Dr. Pradeep Makkar Vs Deputy Director (Appellate Tribunal under SAFEMA, New Delhi)
Digital Devices Cannot Be Retained Indefinitely When Not Relied Upon in PMLA Complaint and Owner Is Not an Accused: SAFEMA Tribunal
The Prevention of Money Laundering Act, 2002 provides the statutory framework for investigation, search and seizure, retention and adjudication in money-laundering proceedings. The Appellate Tribunal under SAFEMA has directed the Enforcement Directorate to release a seized hard disk and mobile phone within 30 days after the ED admitted that the devices were not relied upon in the prosecution complaint and that their owner had not been arrayed as an accused. The Enforcement Directorate had seized a hard disk, mobile phone and locker belonging to Dr. Pradeep Makkar during proceedings under the Prevention of Money Laundering Act, 2002.
The locker was subsequently released. However, the ED continued to retain the hard disk and mobile phone, prompting the appellant to approach the Tribunal against their continued seizure. During the hearing, counsel for the ED stated on instructions that the seized hard disk and mobile phone had not been relied upon in the prosecution complaint and that the appellant had not been named as an accused in the prosecution complaint.
Thus, the ED did not demonstrate any continuing evidentiary or prosecutorial requirement for retaining the devices. In view of the ED’s statement, the Tribunal interfered with the impugned order to the extent it concerned the appellant and directed that the seized hard disk and mobile phone be released within 30 days from presentation of the Tribunal’s order. The appeal was accordingly disposed of. The ruling recognises that seizure or retention under the PMLA cannot continue mechanically after the investigation has reached the prosecution stage. Once the prosecution complaint has been filed, the ED must be able to demonstrate a continuing legal or evidentiary necessity for retaining the seized property. Where the devices are not relied upon in the complaint and their owner is not even prosecuted, continued possession by the investigating agency becomes difficult to justify.
FULL TEXT OF THE JUDGMENT/ORDER OF APPELLATE TRIBUNAL UNDER SAFEMA
This appeal involves seizure of hard disk and mobile phone. It was also seizure of locker but it was released subsequently.
The counsel for the respondent, on instructions, submits that hard disk and mobile phone have not been relied in the prosecution complaint and even the appellant is not named as accused. In view of the above, I cause interference in the Impugned Order qua the appellant and order for release of the digital devices within 30 days of the presentation of this order. The appeal is disposed of with the aforesaid.
