ED can't avoid seeking confirmation of provisional attachment orders citing Supreme Court order on limitation extension: Calcutta High Court

The Calcutta High Court has held that the Enforcement Directorate (ED) in cannot avoid seeking a formal order of confirmation of its provisional attachment orders under the Prevention of Money Laundering Act (PMLA), by claiming the benefit of the suo motu order passed by Supreme Court on March 23, 2020 extending limitation to file cases in view of COVID-19 (Gobindo Das vs. Union of India).Single-judge Justice Md. Nizamuddin held that a provisional attachment order passed by ED officer under Section 5 of PMLA has to be necessarily confirmed by the Adjudicating Authority as provided under Section 8 of PMLA.The High Court noted that the Supreme Court order of March 2020 extending limitation with respect to filing petitions/ applications/ suits/ all other proceedings was intended to obviate the difficulties faced by lawyers/ litigants who had to come physically to file such proceedings in respective Courts/TribunalsAn Adjudicating Authority under PMLA cannot call himself a litigant falling within the scope of that order of the top court, the Calcutta High Court said.“Adjudicating authority/Respondent No. 2 cannot call himself a litigant or advocate or a Tribunal or a Court or a quasi-judicial authority within the ambit and scope of the aforesaid order of the Hon’ble Supreme Court in Suo moto Writ Petition (Civil) No. 3 of 2020 (supra) in defending the action of not passing the order under Section 8 (3) of the aforesaid Act,” the High Court judgment stated..The Court was hearing a challenge to a provisional attachment order passed by the ED on the ground that the order dated December 11, 2020 was no longer valid since no formal order of confirmation was passed within 180 days as mandated under the PMLA..On the other hand, the enforcement authorities opposed the petition on the ground that the provisional order stood extended automatically by virtue of the order of the Supreme Court dated March 23, 2020 extending limitation period..After considering the contentions of both parties, the High Court discussed the judgment in S Kasi vs. State, in which the Supreme Court had ascertained the scope of its order extending the period of limitation. The High Court found that the Supreme Court in that judgment had said that the suo motu order extending limitation was passed to ensure that lawyers and litigants don't face difficulties to appear in courts physically in the midst of pandemic. An Adjudicating Authority, the High Court said, did not fall within the ambit of that order..It was, therefore, concluded that the order of provisional attachment ceased to have any effect due to the failure of the ED to get the order confirmed within the prescribed period. In light of this, the banks and postal authorities were directed to allow the petitioner to operate his bank accounts and postal accounts..The High Court did, however, clarify that this order would not prevent the ED from passing final orders in the case.“This order will not prevent the Respondents Enforcement/Adjudicating authorities concerned from passing final order of adjudication in the relevant pending proceeding in question in accordance with law which according to the respondents has already been concluded and further legal consequence will follow on passing final order of adjudication by the Adjudicating authority concerned in proceeding in question.”.Advocates NK Chowdhury, Nilotpal Chowdury and Prabir Bera appeared for the petitioners. The respondents were represented by advocates Pinaki Bhattacharyya, Ranjan Roy, Punam Chowdhury, S Chatterjee and Sarbari Datta..[Read Judgment]