A Division Bench of the Kerala High Court dismissed appeal filed by Santiago Martin against Enforcement Directorate (ED) attachments freezing the movable assets of his company Sikkim Lotteries.
The present writ petition has been filed against the order of the Single Bench of the Kerala High Court dismissing plea against the ED attachments. The properties of the petitioner, Santiago Martin, have been subjected to five different provisional attachments under the Prevention of Money Laundering Act, 2002 (PMLA). The challenge was against the provisional attachment order, as well as the order freezing the movable properties, including mutual funds and fixed deposits.
The Single Bench of Justice Bechu Kurian Thomas dismissed the plea against ED attachments after holding that when such statutory remedies are provided, including an appellate power on facts as well to the High Court, exercising the power under Article 226 of the Constitution of India would be akin to usurping the power of the Appellate Court. Such a procedure is not legally proper or justifiable. Hence it was observed that the alternative remedies could have been sought in the present case.
Senior Advocate Aryama Sundaram, assisted by A. Kumar, counsels for the appellant, vehemently submitted that the Single Judge had committed a grave error in rejecting the writ petition on the grounds of availability of alternative remedy and further submitted that there is no alternative efficacious remedy against an order passed under Section 5(1) of the PMLA Act, by which the competent officer passes an order of provisional attachment of the property.
It was further submitted that there is no alternative remedy of filing an appeal, since Section 26 of the PMLA Act does not empower the Appellate Tribunal to examine the validity of the provisional attachment order. According to him, an aggrieved person can get the remedy of filing an appeal provided under sub-section (6) of Section 26 only subsequent to an order passed by the adjudicating authority.
On the other hand, Additional Solicitor General of India, L. Sundareshan assisted by Jaishankar V. Nair, counsel appearing for the respondent/Director of Enforcement, would vehemently oppose the appeal and has supported the orders passed by the Enforcement Directorate authority and the judgment impugned in this appeal.
It was submitted that during the pendency of the writ petition in which the provisional attachment orders and other orders of freezing the account came to be challenged, the respondent authorities had already made a complaint to the adjudicating authority under Section 5(5) of the PMLA Act.
A Division Bench of Chief Justice AJ Desai and Justice VG Arun observed that “In the present appeal, when the authority empowered under Section 5 of the PMLA Act has scrutinised the materials relied on while passing the provisional attachment order dated 09.06.2023, and when the adjudicating authority is going to examine all such issues and pass appropriate orders, we do not find any justifiable reason to reconsider the same, that too, in this intra court appeal. Therefore, we dismiss this appeal.”
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