M/s. Nav Nirman Builders & Developers Pvt. Ltd. Through its Managing Director, Naveen Singh vs The Union of India Through Deputy Director, Directorate of Enforcement, Govt of India Ranchi, Jharkhand

Held: An application under the second proviso to s.8(8) of the PMLA can only be filed subject to satisfying the essential conditions laid down by Rules 2(b) and 3A of the 2016 Rules. [Para 52] Prevention of Money-Laundering Act, 2002 – ss.5(1), 8(3), 8(7), 8(8), 26 – Prevention of Corruption Act, 1988 – s.13(2) r/w. s.13(1)(d) – An FIR was registered for the various offences punishable under the IPC along with s.13(2) r/w. s.13(1)(d) of the Prevention of Corruption Act, 1988 (predicate offence) – A Provisional Attachment Order (PAO) was passed by the respondent, u/s.5(1) of the PMLA, on 17.12.2017, attaching two pieces of land purchased by the appellant in the years 2012 and 2014, in lieu of the amount allegedly received fraudulently by the firm – The Adjudicating Authority passed a confirmation order u/s.8(3) of the PMLA – Aggrieved, an appeal was filed by the appellant u/s.26 of the PMLA – In the meantime, a Prosecution Complaint was filed by the respondent u/s.45 of the PMLA – Charges were framed by the Special Court – Respondent filed application invoking s.8(7) of the PMLA – Thereafter, appellant filed an application invoking s.8(8) of the PMLA – The Special Court considered both the applications together, notwithstanding the pendency of the appeal filed u/s.26 of the PMLA – The Special Court allowed application u/s.8(7) of the PMLA and dismissed application u/s.8(8) of PMLA – Resultantly, the confiscation of the attached properties, as sought by the respondent, was ordered – The order passed by the Special Court allowing the application u/s.8(7) of the PMLA, was confirmed by the High Court – Correctness: Held: Admittedly, the appellant company, having suffered an order u/s.8(3) of the PMLA, had preferred an appeal u/s.26 of the PMLA which was pending on the file of the Appellate Tribunal even at the time of filing of the applications u/ss.8(7) and 8(8) of the PMLA – The fact that the said appeal was pending before the Appellate Tribunal, for want of coram, is not in dispute – Once an order under s.8(3) of the PMLA is challenged before a higher forum, a deemed embargo operates on the conclusion of the proceedings u/s.8(7) of the PMLA – Hence, the Special Court cannot go into the issues which the higher forums have been entrusted with – When an appeal is provided for under the statute, it gives a vested right to any aggrieved person to exhaust the same – Instead of deferring the application filed u/s.8(7) of the PMLA, and awaiting the adjudication by the Appellate Tribunal u/s.26 of the PMLA, the Special Court has allowed the said application, for which exhaustive reasons have been given independently on merits – The Special Court has, in effect, rendered the appeal u/s.26 of the PMLA infructuous – The said action at the instance of the Special Court is totally impermissible in law – Thus, the order passed by the Special Court allowing the application u/s.8(7) of the PMLA, as confirmed by the High Court in the impugned order is set aside. [Paras 45, 46, 50]