/874/MUM/2014 and MP-PMLA/875/MUM/2014 under section 35 on 11.3.2014 when the arguments in the appeals were concluded by the appellants seeking summoning of the witnesses for cross examination and production of documents. These applications were dismissed by a detailed order dated 11.03.2014 holding inter alia that the applicants/appellants have failed to disclose relevant facts and reasons to cross examine the witnesses. It has already been held in these appeals that the attachment proceedings are preliminary in nature and all the material for formation of belief is not to be proved before initiating action u/s. 5 of the PMLA. The plea of the applicants/appellants that if they discloses as to for what purpose they have to cross examine the witnesses, it will prejudice their trial for the purpose of criminal proceedings in relating to alleged offence u/s. 3 of PMLA and their trial in relation to scheduled offences, has already been repelled which has not been challenged by them. This plea taken in appeal also, therefore, cannot be accepted and is repelled.

75. The plea of the appellants that the respondent must that the appellants have committed the crime before the burden u/s. 24 of PMLA can be placed on them and it is the respondent who has to discharge its burden first, is erroneous and therefore not acceptable. The burden as contemplated under section 24 of PMLA is on the appellants. The appellants has all the liberty to produce such material as may be relevant to demonstrate that the properties which are sought to be attached are not acquired from the proceeds of crime and have been acquired by them through the legitimate means. If the burden is on the appellants, it is for them to produce the relevant evidence to show that the properties sought to be attached are acquired out of legitimate means.

76. The plea of the appellants that section 24 of PMLA is applicable only in criminal proceedings in respect of alleged offence u/s. 3 of PMLA is also not acceptable. In B. Rama Raju v. Union of India : (2011) 108 SCL 491 , a question was raised before the Honble Andhra Pradesh High Court whether the provisions of section 24 are applicable only to the trial of offence u/s. 3 of PMLA. It was argued before the Honble High Court that provisions of section 24 of PMLA are being construed as if a bald and baseless allegation of there being proceeds of crime and/or that any property constitutes proceeds of crime is presumed to be true and the burden is placed upon the accused to prove to the contrary and such a provisions offend Article 14. It was further argued that in a proceedings under Section 8(1), the Defendant is not an accused and the Adjudicating Authority is construing the provisions of Section 24 as applicable to proceedings Under Section 8(1) as well. Repelling such a contention the Honble Andhra Pradesh High Court had held as under :

"ISSUE-F:

123. Section 24 shifts the burden of proving that proceeds of crime are untainted property onto person(s) accused of having committed the offence under Section 3. This provision is challenged as arbitrary; is contended to be applicable only to the trial of an offence under Section 3 and not the proceedings for attachment and confiscation of property under Chapter-III; and alternatively as not applicable to proceedings for attachment and confiscation of property of a person not accused of an offence under Section 3.

124. On its textual and grammatical construction, the provision shifts the burden of proving that proceeds of crime are untainted property on person(s) accused of having committed the offence under Section 3.

125. We have noticed while on the analysis of Issues C to E that the provisions of Sections 3, 5, 8, 17, 18, 20, 21 and 23; the definitions of money-laundering {Section 2(p); proceeds of crime (Section 2(u); property (Section 2(v) and value (Section 2(zb)} are inter-twined, delineate the provisions of each other and in tandem operate to effectuate one of the two substantial purposes of the Act viz., attachment for the purposes of eventual confiscation, of proceeds of crime involved in money-laundering, whether in the ownership, control or possession of a person accused of the offence under Section 3 or not. The offence of money-laundering as defined in Section 3 comprises direct or indirect attempt to indulge, knowingly assist, and knowingly be a party to or actual involvement in any process or activity connected with the proceeds of crime and projecting it as untainted property. Proceeds of crime is any property derived or obtained directly or indirectly by any person as a result of a criminal activity relating to a scheduled offence or the value of any such property (Section 2(u). Qua the provisions in Chapter-III of the Act, the process of provisional attachment, confirmation of such attachment by the adjudicating authority and confiscation of the property attached is operative against property constituting the proceeds of crime involved in money-laundering whether in the ownership, control or possession of a person who has committed an offence under Section 3 or otherwise. Section 8(1) while enjoining the adjudicating authority to issue a notice to a person in possession of proceeds of a crime, whether in his own right or on behalf of any other person, calling upon the noticee to indicate the sources of his income, earning or assets for the purposes of establishing that the acquisition of ownership, control or possession of the property by the noticee is bona fide and out of legitimate sources; of his income, earning or assets, does not enact a presumption that where the noticee is a person accused of the offence under Section 3, the provisionally attached property is proceeds of crime. Since camouflage and deceit are strategies inherent and integral to money-laundering operations and may involve successive transactions relating to proceeds of crime and intent to project the layered proceeds as untainted property, effectuation of the legislative purposes is achieved only where the burden is imposed on the accused to establish that proceeds of crime are untainted property. This is the legislative purpose and the justification for Section 24 of the Act.

126. In response to a notice issued under Section 8(1) and qua the legislative prescription in Section 24 of the Act the person accused of having committed the offence under Section 3 must show with supporting evidence and material that he has the requisite means by way of income, earning or assets, out of which or by means of which he has acquired the property alleged to be proceeds of crime. Only on such showing would the accused be able to rebut the statutorily enjoined presumption that the alleged proceeds of crime are untainted property. This being the purpose, we are not satisfied that the provisions of Section 24 are arbitrary or unconstitutional. Section 24 is not confined to the trial of an offence under Section 3 but operates to attachment and confiscation proceedings under Chapter-III, as well. The legislative prescription that the burden of proof inheres on a person accused of having committed the offence under Section 3 is only to confine the inherence of the expressed burden to an accused. Where the property is in the ownership, control or possession of a person not accused of having committed an offence under Section 3 and where such property/proceeds of crime is part of inter-connected transactions involved in money-laundering, then and in such an event the presumption enjoined in Section 23 comes into operation and not the inherence of burden of proof under Section 24. This is in our considered view the true and fair construction of the provisions of Section 24.

127. Clearly, therefore a person other than one accused of having committed the offence under Section 3 is not imposed the burden of proof enjoined by Section 24. On a person accused of an offence under Section 3 however, the burden applies, also for attachment and confiscation proceedings."

77. The provisional attachment order No. 04/2013 was passed on 14.3.2013 and adjudication u/s. 8 of PMLA took place after filing of Original Complain No. 18/2013 dated 14.4.2013. Section 24 of PMLA was substituted by the Prevention of Money Laundering (Amendment) Act, 2012 which case into force w.e.f. 15.02.2013 reads as follows :

"24. Burden of Proof-

In any proceeding relating to proceeds of crime under this Act,--

(a) in the case of a person charged with the offence of money laundering under section 3. the Authority or Court shall, unless the contrary is proved. presume that such proceeds of crime are involved in money-laundering; and

(b) in the case of any other person the Authority or Court, may presume that such proceeds of crime are involved in money laundering."

Plain reading of the section 24 of PMLA as amended shows that in any proceeding relating to proceeds of crime under PMLA in the case of a person who is not charged with the offence of money laundering under section 3 of PMLA, the Authority or Court may presume that such proceeds of crime are involved in money laundering. Thus after amendment, burden of proof is also on a person who is not charged with the offence of money laundering u/s. 3 of PMLA.

78. The counsel for appellants relied upon the judgment of Rajasthan High Court (Jaipur Bench) in S.B. Criminal Appeal No. 297/1976 in the case of Mohinder Singh v. State of Rajasthan and contended that respondent should prove its case and benefit of doubt should go to appellants. The facts of the above case are different from the facts of the present appeals. In the above case, Mahendra Singh was convicted for an offence under Section 161 of IPC and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 and sentenced to undergo six months simple imprisonment and a fine of Rs. 1,000/-, under Section 161 IPC and two years simple imprisonment and a fine of Rs. 2,000/- for the offence under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act. In the present case, the proceedings are interlocutory in nature and appellants will get one more opportunity to prove their case. Further in the attachment proceedings under the Act, the burden to prove that the properties have not been acquired from proceeds of crime or are not proceeds of crime is on appellants. Thus, the above judgment is of no help to the appellants.

79. The counsel for appellants also relied upon the judgment in the case of Uma Charan v. State of Madhya Pradesh & Another : AIR 1981 SC 1915 and contended that the respondent should have recorded reasons for likelihood of transfer of properties u/s. 5(1)(b) of PMLA. In this case the Selection Committee in review of selection list, without recording any reason superseded a member of State Police Service. Honble Supreme Court held that Selection Committee had contravened regulation 5(5) of Indian Police Service (Appointment by Promotion) Regulations, 1955 as it was incumbent on the Selection Committee to have stated reasons in a manner which would disclose how the record of each officer superseded stood in relation to records of others who were to be preferred. The facts of the above case are different from the present case and the ratio of said case cannot be applied to present facts and circumstances. Proceedings in the above case are under a different legislation where the intent and purpose are different from PMLA. Further, in the present case the respondent has recorded the reasons in writing before passing the provisional attachment order which are indicated in the provisional attachment order and original complaint. Rather, the appellants have contended that there was no material to have any reasons to believe that properties are likely to be concealed or transferred. Thus the above judgment is also of no help to the appellants.

80. The counsel for appellants also relied on Gurdial Singh Fijji v. State of Punjab and others : AIR 1979 SC 1622 and contended that the respondent has only given conclusion and not reasons. The facts of this case also relate to service matters. In this matter the Respondents who were government servants and junior to petitioner Gurdial Singh in the seniority list were promoted to the selection grade ahead of the petitioner and his name was not included in the select list for the purpose of promotion to the Indian Administrative Service as he was found by Selection Committee otherwise not suitable. The court laid the principles while considering the purpose and scope of regulation 5(5) of Indian Administrative Service (Appointment by Promotion) Regulation 1955. The purpose and scope of section 5 of PMLA is different and apparently distinguishable. Thus on the basis of the ratio of the above judgment the plea of the appellants cannot be sustained.

Reliance also was placed by the appellants on judgment of Supreme Court in the case of Aslam Mohmd. Merchant v. Competent Authority and Ors : (2008) 14 SCC 186. The procedure/mechanism provided for seizure or freezing/forfeiture of illegally acquired property as laid down in The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act) is very much different from the procedure/mechanism provided for attachment/confiscation under the PML Act. Under the NDPS Act, the Officer freezing/seizing the property should have reason to believe (reasons to be recorded in writing only at the stage before taking steps for tracing and identifying illegally acquired property under section 68(E), these reasons are not to be recorded in writing at the time of passing seizure/freezing order (see: section 68(F) whereas under the PML Act, the Authority making order of provisional attachment should have reasons to believe and such reasons are to be recorded in writing (section 5(1). Further, under NDPS Act, the Competent Authority can confirm the seizure/freezing order after hearing the parties. Further at the stage of forfeiture, if Competent Authority has reason to believe (the reasons for such belief to be recorded in writing as provided under section 68H of the NDPS Act), show cause notice can be issued whereas under the PMLA Act at the stage of confirmation of order for provisional attachment, if the Adjudicating Authority has reason to believe (recording of reason to believe in writing not required as provided under section 8(1) of the PML Act), show cause notice can be issued under section 8(1) of the PML Act. In the case relied on by the Appellants in para 36 it was observed that the competent authority itself had considered and found that there was no allegation that the properties were acquired by the illegally acquired money of Iqbal Mohammed Mirchi and the present holder of the property when the property was forfeited. Similarly, there are many more differences in the procedure/mechanism provided under both the Acts. Therefore, the observation made by the Honble Supreme Court in Aslam Mohd. Merchant (supra) do not support the contention of the appellants. In the said case it was represented that the reasons were not recorded anywhere except in the notice which was given under the concerned Act. On perusal of the notice it had transpired that no reasons were disclosed and this fact had also been admitted by the Competent Authority.

81. The counsel for appellants also relied on Assistant Commissioner Commercial Tax Development, Works Contract and Leasing, Kota v. Shukla & Brothers : (2010) 4 SCC 785 and contended that the recording of reasons is imperative and respondent has only given conclusion and not reasons. The facts of this case are that an appeal under article 136 of the Constitution of India was filed challenging the judgment of the High Court of Rajasthan; it was argued that the order passed by the High Court did not record any reasons for dismissing the revision petition preferred by the Department; it was submitted that various contentions raised as grounds in the revision petition and two questions of law formulated by the Department for consideration in the High Court while impugning the judgment of the Rajasthan Tax Board have not been reverted to by the High Court resulting in serious prejudice caused to the petitioner. Accepting the plea of petitioner, Honble Supreme Court observed that the requirement of stating reasons for judicial orders necessarily does not mean a very detailed order or lengthy order, but there should be some reasoning recorded by the Court for declining or granting relief to the petitioner. The purpose is to make the litigant aware of the reasons for which the relief is declined as well as to help the higher Court in assessing the correctness of the view taken by the High Court while disposing of a matter. Maybe, while dealing with the matter at the admission stage even recording of short reasoning dealing with the merit of the contentions raised before the High Court may suffice, in contrast, a detailed judgment while matter is being disposed of after final hearing, but in both events, in our view, it is imperative for the High Court to record its own reasoning however, short it might be. In the above judgment, Honble Supreme Court laid the principles while considering impugned judgment of the High Court in the revision petition and while dismissing the revision petition High Court did not pass detailed order giving any reasons for rejecting the contentions raised and questions of law formulated by the petitioner. The ratio of said judgment is not applicable to present facts and circumstances. The Act contemplates that the reasonable belief by the Authorities must be recorded in writing. However, the Tribunal and the Court will not go into reasonableness of the reasons. From the perusal of the relevant material it is apparent that the plea of the appellants that there were no reasons is not correct and this plea cannot be accepted.

82. The counsel for appellants relied on various other judgments such as Meenglas Tea Estate vs. Its Workmen (: AIR 1963 SC 1719 ), Rajiv Arora v. Union of India and Ors : (2008) 15 SCC 306 , State of M.P. vs. Chintaman Sadashiva Vaishampayan AIR 1961 SC 1623 , but none of these judgments are of any help as the facts of these cases and issue involved are different from those in the present appeals.

83. The plea of the counsel for appellants that as all the properties are residential properties and are being used by them for residing or for their guests or for family functions therefore, possession of these properties at the very least should not be taken away till the order of the Criminal trial Court becomes final also cannot be accepted.

84. The Tribunal has considered the arguments of the appellants as well the judgments relied upon and arguments of the respondent in respect of taking of possession of properties after confirmation of attachment order. Every order of Provisional attachment passed u/s. 5(1) of the Act ceases to have effect after the expiry of the period specified in sub section 5(1) or on the date of an order made under sub section (2) of section 8 whichever is earlier. Passing of order of provisional attachment is the first stage of the "Attachment, Adjudication and Confiscation" proceedings under the Act and at this stage the prima facie satisfaction that the property in question constitutes proceeds of crime as defined in the Act, is a satisfaction that the appropriate authority arrives on his own on the basis of material in possession and opportunity is not envisaged, obliged or contemplated to the accused/affected party at this stage. Therefore, provision of Section 5(4) contemplates that accused/affected party shall not be prevented from the enjoyment of the immovable property attached u/s. 5(1) of the Act. Thus, the legislator in their wisdom contemplated that at the stage of provisional attachment, accused/affected party should not be dispossessed from the immovable property. Section 5(4) of the Act is adverted to as follows:

"5(4) Nothing in this section shall prevent the person interested in the enjoyment of the immovable property attached under sub-section (1) from such enjoyment.

Explanation.--For the purposes of this sub-section, "person interested", in relation to any immovable property, includes all persons claiming or entitled to claim any interest in the property."

85. The adjudication proceedings under Section 8(1) mandates service of a notice (for the stipulated period) to accused/affected party to afford an opportunity to explain the sources of his income, earning or assets, out of which or by means of which, he has acquired the property attached and to file the evidence on which such person relies and other relevant information and particulars. After the adjudication proceedings, if the order of provisional attachment is confirmed by the Adjudicating Authority, section 8(4) contemplates that Enforcement Director shall forthwith take the possession of the property attached u/s. 5(1). Section 8(4) of the Act as applicable before PMLA (Amendment) Act, 2012 is adverted to as follows :

"8(4)-Where the provisional order of attachment made under sub-section (1) of section 5 has been confirmed under sub-section (3), the Director or any other officer authorised by him in this behalf shall forthwith take the possession of the attached property."

86. A plain reading of the section 5(4) and 8(4) of the Act shows that the legislator, has consciously and after considering the change in position of the attachment proceedings after confirmation by Adjudicating Authority u/s. 8(3), contemplated that the Enforcement Director shall forthwith (emphasis supplied) would take the possession of the attached property. Forthwith means Immediately, without delay, Blacks Law Dictionary, 7th Edn., p. 664. When a statute or rule of Court requires an act to be done forthwith, it means that the act is to be done within a reasonable time having regard to the object of the provision and the circumstances of the case [Ex parte Lamb, (1881) 19 Ch D 169; 2 Chit. Arch. Prac., 14th Edn., 1435]. The expression forthwith would mean as soon as may be, that the action should be performed by the authority with reasonable speed and expedition with a sense of urgency without any unavoidable delay. No hard and fast rule could be laid nor is any particular period prescribed. There should not be any indifference or callousness in consideration and disposal of the representation. It depends on the facts and circumstances of each case, Navalshankar Ishwarlal Dave v. State of Gujarat, : AIR 1994 SC 1496 : (1993) Supp 3 SCC 754. The word forthwith has been interpreted to mean "as soon as possible; without any delay", Gopal Mondal v. State of West Bengal, : AIR 1975 SC 1807 , MISA (26 of 1971), s. 3.

87. Provision of section 8(4) were challenged in writ petition before the Andhra Pradesh High Court in the case of B. Rama Raju v. Union of India (writ petition 10765 of 2010) on the ground that the provision enables deprivation of possession and enjoyment of an attached immovable property even before conclusion of the trial of the scheduled offence. It was also contended that this provision is harsh and so disproportionate as to violate Articles 14, 21 and 300-A of the Constitution. Division Bench of Honble Andhra Pradesh High Court dismissed the writ petition and held that section 8(4) is intra vires. Relevant portion of the judgment dated 4.3.2011 is adverted to as follows:

"Challenge to dispossession before conviction of the accused:

105. Section 8(4) of the Act enjoins the taking over of possession of an attached property on the passing of an order of confirmation of provisional attachment. This provision is arbitrary since dispossession precedes the recording of guilt/conviction by the Special Court in the prosecution of the offence of money-laundering under Section 3. Section 8(4) is therefore invalid, contend the Petitioners. This conclusion in our considered view is without merit and misconceived.

106. At the stage of provisional attachment under Section 5(1) a person interested in the enjoyment of the suspect immovable property is not deprived of enjoyment, in view of the provisions of Sub-section (4) thereof. However Section 8(4) enjoins taking over possession of the attached property whose provisional attachment is confirmed under Section 8(3). On an holistic analysis of the several provisions of the Act, in particular of Sections 5 and 8, we are of the considered view that the legislative intent underlying the preservation of the right to the enjoyment of immovable property provisionally attached under Section 5(1) while enjoining taking over of possession on confirmation under Section 8(3), is part of a consciously calibrated legislative schemata to achieve the object which the several provisions of the Act are designed to fulfill. The wholesome legislative intent underpinning the sequential provisions for provisional attachment, confirmation of such attachment and eventual confiscation; or for retention of a seized property, permitting continuance of such retention pending a determination as to confiscation under Section 8, while preserving the right to possession at the stage of provisional attachment while mandating dispossession after confirmation of the attachment; are conceived to balance the governmental interest expressed by the provisions of the Act on the one hand and the several degrees of rights of persons in possession of property that is believed to be proceeds of crime involved in money-laundering, on the other. In our analysis of the provisions of Sections 5 and 8, we have observed that the reason to believe that a property in possession of a person constitutes proceeds of crime involved in money-laundering, is a satisfaction that may legitimately be arrived at unilaterally and without a participatory process involving hearing or consideration of material that may be produced by, the person in the ownership, control or possession of the property, to disprove the assumption as to involvement of the property in money-laundering. The process of provisional attachment is also in the nature of an emergency prophylactic. An order of provisional attachment is passed where the authorized authority has reason to believe that if the property is not attached immediately, any proceedings under the Act may be frustrated. Having regard to the exigency of the public interest involved in attaching a property believed to be proceeds of crime involved in money-laundering, to prevent frustration of other proceedings under the Act, the maximal due process of hearing an affected party before passing an order of provisional attachment is consciously excluded under the presents of Section 5. It is for this reason that while passing an order of provisional attachment as a prophylactic measure to preserve the property, possession is not disturbed. This appears to be a finely calibrated legislative measure structured to meet the governmental interest at that stage, while not inflicting a disproportionate burden, of deprivation of possession, at this nascent stage of forming of a belief, unilaterally.

107. At the stage of confirmation of provisional attachment however, the person in ownership, control or possession of property is provided an opportunity to show cause why all or part of such property be not declared to be involved in money-laundering and confiscated by the Central Government. The person interested in the property is required by notice to indicate the source of his income, earning or assets, out of which or by means of which he has acquired the property provisionally attached or seized. An order confirming the provisional attachment, as already noticed, may be passed only on the adjudicating authority being satisfied, on considering the material on record including material or evidence furnished in response to the notice issued under Section 8(1); the reply furnished in response thereto; and taking all and other relevant material into consideration, to record a finding that the property or so much of it, is involved in money-laundering.

108. Only at the confirmation stage is taking possession of the attached property legislatively enjoined {Section 8(4)}. The reason for the prescription as to dispossession is apparent. The apparent purpose is also vouchsafed in the counter of the Respondents and the contentions of the Learned Counsel Sri Rajeev Awasthi. The satisfaction as to the provisional attached property constituting proceeds of crime involved in money-laundering is arrived at by the adjudicating authority after considering a fuller basket of information, material and evidence which includes a showing by a person concerned with the property. From the legislative scheme, in particular of Section 8, we infer that dispossession from immovable property is prescribed under Section 8 to prevent wastage or spoilage of the property and thus dissipation of its value so as to preserve the integrity and value of the property till the stage of confiscation. Thus construed the provisions of Section 8(4) are neither arbitrary nor disproportionate to the object sought to be achieved by the provisions of the Act. The provisions of Section 8(4) are reasonable and unimpeachable. The challenge to Section 8 of the Act must therefore fail."

88. Honble Karnataka High Court in P. Vijayalakshmi v. DD ED in WP No. 29626 of 2011 by order dated 10.8.2011 held that having noticed the provision contained in section 8(4), they are convinced that the possession also could be taken by the authorities.

89. In the present case, it is not in dispute that the properties attached have been acquired out of proceeds from sale of alleged medicine "Body Revival". One of the objects of PMLA is that the perpetrators of scheduled crimes should not be allowed to enjoy the fruits of the money that passed under the activity and the enactment is intended to deprive them of the property which is related to the proceeds of specific crimes listed in the Schedule to the Act.

90. The Prevention of Money Laundering (Taking Possession of Attached or Frozen Properties Confirmed by the Adjudicating Authority) Rules, 2013 (hereinafter referred to as Rules) notified on 19th August, 2013 lays down manner of taking possession of movable and immovable property under different circumstances. The Rules also lays down the circumstances in which possession of the property is not to be taken subject to certain terms and conditions. Thus, even though the provisions of the Act enjoin the respondent to take possession of the property but under certain circumstances possession is not to be taken. Whether possession of the property shall be taken or not will depend upon the facts and circumstances of each case. In the present case, the respondent has not issued any notice to the appellants for taking over the possession of the immovable properties and all the facts and circumstances were not disclosed before the authorities below as to why the physical possession of the properties should not be taken. Consequently, the authorities below had not adjudicated on this point.

91. The plea raised by the appellants that the word "shall" should be read as "may" and provisions of section 8(4) should be read as discretionary is not relevant in the facts and circumstances and does not require any further consideration in view of The Prevention of Money Laundering (Taking Possession of Attached or Frozen Properties Confirmed by the Adjudicating Authority) Rules, 2013 and in the above noted facts and circumstances.

92. In the facts and circumstances and for the above discussed reasons, the appellants have failed to make out any illegality or irregularity in the orders of the Adjudicating Authority. Therefore, for the above noted reasons, the pleas of the appellants are repelled and there are no merit in these appeals and they are liable to be dismissed. The above noted appeals are therefore, dismissed. All the pending applications in the appeals are also disposed of. The parties are however, left to bear their own costs.