Freezing of Bank Accounts under Prevention of Money Laundering Act

Introduction

 

Today we will discuss the latest judicial pronouncement of OPTO Circuit India Ltd. v. Axis Bank & Ors., Criminal Appeal No. 102/2021, wherein the Court discussed the scope and the power of freezing bank accounts by the authorities under the Prevention of Money Laundering Act, 2002 (in short, “PMLA”).

 

In the present case, the Appellant had approached the Court alleging that since its bank accounts are frozen illegally by the Respondents, it is not able to clear the statutory dues that it otherwise would have cleared. In response, the Enforcement Directorate (ED) did concede that while freezing the bank accounts, it did not comply with the mandate of Section 17 of PMLA. According to the ED, the apparent purpose to freeze the bank accounts is to stop the further layering/division of proceeds of crime and to safeguard the proceeds of crime.

 

Section 17 of PMLA and Section 102 of CrPC

 

The Court explained Section 17 of PMLA as under: -

 

“Under Section 17 of the PMLA, the pre-requisite is that any authorized officer should on the basis of information in his possession to be recorded to in writing, have reason to believe that such person has committed acts relating to money laundering and there is need to seize any record or property found in the search. Such officer also has the power to freeze such record or property if it is not possible to seize the same. After issuance of the Freezing Order, the authorized officer shall forward a copy of the reasons along with the materials in possession to the Adjudicating Authority. The Officer who had seized or frozen any record or property shall have to file an application requesting for retention of such record/property before the Adjudicating Authority. This procedure also has to be filed in case of a Bank Account. In the present case, this procedure was not followed and hence, the freezing or the continuation thereof is without due compliance of the legal requirements and unsustainable.”

 

The procedure relating to search and seizure under Section 102 of the Code of Criminal Procedure, 1973, was also differentiated by the Court and it was observed that the scheme of the PMLA is entirely different and when the power is available under a special enactment (PMLA), the question of resorting to the power under the general law does not arise.

 

Thereafter the Court considered the question relating to Section 102 of CrPC that provides certain powers to the investigating agencies. The Court cited the case of Mohinder Singh Gill & Another vs. The Chief Election Commissioner, New Delhi & Ors., (1978) 1 SCC 405, that provides that: -

 

“8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji:

(1) Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.

Orders are not like old wine becoming better as they grow older:”

 

The Court also observed that the arguments relating to Section 102 of CrPC has been taken at a belated stage that cannot be accepted now.

 

Interpretative Process

 

While explaining Section 17 of PMLA and Section 102 of CrPC, the Court also conducted an interpretative exercise and cited the case of Chandra Kishor Jha vs. Mahavir Prasad and Ors. (1999) 8 SCC 266, wherein it was held that: -

 

“It is a well settled salutary principle that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner.”

 

The Court opined that if the above-stated salutary principle is to be taken recourse to, then it would mean that though the Authorized Officer under Section 17 of PMLA is vested with sufficient powers, yet such power is also circumscribed by the very same provision and the statute. Any other manner of exercise of power except as contemplated under PMLA would mean that due process of law has not been complied with, before and after freezing the bank accounts.

 

Concluding Remarks

 

The Court finally directed the Respondents (ED etc.) to defreeze the bank accounts and honour the payments advised by the Appellants towards the statutory dues.

 

I find this to be a welcome judgment and the reasoning adopted by the Courts seems to be in consonance with its earlier decision wherein the procedure prescribed under a special statute has been given due regard. The officers of many investigative agencies have become like bloodhounds and sometimes, in the name of implicating a person or a body, some officials go too far and act in utter disregard of the procedural formalities. Freezing bank accounts is a serious affair for any business entity and it is akin to cutting the financial bloodline of any such entity. Such measures should not be taken as a matter of routine recourse but should be taken only after compliance of all the procedural formalities as contemplated in the parent statute are done.