The Supreme Court on Friday chastised the ED for proceeding to seal the properties in question and taking symbolic possession despite the Court's March 28 order permitting the service of the advance copy of the petition on the central agency and setting the matter for hearing on April 1 in a PMLA case where the "basic question involved is whether the provisional attachment order of 3.6.2021 ceases to be in force on the expiry of 180 days."
The panel of Justices A. M. Khanwilkar and A. S. Oka was hearing an SLP challenging the Bombay High Court's March 3 ruling authorising the Enforcement Directorate to seize the petitioners' assets. "We will temporarily stay the order of possession in respect of the property at Serial no. 8 (residential apartment of the petitioners) ... So far as the other properties are concerned, the Petitioners must deliver possession, though they are free to do so on a without prejudice basis. The attachment levied by the ED in respect of all 11 properties including the property at Sr No 8 will continue until further orders of this Court or of the appellate authority (yet to be appointed)", the High court had ordered.
On March 28, a bench led by Justice Khanwilkar issued the following order about the SLP: "The petitioners are permitted to serve advance copy of petition on the Standing Counsel for the Central Agency. List this matter on 01.04.2022"
The advocate for the petitioners told the bench on Friday that the copy of the petition was served on the central agency on March 30 in accordance with the March 28 order, but that the ED began the process of sealing the properties and obtaining "notional possession" of them the next day, on March 31.
"On March 28, when we had prayed for protection, Your Lordships had listed the matter for today and said that nothing is going to happen between then and now. But just a day after we served the petition on them, yesterday they have proceeded to do this even though we are before the Supreme Court", he urged.
"You would not be getting any instructions because the officers are bent on doing this!" Justice Khanwilkar noted when the attorney for the ED reminded the court that no instructions had been received in the instant case.
"Their submission is that the provisional attachment order was of June, 2021 and now the statutory period of 180 days has expired. We had listed this matter for today! Even if the order (of March 28, Monday) was not communicated to you, the petition was served on you! How could you attach it? Take corrective action or otherwise we will proceed in contempt against the officers! Undo that mischief!", reproached Justice Khanwilkar.
Following that, the bench issued the following order:
"It has been brought to our notice that pursuant to the order dated 28.3.2022, the petitioners served the copy of the petition on the central agency on 30.3.2022. The order of 28.3.2022 clearly records that the matter was to be taken up on 1.4.2022. Despite that, the officials of the respondent proceeded to seal the properties in question and take symbolic possession on 31.3.2022. The basic question involved here is whether the provisional attachment order dated 3.6.2021 ceases to be in force on the expiry of 180 days. If the issue is answered in favour of the petitioners, no action could be taken by the respondent authority on the basis of that order. The respondent is directed to explain the position and take remedial measures and submit response before the next date of hearing i.e. April 8, 2022”