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2016 (5) TMI 120 - ANDHRA PRADESH HIGH COURT

2016 (5) TMI 120 - ANDHRA PRADESH HIGH COURT - TMI - Validity of summons issued under Section 50(2) and (3) of PMLA - whether summons are violative of the Constitutional protection and guarantee under Article 20(3) of the Constitution of India - Commission of an offence of money-laundering under Section 3 of PMLA punishable under Section 4 of PMLA, hence, ECIR - Held that:- ECIR is not filed before any jurisdictional Magistrate and is only an information report with the Directorate of Enforcemen .....

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r involvement, if any, in the offence under Section 3 of PMLA. Therefore, i am unable to equate ECIR registered by the first respondent to an FIR under Section 154 Cr.P.C and consequently, agreed with the learned Additional Solicitor General that under PMLA the petitioners are not accused at present. Consequently, therefore, the submission of the petitioners on the assumption that petitioners are accused under PMLA is liable to be rejected. Therefore, the summons issued to the second petitioner .....

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s are accused under Section 3 of PMLA. Therefore, the protection against testimonial compulsion as under Cr.P.C as well as under Article 20(3) of the Constitution of India, would not be available. Also as the petitioners are not accused under PMLA, the reading down of Section 50 of PMLA, even if permissible, would not arise on the facts and circumstances of the case. - Decided against the petitioner - Writ Petition Nos. 36838 of 2014 and 31143 of 2015 - Dated:- 29-2-2016 - Vilas V. Afzulpurkar, .....

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ny registered under the Companies Act and the second petitioner is its Managing Director. Petitioners state that the Central Bureau of Investigation (CBI) filed a charge sheet before the Special Court for CBI Cases, City Criminal Court, Nampally against various accused and petitioners 1 and 2 are shown as accused 3 to 12 respectively. The Special Court has already taken cognizance of the offences against all the accused on 13.05.2013. Petitioners deny the charge sheet framed against them by CBI. .....

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n the second petitioner requiring him to appear in person for making statement and for production of documents. The second petitioner, accordingly, is stated to have informed the first respondent, on legal advice, under reply dated 31.10.2014 that he was accused in CBI case and does not wish to give any statement by claiming protection under Article 20(3) of the Constitution of India. However, without responding to the said reply, the first respondent issued another summons dated 03.11.2014 to t .....

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ECIR registered by the first respondent is based upon the CBI case. However, the facts involved and the allegations in both the cases are same and offences alleged are substantially same, which are also scheduled offences under PMLA. Petitioners, being accused in the CBI case, the statement of second petitioner and the production of documents by him, as insisted upon by the first respondent under the impugned summons, would compel the second petitioner to give incriminating statement and documen .....

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he contents of the record are true etc. Hence, reliance is placed upon Article 20(3) of the Constitution of India, which provides that no person accused of any offence shall be compelled to be a witness against himself. Thus, the petitioners state that as they are accused in the CBI case and by virtue of the impugned summons, the first respondent is forcing and compelling the second petitioner to appear and give statement and that disobedience of the same is also a punishable offence. Hence, the .....

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f the Constitution of India. Hence, petitioners seek a Mandamus, as sought for. 3. This writ petition was listed for admission on 02.12.2014 and on request of the learned standing counsel for respondents, the following proceeding was recorded: Learned Standing Counsel requests time till 08.12.2014 to file counter. He further informs that he would advise his client to defer summoning of 2nd petitioner to any date other than 03.12.2014. At his request, post on 08.12.2014 in the motion list. Subseq .....

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ed another summons dated 24.06.2015. On the alleged ground of defiance of the summons, the first respondent exercised power under Section 63(4) of PMLA and initiated penal proceedings. Hence, questioning the said action of the first respondent in taking further steps including initiation of penal proceeding for alleged noncompliance of the summons issued, the present writ petition is filed seeking a Mandamus, as prayed for. 5. This writ petition came up before me on 23.09.2015 wherein I had gran .....

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38 of 2014 was in fact heard in part as per the orders of this Court, dated 16.12.2014, by the Hon ble Sri Justice P. Naveen Rao and the present Writ Petition is interlinked to the issue involved in that Writ Petition. It is therefore appropriate for the Registry to take necessary orders from the Hon ble the Acting Chief Justice for listing this Writ Petition along with W.P.No.36838 of 2014 before appropriate Bench. I have heard the learned Additional Solicitor General on 16.02.2016 and the repl .....

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regard to scheduled offences. (b) It is stated that the scope of investigation of the respondents is restricted to the probe into the aspects of proceeds of crime and subsequent money-laundering only. It is specifically stated that the role of the respondents is to investigate the aspects of proceeds of crime derived from the commission of scheduled offence and the subsequent money-laundering and not to investigate predicate offences. (c) It is stated that the first respondent is empowered under .....

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ng has been resorted to in this particular case based on the FIR registered by CBI. It is stated that ECIR is registered with the Director of Enforcement, as the respondents had reason to believe that offence of money-laundering has been committed. (d) It is stated that in terms of Section 50 of PMLA, the proceedings initiated by the first respondent are judicial proceedings within the meaning of Sections 193 and 228 of the Indian Penal Code and petitioners are obliged to appear. It is stated th .....

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is contended that the extraordinary jurisdiction of this Court cannot be invoked to nullify the summons issued for the purpose of investigation and Article 20(3) of the Constitution of India is not attracted. 7. The counter affidavit in WP.No.31143 of 2015 traverses the same allegations, as above and further states that in WP.No.36838 of 2014 no direction was given against taking further steps till eternity, as is evident from the order of the Court dated 02.12.2014 (extracted above). It is stat .....

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Magistrate, Nampally. Hence, it is stated that the present writ petition seeking declaration not to take any further proceedings in pursuance of the summons is misconceived. 8. Mr. P. Chidambaram, learned senior counsel for the petitioners, submitted that ECIR was registered on 30.08.2011 under Section 3 of PMLA against several persons and first petitioner is shown at Sl.No.26. Learned senior counsel contended that registration of ECIR is equal to registration of an FIR under Cr.P.C and the firs .....

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g documents with a threat of prosecution for giving false statement or false information. Learned senior counsel submits that such testimonial compulsion against the second petitioner would, undoubtedly, amount to incriminating him not only in the CBI case but also in the ECIR registered. 9. Learned senior counsel submits that the second petitioner obtained legal advice and submitted detailed reply to the first respondent expressing inability of the second petitioner to incriminate himself. Howe .....

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senior counsel, therefore, submits that compelling attendance of second petitioner by virtue of the impugned summons is violative of Article 20(3) of the Constitution of India as well as provisions of Section 91 of Cr.P.C. Learned senior counsel also pointed out that Section 24 of PMLA places burden of proof on the accused rather than on the prosecution, unlike any criminal case tried before ordinary criminal courts. 11. In order to substantiate his contentions, learned senior counsel places st .....

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in his custody to attend and produce a document. Learned senior counsel submits that the same analogy, while construing Section 50 of PMLA, would be applicable to the petitioners. Learned senior counsel also placed reliance upon the following decisions: MAHENDRAKUMAR KANHYALAL JAIN v. MAHAVIR URBAN COOPERATIVE CREDIT SOCIETY LTD. [2013 (6) Mh.L.J. ] wherein the aforesaid decision SHYAMLAL MOHANLAL CHOKSI (1 supra) was followed. The decision in M/S. TATA CONSTRUCION PROJECT LTD. V STATE OF JHARKH .....

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TE [AIR 1954 SC 300 ] for the proposition that the protection under the Constitution under Article 20(3) is available to a person, who is accused of an offence and protection against compulsion to be a witness, as it amounts to giving evidence against himself. Elaborating further learned senior counsel has drawn attention to the aforesaid decision where it holds in para 10 as under: 10. … The phrase used in Art. 20(3) is to be a witness and not to appear as a witness . It follows that the .....

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ion in this case. Based on the above, it is contended that formal accusation relating to commission of an offence is sufficient to attract the protection available to the petitioners. 13. Another Larger Bench judgment of the Supreme Court in STATE OF BOMBAY v. KATHI KALU OGHAD [AIR 1961 SC 1808] is also relied upon for the proposition that guarantee against testimonial compulsion includes not only oral testimony given in a Court or out of Court but also statement in writing, which incriminate a .....

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rd elaborate arguments for and against the views thus expressed by this Court, after full deliberation, we do not find any good reasons for departing from those views. But the Courts went on to observe that to be a witness means to furnish evidence and includes not only oral testimony or statement in writing of the accused but also production of a thing or of evidence by other modes … 14. Learned senior counsel also relied upon a decision of the Supreme Court in SELVI v. STATE OF KARNATAK .....

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ecision at paras 68 and 69 as follows: 68. The court recalls that, although not specifically mentioned in art. 6 of the Convention, the right to silence and the right not to incriminate oneself, are generally recognized international standards which lie at the heart of the notion a fair procedure under art. 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities thereby contributing to the avoidance of miscarriages of justice and to th .....

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. 69. The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the contracting parties to the Convention and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant .....

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ed to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends … … As the passage in Miranda implicitly recognizes, however, the privilege has never been given the full scope which the value it helps to protect suggest, History and a long line of authorities in lower courts have consistently limited its pro .....

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and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one s papers. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746. On the other hand, both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurement, to write or to speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. .....

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Law Commission discussed the right to silence, as quoted below: … The right to silence has various facets. One is that the burden is on the State or rather the prosecution to prove that the accused is guilty. Another is that an accused is presumed to be innocent till he is proved to be guilty. A third is the right of the accused against self incrimination, namely, the right to be silent and that he cannot be compelled to incriminate himself. There are also exceptions to the rule. An accus .....

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tled to keep his mouth shut and not answer any questions if the questions were likely to expose him to guilt. This protection was available before the trial and during the trial. The learned Judge observed as follows: … whether we consider the Talmudic Law or the Magna Carta, the Fifth Amendment, the provisions of other constitutions or Article 20(3), the driving force behind the refusal to permit forced self incrimination is the system of torture by investigators and courts from medieval .....

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crimination the Courts have required the prosecution to prove guilt beyond reasonable doubt and there has been no encroachment whether at the stage of interrogation or trial, into the right to silence vested in the suspect or accused … The Law Commission, ultimately, was of the opinion that no change in the law relating to right to silence of accused is necessary and if made, they will be ultravries Article 20(3) and Article 21 of the Constitution of India. 18. Mr. G. Rajagopalan, learned .....

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licitor General submits that proceedings as to investigation and adjudication are with reference to tracing out and tracking the proceeds of crime being alienated or transferred so as to defeat the process of law and submits that till the appropriate complaint under Section 3 of PMLA read with Section 200 Cr.P.C is filed by the Enforcement Directorate, the petitioners cannot be termed as accused so far as PMLA is concerned. Consequently, therefore, the power of investigating authorities under Se .....

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t the petitioners are accused. Learned Additional Solicitor General relied upon the objects and purpose of enacting PMLA and placed strong reliance upon the definition of person under Section 2(s) as well as Section 71 of PMLA. Learned Additional Solicitor General submits that the definition of a person is an inclusive definition, which covers the second petitioner and Section 71 of PMLA has given overriding effect over anything inconsistent contained in any other law. Learned Additional Solicit .....

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Paras 6 and 9 of the judgment is relied upon where the Supreme Court quoted a passage from R.C. MEHTA v. STATE OF WEST BENGAL [AIR 9170 SC 940]. At this stage, it is appropriate to notice the said passage from the decision above referred, as under: 7. In R. C. Mehta v. State of West Bengal, this point came up for consideration in the context of a statement recorded by an officer of Customs in an enquiry under Section 171-A of the Sea Customs Act. One of the contentions raised was, that a person .....

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goods to summon any person whose attendance he considers necessary, to give evidence or to produce a document or any other thing, and by clause (3) the person so summoned is bound to state the truth upon any subject respecting which he is examined or makes statements and to produce such documents and other things as may be required. The expression "any person" includes a person who is suspected or believed to be concerned in the smuggling of goods. But a person arrested by a Customs of .....

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oms officer does not at that stage accuse the person suspected of infringing the provisions of the Sea Customs Act with the commission of any offence. His primary duty is to prevent smuggling and to recover duties of customs when collecting evidence in respect of smuggling against a person suspected of infringing the provisions of the Sea Customs Act he is not accusing the person of any offence punishable at a trial before a magistrate". In view of the above passage, it was held in paras 6 .....

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whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in his prosecution, would fall within its ambit. … 9. The above-quoted observations are a complete answer to the contention of the appellant. In the light of these principles, it is clear that when the statement of the appellant was recorded by the Customs officer under Section 108, the appellant was not a person "accused of any offence" under the Customs Ac .....

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is taken up against them and they are only suspects of an offence under Section 3 of PMLA. 21. Another decision of the Supreme Court in POOLPANDI v. SUPERINTENDENT, CENTRAL EXCISE [(1992) 3 SCC 259] is relied upon where Sections 107 and 108 of the Customs Act were considered. Para 6 of the decision, being relevant, is extracted hereunder: 6. Clause (3) of Article 20 declares that no person accused of any offence shall be compelled to be a witness against himself. It does not refer to the hypoth .....

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onfessional statements made before the Customs Authorities, which was objected to on the ground that the same were inadmissible in evidence inter alia in view of the provisions of Article 20(3). While rejecting the objection, the Supreme Court held that in order that the guarantee against testimonial compulsion incorporated in Article 20(3) may be claimed by a person, it has to be established that when he made the statement in question, he was a person accused of an offence. Pointing out to the .....

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se he is found in possession of smuggled goods or on suspicion that he is concerned in smuggling is not when called upon by the Customs Officer to make a statement or to produce a document or thing, a person accused of an offence within the meaning of Article 20(3) of the Constitution. The steps taken by the Customs Officer are for the purpose of holding an enquiry under the Sea Customs Act and for adjudging confiscation of goods dutiable or prohibited and imposing penalties. The Customs Officer .....

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relevant decisions and deep deliberation on the issue, and cannot be ignored on the strength of certain observations in the judgment by three learned Judges in Nandini Satpathy case which is, as will be pointed out hereinafter, clearly distinguishable. 22. Another decision of the Supreme Court in RAMANLAL BHOGILAL SHAH v. D.K. GUHA [(1973) 1 SCC 696] is also relied upon by the learned Additional Solicitor General and particularly, para 24 thereof, which discusses the meaning of accused under the .....

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tate of Bombay v. Kathi Kalu Oghad [AIR 1961 SC 1808] as follows: "In order that a testimony by an accused person may be said to have been self- incriminatory the compulsion of which comes within the, prohibition of the constitutional provision, itmust be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. In. other words, it should be a statement which makes the case against the accused person at least probable, con .....

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derlying the rule against "testimonial compulsion" we have already discussed above. There is little risk, if at all, in the investigator or the prosecutor being induced to lethargy or inaction because he can get such handwriting or impressions from an accused person. For, by themselves they are of little or of no assistance to bring home the guilt of an accused. Nor is there any chance of the accused to mislead the investigator into wrong channels by furnishing false evidence. For, it .....

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der the provisions of S.73 of the Indian Evidence Act; though we have not been able to agree with the view of our learned brethren that to be a witness" in Art.20(3) should be 'equated with the imparting of personal knowledge or that an accused does not become a witness when he produces some document not in his own hand- writing even though it may tend to prove facts in issue or relevant facts against him. 24. Learned Additional Solicitor General submitted that mere issue of summons doe .....

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NDUSTRIES LTD. [(2007) 7 SCC 53] and the relevant paras 40, 41 and 46 are extracted hereunder: 40. As held by Constitution Bench of this Court in Ramesh Chandra Mehta v. State of W.B, a person called upon to make a statement before the Custom Authorities cannot be said to be an accused of an offence. It is, therefore, clear that if a person is called upon to make a statement under Section 108 of the Act and summon is issued for the said purpose, he is bound to comply with such direction. This vi .....

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at such statement could be used against him. The said requirement is included in the provision for the purpose of enabling the gazetted officer to elicit the truth from the person interrogated. There is no involvement of the magistrate at that stage. The entire idea behind the provision is that the gazetted officer questioning the person must gather all the truth concerning the episode. If the statement so extracted is untrue its utility for the officer gets lost". It is thus clear that sta .....

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ASSISTANT DIRECTOR, DIRECTOR OF ENFORCEMENT [2014 SCC Online Mad 3980] . 26. The decision of this Court in KOLAKALAPUDI BRAHMA REDDY v. UNION OF INDIA [2014 (5) ALT 369] is also relied upon is relied upon wherein similar summons under PMLA was questioned and it was held in para 12 as under: 12. Furthermore, in this case, it is not a case of attachment of the property. Section 50(2) of the Act, vests power in the competent authority to summon any person whose attendance he considers necessary wh .....

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it was held in paras 59 and 60 as follows: 59. To put it succinctly, the initiation of proceedings like issuance of summons etc. in Prevention of Money-Laundering Act are selfcontained, in-built and independent procedure mainly to prevent the act of money-laundering and connected activities. Furthermore, the Respondent has issued only summons dated 10.04.2013 to the Petitioners and the issuance of summons cannot be categorized as an act of prosecuting the Petitioners twice. As such, the plea of .....

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Director, Directorate of Enforcement, Chennai with records mentioned therein for the purpose of enquiry/investigation under the Prevention of Money-Laundering Act to ascertain the proceeds of crime, in the considered opinion of this Court. The proceedings under the Prevention of Money-Laundering Act are deemed to be judicial proceedings within the meaning of Section 193 and under Section 228 of the Indian Penal Code. However, the charge sheet filed by the Police in C.C.No.88 of 2011 relates to i .....

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rs. Moreover, the summons issued to the Petitioners is a preliminary one relating to the investigation under the Prevention of Money- Laundering Act by the authority concerned. The fact of the matter is that the Adjudicating Authority/machinery under the Prevention of Money-Laundering Act is designated to adjudge the breach of any statutory obligation and it is not a Court of Law or a Judicial Tribunal, in the considered opinion of this Court. Moreover, the Adjudicating Authority under the Preve .....

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he provisions of Section 50 of PMLA deserves to be read down in the facts and circumstances of the case so as to restrict its operation and exclude the accused person. Reliance is also placed on another decision of the Supreme Court in M. RATHINASWAMI v. STATE OF TAMIL NADU [(2009) 5 SCC 625] for the proposition that in order to save a statutory provision from the views of unconstitutionality, sometimes restricted or extended interpretation of the statute has to be given and the Court would pref .....

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No.36838 of 2014: 29. In the light of the detailed submissions of the learned senior counsel on either side, the point for consideration is: Whether the summons issued to the second petitioner under Section 50 (2) and (3) of PMLA is violative of the Constitutional protection and guarantee under Article 20(3) of the Constitution of India. POINT: 30. Section 50 of PMLA may be noticed at this stage under: 50. Powers of authorities regarding summons, production of documents and to give evidence, etc .....

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witnesses and documents; and (f) any other matter which may be prescribed. (2) The Director, Additional Director, Joint Director, Deputy Director or Assistant Director shall have power to summon any person whose attendance he considers necessary whether to give evidence or to produce any records during the course of any investigation or proceeding under this Act. (3) All the persons so summoned shall be bound to attend in person or through authorised agents, as such officer may direct, and shall .....

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period, as he thinks fit, any records produced before him in any proceedings under this Act: Provided that an Assistant Director or a Deputy Director shall not- (a) impound any records without recording his reasons for so doing; or (b) retain in his custody any such records for a period exceeding three months, without obtaining the previous approval of the Director. 31. The purport of Section 50 of PMLA and its reach can be appropriately appreciated by examining Section 108 of the Customs Act a .....

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n behalf of the learned senior counsel for the petitioners is on the premise that the petitioners stand in the capacity of accused in the pending CBI case, as referred to above. Based on the selfsame case instituted by the CBU, the authorities under PMLA have registered an Enforcement Case Information Register (ECIR) where also the second petitioner figures at Sl.No.4 in Annexure C and at Sl.No.26 in Annexure B. 34. Learned senior counsel would, therefore, contend that in the counter affidavit f .....

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of PMLA under Cr.P.C. Based on the above, further contention is raised that testimonial compulsion is impermissible not only under Cr.P.C but also under Article 20(3) of the Constitution of India. Elaborating further it is also contended that Section 50(2) of PMLA does not include an accused person. 35. Several decisions of the Supreme Court are relied upon in support of the contentions, as above, which are already referred to in detail in the foregoing paras. Reference is, however, made to the .....

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ontended that Section 50 (2) of PMLA would not apply to and include accused persons on the basis of decision in SHYAMLAL MOHANLAL CHOKSI s case (1 supra) and that principle was reiterated in various decisions of the Supreme Court, which are referred to above. It is also contended that in response to any such summons under Section 50 of PMLA, petitioners have a right to maintain silence under Article 20(3) of the Constitution of India and not obliged to answer the questions or give information or .....

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t this stage and merely suspects. It is specifically contended that only when the Enforcement Directorate files a complaint under Section 3 of PMLA read with Section 200 Cr.P.C, the petitioners can be termed as accused so far as PMLA is concerned. It is contended that investigation, adjudication and criminal prosecution are separate stages and at present, the proceedings are only at the stage of investigation. The filing of charge sheet by the CBI before the Special Court is, therefore, differen .....

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the principal investigation agency which registered the case against any of the offenders. The role of the respondent is to investigate the aspect of proceeds of crime derived from the commission of scheduled offences and the subsequent money laundering and not to investigate the predicate offences. 38. In that context, learned Additional Solicitor General submits that the summons is issued to any person whose attendance is considered necessary to give evidence or produce any records during the .....

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, at this stage, that petitioners are accused under PMLA. 39. Undoubtedly, the protection under Cr.P.C as well as under Article 20(3) of the Constitution of India against testimonial compulsion is now well settled by several decisions of the Supreme Court, which are already referred to above and the law declared thereunder, undoubtedly, would assist the petitioners, if it is shown that petitioners are accused under PMLA. 40. The counter affidavit of the first respondent states in para 8 that CBI .....

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ed by the Assistant Director III and counter signed by the Deputy Director. Annexure A givens brief facts, which refers to the case registered by CBI and the FIR filed by CBI, which contains details of the beneficiary, investors, investments made and benefits received from the Government under annexures. It, further, states that the aforesaid mentioned information/material, prima facie, discloses commission of an offence of money-laundering under Section 3 of PMLA punishable under Section 4 of P .....

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though the charge sheet filed by the CBI is to the extent of predicate offences, so far as offence under Section 3 of PMLA is concerned, the matter is clearly at the investigation stage. Investigation is defined under Section 2(na) of PMLA, which is as follows: 2 (na) investigation includes all the proceedings under this Act conducted by the Director or by an authority authorised by the Central Government under this Act for the collection of evidence. Proceeds of crime are defined under Section .....

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juridical person, not falling within any of the preceding sub-clauses, and (vii) any agency, office or branch owned or controlled by any of the above persons mentioned in the preceding sub-clauses; 43. At this stage, therefore, investigation is only for the purpose of collecting evidence with regard to proceeds of crime in the hands of the persons suspected and their involvement, if any, in the offence under Section 3 of PMLA. I am, therefore, unable to equate ECIR registered by the first respon .....

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the Sea Customs Act. Hence, at this stage, it is relevant to notice the decision of the Supreme Court in ASSTT. CCE v. DUNCAN AGRO INDUSTRIES LTD. [(2000) 7 SCC 53] . Paras 9, 11 and 13 are relevant for our purpose, which are extracted hereunder: 9. It must be remembered that Section 171A of the Sea Customs Act, 1878 (which enactment has been repealed by the Sea Customs Act) corresponds to Section 108 of the Customs Act. In this context we may point out that Section 14 of the Central Excise Act .....

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e officer to state the truth upon any subject respecting which he is examined. He is not excused from speaking the truth on the premise that such statement could be used against him. The said requirement is included in the provision for the purpose of enabling the gazetted officer to elicit the truth from the person interrogated. There is no involvement of the magistrate at that stage. The entire idea behind the provision is that the gazetted officer questioning the person must gather all the tr .....

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ut are statements made in answer to a notice under sec.171-A of the Sea Customs Act. As they are not made subject to the safeguards under which confessions are recorded by Magistrates they must be specially scrutinised to finding out if they were made under threat or promise from some one in authority. If after such scrutiny they are considered to be voluntary, they may be received against the maker and in the same way as confessions are received, also against a co-accused jointly tried with him .....

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on". Counsel for Mehta urged that the earlier authorities were superseded in Kathi Kalu Oghad case and it was ruled that a statement made by a person standing in the character of a person accused of an offence is inadmissible by virtue of Article 20(3) of the Constitution. But the Court in Kathi Kalu Oghad case has not set out a different test for determining the stage when a person may be said to be accused of an offence. In Kathi Kalu Oghad case the Court merely set out the principles in .....

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here a Customs Officer arrests a person and informs that person of the grounds of his arrest, (which he is bound to do under Article 22(1) of the Constitution) for the purpose of holding an enquiry into the infringement of the provisions of the Sea Customs Act which he has reason to believe has taken place, there is no formal accusation of an offence. In the case of an offence by infringement of the Sea Customs Act and punishable at the trial before a Magistrate there is an accusation when a com .....

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, it would be clear that when an ECIR is lodged with the Directorate of Enforcement there is no Magisterial intervention unlike an FIR and mere registration of ECIR against the suspects of offence under Section 3 of PMLA cannot go to mean that such persons are accused under Section 3 of PMLA. Consequently, therefore, the protection against testimonial compulsion as under Cr.P.C as well as under Article 20(3) of the Constitution of India, in my view, would not be available, as claimed by the peti .....

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s case (1 supra). 49. In view of the point already answered that petitioners are not accused under PMLA, in my view, the reading down of Section 50 of PMLA, even if permissible, would not arise on the facts and circumstances of the case. Point No.3 is accordingly answered. Consequently the writ petition fails and is accordingly dismissed. WP.No.31143 of 2015: 50. This writ petition was also filed by the petitioners questioning the further action taken by the respondents against the petitioners u .....

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