India: Prevention Of Money Laundering Act, 2002 (PMLA) And Significance Of Reasons To Believe For Attachment Of Property

Last Updated: 29 April 2016
Article by Rajat Jain and Vijay Pal Dalmia, Partner

Under Section 51 of the Prevention Of Money Laundering Act, 2002 (hereinafter also referred as "PMLA Act"), the Director or any other officer not below the rank of Deputy Director authorised by the Director for the purposes of this section, has discretionary power to provisionally attach the property of the person, against whom such officer has reasons to believe, on the basis of material in his possession, that:

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

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

That after the recordal of reason(s) for such believe in writing, the officer by an order in writing may provisionally attach such property for a period not exceeding one hundred and eighty days from thedateof the order. After the provisional attachment of the said property, the officer has to forward the complaint to the Adjudicating Authority, for its adjudication and confirmation of the order for such attachment.

From the bare reading of section 52 of the PMLA Act, it is clear that for the attachment of the property of any person, the authorized officer shall have the "Reasons to Believe" for two things.

  1. That theperson is in possession of proceeds of crime3.
  2. Those proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result infrustration of the confiscation proceedings.

The expression "Reason to Believe" has not been defined under the PMLA Act. However, it has been defined under Section 26 of the Indian Penal Code, 1908 which states that "a person is said to have "Reason to Believe" a thing, if he has sufficient cause to believe that thing but not otherwise". The expression "Reason to Believe" has been used in several Indian statutes and the said expression has been a subject matter in various decisions of the Supreme Court (albeit in the context of other laws).

In the case of Calcutta Discount Company v. Income Tax Officer4, the Supreme Court while dealing with the expression "Reason to Believe" in relation to the Income Tax Act, held that:

"The expression "Reason to Believe" postulates belief and the existence of reasons for that belief. The belief must be held in good faith: it cannot be merely pretence. The expression does not mean a purely subjective satisfaction of the Income Tax Officer: the forum of decision as to the existence of reasons and the belief is not in the mind of the Income Tax Officer. If it be asserted that the Income Tax Officer had Reason to Believe that income had been under assessed by reason of failure to disclose fully and truly the facts material for assessment, the existence of the belief and the reasons for the belief, but not the sufficiency of the reasons, will be justifiable. The expression therefore predicates that the Income Tax Officer holds the belief induced by the existence of reasons for holding such belief. It contemplates existence of reasons on which the belief is founded, and not merely a belief in the existence of reasons inducing the belief; in other words, the Income Tax Officer must on information at his disposal believe that income has been under assessed by reason of failure fully and truly to disclose all material facts necessary for assessment. Such a belief, be it said, may not be based on mere suspicion: it must be founded upon information"

In the case of M. P. Industries Ltd. v. IPO5, the Supreme Court while dealing with the powers under Section 34(1) of the Income Tax, 1922, which required the officer to have 'Reason to Believe', has held that the expression 'Reason to Believe' in Section 3 does not mean purely subjective satisfaction on the part of the Income Tax Officer and that such belief must be held in good faith and it cannot be merely a pretence. It was further held by the Supreme Court that it is open to the Courts to examine whether the reasons for the believe have any rational connection or an element bearing to the formation of that belief, and it should not be extraneous or irrelevant to the purpose of this Section6.

In the case of Income Tax Officer v. Lakhmani Mewal Das7,the Supreme Court explained that powers of Income Tax Officer to reopen an assessment are although wide but not as plenary as the words used are 'reason to believe' and not 'reason to suspect'. The Court held that there should be a "live link or close nexus" between the material before the Income Tax Officer and the formation of his belief that the income had escaped assessment.

In the case of Aslam Mohd.Merchant v. Competent Authority &Ors8, the Supreme Court discussed the meaning of the expression 'Reason to Believe' in the context of Narcotic Drugs and Psychotropic Substances Act, 1985. The Supreme Court referred to its earlier decisions which were rendered in the context of Section 147 of the Income Tax Act, 1961 where a similar expression had been used to clothe an Assessing Officer with the power to reopen income tax assessments, in Phool Chand Bajrang Lal v. ITO9, wherein the Supreme Court held as under:

"Since the belief is that of the Income- tax Officer, the sufficiency of reasons for forming this belief is not for the court to judge but it is open to an assessee to establish that there in fact existed no belief or that the belief was not at all a bona fide one or was based on vague, irrelevant and non- specific information. To that limited extent, the court may look into the conclusion arrived at by the Income-tax Officer and examine whether there was any material available on the record from which the requisite belief could be formed by the Income-tax Officer and further whether that material had any rational connection or a live link for the formation of the requisite belief."

Further, the Hon'ble High Court of Andhra Pradesh, in the case of K. Munivelu v. The Government of India and Ors10, while dealing with the terms "Reason to Believe" and "suspects", with respect to Section 3 (2) of Essential Commodities Act, 1955, which deals with the power of the authorized officer to enter and search the premises and the seizure thereof, and Andhra Pradesh Coarse Grains (Export) Control Order, 1965, held that the term "Reason to believe" is a much stronger expression than the word "suspect". Further, it was observed from the meanings attributed to the words "suspect" and "Reason to Believe", that it is evident at the initial stage when there is a belief for the existence of a certain thing or an alleged fact, such belief will amount to suspicion. After the stage of suspicion, where it is found that there exists a thing, condition or a statement of fact, one moves towards collecting information and then examine that information and reach on a final conclusion, on the basis of that information, that there exists such a thing, condition or statement of a fact. All these ingredients are prerequisite for forming any opinion based on "Reason to Believe"11.

With the recent surge in the number of proceedings under the PMLA Act, the expression 'Reason to Believe' as provided under Section 5 of the PMLA Act, has come under the scrutiny of various High Courts of India and the Appellate Tribunal, under PMLA Act (hereinafter also referred as "Appellate Tribunal"), and the concept and importance of the expression 'Reason to Believe' have been elaborated therein.

In the case of Ramani Mistry vs. The Deputy Director Directorate of Enforcement12, the Appellate Tribunal while deciding the appeal filed by the Appellant under Section 2613 of the PMLA Act, against the order of Adjudicating Authority, wherein the Adjudicating Authority confirmed the order of provisional attachment of the property of the Appellant,  observed that the Session Court had convicted the Appellant for having possession of ganja and not for selling ganja and this fact was not considered by Respondent while forminghis Reasons to Believe. The Appellate Tribunal while interpreting the importance of the expression 'Reason to Believe' held as under:

"The word "Reason to Believe" is not same as suspicion or doubt. Belief is a higher level of the state of mind. When it is said that a person has Reason to Believe a thing, it means that the circumstances and facts known to him are such that a reasonable man, by probable reasoning, can conclude or infer regarding the nature of the thing concerned. It may not be an absolute conviction or inference. But it may be a possible conclusion or prima facie conclusion."

While deciding the present matter, the Appellate Tribunal referred to the following cases decided by the Supreme Court.

In the case of Narayanappa and Others v. CIT, Banglore14, it was held that it is open to a court to examine the question whether the recorded reason have a rational connection or relevant bearing to the formation of belief and are not extraneous or irrelevant to the purpose of the section.

In the case of SheoNath Singh v. Appellate Assistant Commissioner of Income Tax (Central), Calcutta and others15, while considering the expression "Reason to Believe", it was held that the belief must be that of an honest and reasonable person based upon reasonable grounds. The word "believe" is a stronger word than suspicion and it involves the necessity of showing that the circumstances are such that the reasonable man must feel convinced in his mind that the property with which he is dealing or he is in possession is liable to confiscation.

In the case of Ganga Saran and Sons v. ITO and other16, it was held that if there is no rational or intelligible nexus between the reasons and the belief, notice issued by the authority would be liable to be struck down as invalid.

In the case of Phool Chand Bajrang Lal v. ITO17, it was held that since, the belief is that of the Income-tax Officer, the sufficiency of reasons for forming the belief, is not for the Court to judge but it is open to an assessee to establish that there, in fact, existed no belief or that the belief was not at all a bona fide one or was based on vague, irrelevant and non-specific information. To that limited extent, the Court may look into the conclusion arrived at by the Income-tax Officer and examine whether there was any material available on record from which the requisite belief could be formed by the Income-tax Officer and further, whether that material had any rational connection or a live link for the formation of the requisite belief."

It was consequently held by the Appellate Tribunal that there was no rational connection or intelligible nexus between the reasons and the belief. Once a belief formed by the Respondent is found to be dissatisfying the statutory requirement, which is a primary condition for provisional attachment of a property u/s. 5(1) of PMLA Act, a valid provisional attachment order cannot be said to have been passed. Thus, the provisional attachment was considered invalid.

In the case of Amit Pandey vs. The Joint Director, Directorate of Enforcement, Lucknow18, the Appellate Tribunal under PMLA held that the Respondent, on the basis of material in his possession, could not haveformed the "Reasons to Believe" that the Appellant was in possession of any proceeds of crime which were liable for attachment under section 5 of PMLA, while observing that the sole argument of the Respondent  before the Adjudicating Authority and this Tribunal was that, since Rs. 25,000/- was seized by the CBI, it may well be connected with proceeds of crime, however, the Respondent  did not bring any material on record, even during the hearing of appeal, to show that the Appellant had received any money out of proceeds of crime.

In the case of Paresha G. Shah vs. State of Gujarat & Ors.19, the High Court of Gujarat while deciding the Special Criminal Application (Quashing) No. 150 of 2015,  dealt with the expression "Reason to Believe" in relation to section 5 of the PMLA Act, and observed as under:

"The Reason to Believe must be tangible in law and if the material in hand has no nexus with the belief or there is no material or tangible information for the formation of the belief, then in such a case, the whole process would get vitiated."

In the case of Mahanivesh Oils & Foods Pvt. Ltd. vs. Directorate of Enforcement20, the High Court of Delhi while deciding a Writ Petition filed by the Petitioner against the order of the Adjudicating Authority, wherein the Adjudicating Authority had confirmed an order for provisional attachment of the property of the Appellant, the High Court observed that the Respondent  could not even point out any material in his possession on which the Respondent had formed the "Reasons to Believe" that the Petitioner was likely to conceal or transfer the property, attached by the Respondent, to counter the Petitioner's contention that there was no material on record, which could possibly lead to a belief that the Petitioner is likely to transfer or conceal the property in any manner, and the same may result in frustration of proceedings for confiscation of Petitioner's property under the PMLA Ac.

The Court further observed that the concerned officer must have a Reason to Believe on the basis of material in his possession that the property sought to be attached is likely to be concealed, transferred or dealt with in a manner which may result in frustrating any proceedings for confiscation of their property under the Act.

While deciding the present writ, the Court referred to the definition of the expression 'Reason to Believe' provided under Section 26 of the Indian Penal Code, and stated as under:

"Thus, on a plain reading of the aforesaid definition, the Deputy Director, Directorate of Enforcement - the concerned officer who passed the impugned order - would require to have sufficient cause to believe that the property sought to be attached would be transferred or dealt with in a manner which would frustrate proceedings relating to confiscation of such property. Further, the officer was also required to record the reasons for such belief. However, there is nothing in the impugned order, which indicates that the concerned officer had any cause to so believe."

The Court while setting aside the impugned order held that the impugned order passed by the Adjudicating Authority only records that the concerned officer has Reason to Believe that the property in question is likely to be concealed, transferred or dealt with in a manner, which may result in frustrating the proceedings relating to confiscation of the said proceeds of crime, however, there is no reference to any fact or material in the impugned order which could lead to this inference, and a mere mechanical recording that the property is likely to be concealed, transferred or dealt with would not meet the requirements of Section 5(1) of the PMLA Act.

Conclusion

From the cases cited above, it is apparent that the officer authorized under section 5 of the PMLA, before attaching the property, shall have sufficient Reasons to Believe that the person is in possession of any proceeds of crime and such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustration of the confiscation proceedings, by that person, and such reasons shall be based on the material available in the possession of that Officer. The Reasons to Believe formed by the Officer shall not be formed only on the subjective satisfaction on his part or it shall not be merely pretence but such reasons must be held in good faith and have value in the eyes of law.

Nevertheless, the aggrieved person can challenge the validity of the Reasons to Believe formed by the authorized officer, for attaching the property of the aggrieved person, at the appropriate forum, and then it will be open to the Court or forum to examine whether the reasons for the believe have any rational connection with the material in possession, or the officer has any basis for forming such belief. On examination if the Court or forum reaches to the conclusion that the belief formed by the officer is not able to satisfy the statutory requirement as enumerated u/s. 5(1) of PMLA Act, then the whole proceedings for attachment of property of the aggrieved person will get vitiated.

The wide powers conferred upon the officer mentioned under Section 5 of the PMLA Act, requires higher standard of responsibility as the same encroaches the rights of the person and before invoking such powers, the officer must take into consideration the relevance of the expression "Reason to Believe" in its entirety, as the expression "Reason to Believe" is not same as 'suspicion' or 'doubt'.

Footnotes

1 Section 5 - Attachment of property involved in money-laundering

[(1) Where the Director or any other officer not below the rank of Deputy Director authorised by the Director for the purposes of this section, has reason to believe (the reason for such belief to be recorded in writing), on the basis of material in his possession, that-

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

(b) 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,

he may, by order in writing, provisionally attach such property for a period not exceeding one hundred and eighty days from the date of the order, in such manner as may be prescribed:

Provided that no such order of attachment shall be made unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under section 173 of the Code of Criminal Procedure, 1973(2 of 1974), or a complaint has been filed by a person authorised to investigate the offence mentioned in that Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be, or a similar report or complaint has been made or filed under the corresponding law of any other country:

Provided further that, notwithstanding anything contained in [first proviso], any property of any person may be attached under this section if the Director or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section has reason to believe (the reasons for such belief to be recorded in writing), on the basis of material in his possession, that if such property involved in money-laundering is not attached immediately under this Chapter, the non-attachment of the property is likely to frustrate any proceeding under this Act.]

(2) The Director, or any other officer not below the rank of Deputy Director, shall, immediately after attachment under sub-section (1), forward a copy of the order, along with the material in his possession, referred to in that sub-section, to the Adjudicating Authority, in a sealed envelope, in the manner as may be prescribed and such Adjudicating Authority shall keep such order and material for such period as may be prescribed.

(3) Every order of attachment made under sub-section (1) shall cease to have effect after the expiry of the period specified in that sub-section or on the date of an order made under sub-section (2) of section 8, whichever is earlier.

(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.

(5) The Director or any other officer who provisionally attaches any property under sub-section (1) shall, within a period of thirty days from such attachment, file a complaint stating the facts of such attachment before the Adjudicating Authority.

2 Ibid.

3 http://www.moneylaundering.legal/proceedsofcrime.html

4 1961 SCR (2) 241

5 [(1970) 2 SCC 32]

6 http://www.moneylaundering.legal/Search_Seizure.html

7 1976 SCR (3) 956

8 (2008) 14 SCC 186

9 (1993) 203 ITR 456 (SC)

10 [AIR1972AP318]

11 http://www.mondaq.com/india/x/452512/Money+Laundering/Powers+Of+Search+And+Seizure
+Under+Section+17+Of+The+Prevention+Of+Money+Laundering+Act+2002+PMLA+And+Importance+Of+Reasons+To+Believe

12 FPA-PMLA/296/KOL/2011

13 https://indiankanoon.org/doc/1155491/

14 AIR 1967 SC 323

15 AIR 1971 SC 2451

16 (1981) 130 ITR 1 (SC)

17 (1993) 203 ITR 456 SC

18 FPA-PMLA-913/LKW/2015

19 https://indiankanoon.org/doc/41358673/

20 W.P.(C) 1925/2014 and CM No. 4017/2014

© 2016, Vaish Associates Advocates,
All rights reserved
Advocates, 1st & 11th Floors, Mohan Dev Building 13, Tolstoy Marg New Delhi-110001 (India).

Article by Rajat Jain, Advocate - Email: rajatjain@vaishlaw.com
Vijay Pal Dalmia, Advocate, Partner - Email: vpdalmia@vaishlaw.com
Vaish Associates Advocates

The content of this article is intended to provide a general guide to the subject matter. Specialist professional advice should be sought about your specific circumstances. The views expressed in this article are solely of the authors of this article.

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