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TMI Blog2021 (12) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... ments mentioned in the schedule annexed to the summons. 2.The facts leading to the writ petitions is that, on reliable source information that T.Subramanaian had acquired and in possession of movable and immovable properties and pecuniary resources in his name and his wife's name [Rajeswari] disproportionate to his known source of income, the Deputy Superintendent of Police, Directorate of Vigilance and Anti-Corruption, Madurai, registered a case under Sections 13(2) r/w 13(1)(b) of Prevention of Corruption Act and Section 109 of IPC against the writ petitioners herein in Crime No.5 of 2021 on 16.04.2021. The said case is under investigation. 3.Meanwhile, the Enforcement Directorate on registration of complaint in the predicate offence disclosing prima facie case for money-laundering, had registered case in F.No.ECIR/MDSZO/16/2021 against the writ petitioners and had issued summons to them to appear and produce documents for the purpose of investigation. 4.The said summon dated 30.07.2021 is challenged in these writ petitions on the ground that, (a) The authorities of Enforcement Directorate acquire jurisdiction to commence investigation only after the conclusion / confirm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the jurisdiction of the Enforcement Directorate. The summons issued under Section 50 of the PMLA for production of records in their possession is misconstrued as a summon issued under Section 5 of the PMLA for provisional attachment. Culmination of filing charge sheet in the predicate offence is not a precondition to invoke the provisions of the PMLA. The contention of the writ petitioners that issuance of summon before filing of final report in the predicate offence lack jurisdiction is incorrect. The second proviso to Section 5 (1) (b) of the PMLA empowers the Enforcement Directorate to act and attach any property on formation of reason to believe that the said property is proceeds of crime. Filing of final report under Section 173 of Cr.P.C. before the Magistrate is not required while the power is exercised invoking the second proviso of Section 5(1)(b) of the PMLA. Further, after the amendment to the PMLA by insertion of Explanation to Section 44(1) of the PMLA any little ambiguity in the legislation is given quietus by removal of doubts that the offence under the PMLA during investigation, enquiry or trial will not depend upon any orders passed in respect of scheduled offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o remove the difficulties and doubts. Second proviso was inserted to Section 5(1) in the year 2015. The Sections which are relevant for the instant case were subjected to amendment earlier and as on the date of issuance of the impugned summons till now, the provisions read as below:- ''5.Attachment of property involved in moneylaundering. - (1) Where the Director, or any other officer not below the rank of Deputy Director authorised by the Director for the purposes of this section, has reason to believe (the reason for such belief to be recorded in writing), on the basis of material in his possession, that- (a) ..... (b) ..... Provided that no such order of attachment shall be made unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under Section 173 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint has been filed by a person authorised to investigate the offence mentioned in that Schedule, before a Magistrate or Court for taking cognizance of the scheduled offence, as the case may be, or a similar report or complaint has been made or filed under the corresponding law of any other country: Provided further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commissions for examination of 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 be bound to state the truth upon any subject respecting which they are examined or make statements, and produce such documents as may be required.'' 13.The fallacy in the petitioners' case can be put under two heads. First, the summons issued is not under Section 5 of the PMLA to provisionally attach the alleged proceeds of crime. It is a summon issued for production of documents and particulars sought in the Annexure to the summon. The writ petitioners presume the impugned summon is for provisional attachment. Through this summon, the documents and details are sought from the petitioners in connection with investigation and there is no ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances, the petitioners are expected to produce documents sought by the authorities and satisfy them that they are not involved in any act of money- laundering. Instead, under false pretext that the properties are likely to be provisionally attached before filing of final report in the predicate offence, the writ petitions are filed. 16.Having held that the summons issued by the respondent is well within their competency and jurisdiction, the only other point remains for consideration and intervention in these cases is the instruction in the impugned summon, that the recipient not to depart until permitted by the Assistant Director to do so. This instruction is not found in Form-V appended to Prevention of Money-Laundering (forms, search and seizure or freezing and the manner of forwarding the reasons and materials to the Adjudicating Authority, impounding and custody of records and the period of retention) Rule, 2005. 17.As pointed out by the learned counsel for the writ petitioners, while Section 50 (3) of the PMLA say all persons so summoned shall be bound to attend in person or through authorised agents and state the truth upon any subject respecting which they are examine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejudicial to the petitioners, the respondent is directed to issue fresh summons as per Form-V, fixing any future date for production of documents and other particulars. On receipt of the summons, the writ petitioners shall appear and produce the documents and particulars sought under the summons.
20.With the above observations, the Writ Petitions are disposed of. No costs. In view of disposal of the Writ Petitions filed to quash the impugned summon issued by the respondent, the applications viz.,W.M.P.(MD)Nos.12894 and 12896 of 2021 filed to amend prayer for a Writ of Certiorarified Mandamus, seeking to quash the impugned summon issued by the respondent, dated 30.07.2021, and consequently, direct the respondent not to issue summon in any other future dates till the final report under Section 173 of Cr.P.C. is filed before the Competent Court by the Vigilance and Anti-Corruption Wing, Madurai, in Crime No.5 of 2021, is preposterous and not maintainable, accordingly, dismissed. This Court expects that the issue is brought to a logical end as expeditiously as possible. A speedy trial is expected. Consequently, W.M.P. (MD)Nos.11499 and 11500 of 2021 are closed. X X X X Extracts X X X X X X X X Extracts X X X X
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