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2024 (5) TMI 778 - MADRAS HIGH COURTMoney Laundering - 'possession' of properties as envisaged under Section 8(4) of the Prevention of Money Laundering Act, 2002 - symbolic/constructive possession - HELD THAT:- Section 8(4) of the PMLA Act would envisage that the Director or any other officer authorised by him on confirmation of a provisional attachment can take possession of the property attached. It could also be seen that subsection (4) of Section 8 provides that the attachment or retention of the seized property shall continue during the pendency of the proceedings relating to any scheduled offence and would become final, if the guilt of a person is proved in trial. The learned Single Judge had interpreted the term 'possession' under Section 8(4) to be only constructive possession by holding that the rights of the person whose properties available under any other enactment would be affected, if they are physically dispossessed of the property. This is the main bone of the reasoning that had been assigned by the learned Single Judge in coming to such a conclusion. When an Act by a non obstante clause makes it clear that the said provision of the Act will have effect notwithstanding anything inconsistent contained in any other law, then the said enactment would prevail over all the existing laws. Therefore, the reasoning assigned by the learned Single Judge that the term 'possession' if would mean taking actual physical possession would affect the existing right available under any other law would have to fall, in view of Section 71 of the PMLA Act. Similarly under the Rule making power clauses (ee) to subsection (2) of Section 73, had been introduced and pursuant to the said Rule Making Power, the Central Government had also notified the Prevention of Money Laundering (taking possession of attachment or property confirmed by the Adjudicating Authority) Rules 2013, under Rule 5 of the said rules manner of taking possession of immovable property had also been enumerated - In view of the subsequent amendment, the PMLA Act empowers the authority under the said enactment can take physical possession of an immovable property, which had been attached under Section 8(3). The order passed by the learned Single Judge in reading down the term “possession” under Section 8(4) of the PMLA Act would have to be interfered with by us and the direction issued by the learned Single Judge to put back the respective Writ Petitioners in actual possession of the property would have to be set aside - Appeal allowed.
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