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The Supreme Court recently allowed an appeal filed by OPTO circuit India Ltd. that challenges an order of the Karnataka High Court. Additionally, the Supreme Court quashed the communication issued by the Enforcement Directorate and asked the respondent banks- Axis Bank, Induslnd Bank & State Bank of India (SBI), to de-freeze accounts of the appellants frozen due to the allegations of foreign diversion of funds. The question before the Court was the legality of the freezing of bank accounts.
Freezing of a bank account means where the account holder can no more carry out any financial transactions with the bank account until they receive further notice from the bank. In this case, every payment and transaction will come to a standstill.
The Supreme Court didn’t interfere in the proceedings instituted under PMLA in this appeal. The case before the Karnataka HC came due to an action initiated by the CBI that led the ED to ask respondent banks to freeze/stop operations of the accounts belonging to the appellant.
In the complaint instituted by the SBI, allegations were made of foreign diversion of funds of Rs. 354.32 crore. The Supreme Court concurred with the High Court with respect to the scope of parallel proceedings under Section 3 & 4 of the PMLA. The Supreme Court observed that the question about whether or not the communication directing the freezing of the accounts was legally tenable, should have been evaluated under the test of “due process” provided under the Act.
The ED submitted in the SC that the order to freeze the accounts of the appellant was issued with a view to “stop layering/diversion and safeguarding the proceeds of crime.” However, it was also seen that it was not issued in accordance with Section 17(1) of the PML Act 2002, which empowers the enforcement authority to order search and seizure of property/records, if it is conducted on the basis of presence of cogent “reasons to believe.”
The Supreme Court stated that the powers exercised by the concerned authorities should be as per the provisions of the Act. The bank accounts fall within the ambit of both “property” and “records”, therefore any order freezing the same should be in line with the procedure laid down under Section 17 of the Act.
The Supreme Court asserted the need for drawing a balance between the Act’s objectives and protecting the accused person from an arbitrary action outside the purview of permissible action. The court held that the order of freezing accounts of the appellants was made on the basis of a communication to the Anti-Money Laundering Officer. This did not satisfy the “reasons to believe” test as provided under the Act.
The authorities had failed to meet the mandatory requirements as provided under Section 17 of the Act. The failure includes the failure to record “belief of commission of the act of money laundering” and after affecting such seizure filing an application before the Adjudicatory Authority, PMLA.
The Court further held that if a law provides for a procedure to be followed in a particular manner, then it must be adhered to strictly. The authorities are held to be bound by procedure provided in the statute for their action to be legally sustainable.
The SC rejected the alternative argument of the ED that seizure under challenge can be sustained under Section 102 of the CrPc 1973. The SC said that the legislation (PMLA) is endowed with a scheme that differentiates it from general procedural laws and also provides for specific provisions governing the power of seizure and the procedure. The Supreme Court held that the freezing didn’t even meet the conditions as provided under the Code of Criminal Procedure 1973.
The fact of the matter is that there must be an element of “reasons to believe” and compliance with the procedure provided under the PML Act before freezing of bank accounts or taking such actions. This will prove to be precedent for the adjudicating authority as well as for the appellate courts.