TMI Blog2022 (3) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... summon any person whose attendance is considered necessary. The main challenge of the petitioners is that the respondent/Agency is proceeding with the issuance of summons under Section 50 of the PMLA to the petitioners without supplying copy of the aforesaid ECIR to them which is against the law. The provisions of the PMLA indicate that it is a special act and is a complete code in itself, which does not come into the preview of other criminal law statute. No one can take benefit of the ground that there is a possibility of him getting prosecuted in future and under Section 50 of the PMLA, it is not mandatory that before appearing in front of the authority, a copy of ECIR is to be supplied therefore the petitioners cannot claim copy of ECIR as a right. It is clear from the documents filed by both the parties that the petitioner was not acquitted in the FERA case but was imposed with fine after which the authorities started investigation under PMLA. The impugned summons were issued under Section 50 PMLA and there is nothing on record by which it can be inferred that the issuance of summons by the respondents for investigation has caused or has the effect of causing any prejud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents to provide copy of ECIR and reasonable time to file reply. The aforesaid writ petition was heard at length and at one point of time was also reserved for judgment but the matter was released vide order dated 07.06.2021. Now the respondents have issued fresh summons on 19.07.2021 rendering the earlier writ petition academic and hence, the present petition has been by the petitioners through this petition. Petitioners have demanded the copy of ECIR from the respondents for proper reply and preparation of the same. 5. Contention of counsel for the petitioner is that the copy of the ECIR is necessary for their reply but the same has not been given denying the rights of the petitioner guaranteed under Article 20(2) of the Constitution of India. The petitioners have also been denied legal representation and personal presence has been enforced by the impugned summons which is also contrary to the right to fair trial as held by the Apex Court in the matter of Subedar Vs. State of UP reported in 2020 SCC Online SC1084 . He further submits that in the matter of Youth Bar Association Vs. Union of India reported in (2016) 9 SCC 473 it has been held by the Apex Court that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... choose method to supply copy of ECIR. He has placed his reliance in the matter of Virbhadra Singh Vs. Enforcement Directorate in WPCr No. 3107/2015 vide order dated 07.01.2016 and Vijay Kumnar Kushwaha Cs. Director PMLA 2014 SCC Online Utt 84. He submits that the copy of ECIR is supplied to the petitioners they have been denied which is discriminatory action on the part of Enforcement Directorate. 7. On the other hand counsel for the respondent (ED) submits that the malice of Money laundering posses a serious threat not only to the financial systems of the counties but also to their integrity and sovereignty. It has been felt that to prevent money-laundering and connected activities a comprehensive legislation is urgently needed. To achieve this objective, the Prevention of Money Laundering Bill 1998 was introduced in the Parliament and after that the Prevention of Money Laundering Act 2002 came into force. The FIR bearing No. 06/2017 dated 14.02.2017 was registered by the State Economic Offence Wing/Anti Corruption Bureau, Raipur (CG) invoking Section 13(2) r/w 13(1) (e) of the Prevention of Corruption Act, 1988 against the petitioner ie. M.L.Pandey, Additional Director, So ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioners to record their statements giving evidence or to produce documents well within their jurisdiction as contained in the PMLA and have committed no illegality. Therefore, the allegations of the petitioners that the respondents/authorities are creating pressure upon them is rickety and baseless. 10. The petitioners cannot, as of right, dishonour or defy the summons issued under Section 50 of the PMLA as the same is issued with the authority of law by the respondent/authorities. PMLA nowhere mandatorily provides for affording a copy of the ECIR beforehand, to the person being called to record statements, give evidence or to produce documents during the ongoing PMLA investigation. The clandestine motive of the petitioners is to somehow derail the ongoing process of PMLA investigation by filing frivolous petitioners before this Court by making baseless allegations against the respondent/authorities and praying for such relief which have no legal basis. Despite the fact that as submitted by the petitioners, themselves in their pleadings, opportunities and time was granted to them to appear before the respondent. 11. The grounds raised by the petitioner are completely mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot the accused till date and the legal status of the petitioners as accused or witness , would be decided after the enquiry under Section 50 of the PMLA is concluded and a decision to proceed under either Section 5(5), 17 (4) or 18(10) before the adjudicating authority is provided under the Section of PMLA before the Adjudicating Authority as provided under Section 6 o f the PMLA. After such decision to prosecute the petitioners is taken then the stage for grant of copy of all the relied upon documents including the ECIR would arise and not prior to that. He further submits that a Five Judge Bench of the Hon ble Supreme Court in the case of Ramanlal Bhogilal Shah and Another Vs. D.K.Guha and Others (1973)1 SCC 696 while considering the validity of the summons issued by the Enforcement Directorate under Section 19(F) of the Foreign Exchange Regulations Act 1947 is dwelled upon the issues as to whether the petitioner therein shall be a person accused of an offence within Article 20 (3) of the Constitution of India. In para 17 following submissions were made : 17. Learned counsel for the petitioner, however, contends that the facts here are different. He says that under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of that case that the person served with summons under the FERA was a accused within the meaning of Article 20(3) of the Constitution of India. The decision in Ramanlal Bhogilal has taken a different view to that of Ramesh Chandra Mehta which view was examined in Poolpandi and was distinguished on the ground that a first information report in Ramanlal Bhogilal Shah has been lodged earlier and consequently it was settled that the person was accused of an offence within the meaning of Article 20(3). 16. Counsel for the petitioner submit that it is undisputed that the Enforcement Case Information Report is the first document from where the investigation of the Enforcement Directorate commences. It is also undisputed that without ECIR the investigation under Section 2 (na) of the PMLA cannot be taken up. Hon ble Apex Court in the case of Samaj Parivarthan Samudaya and Others Vs. State of Karnatka and Others reported in (2012) 7 SCC 407 has held thus : 25. The machinery of criminal investigation is set into motion by the registration of a First Information Report (FIR), by the specified police officer of a jurisdictional police station or otherwise. The CBI in terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commission of offence. Requirements of Section 157 are higher than the requirements of Section 154 of the Criminal Procedure Code. Further, a police officer in a given case after investigation can file a final report under Section 173 of the Criminal Procedure Code seeking closure of the matter. 17. Therefore counsel for the petitioner submits that it can be safely said that ECIR is certainly akin to FIR as it sets the investigation in motion in PMLA. There is no other document than the FIR to empower the investigating agency to initiate investigation. 18. It is thus clear from the documents that the investigation under the PMLA is initiated against the petitioner and impugned summons are issued under Section 50 of the PMLA. Section 50 of the PMLA is as under: 50. Section 50 PMLA is quoted below for ready reference. 50. Powers of authorities regarding summons, production of documents and to give evidence etc. - I) The Director shall, for the purposes of Section 13, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:- (a) discovery and inspection; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The enforcement machinery is conferred with the power and jurisdiction for investigation, such powers being quite exhaustive to assure effective investigation and with built-i safeguards to ensure, fairness, transparency and accountability at all stages. The powers conferred on the enforcement officers for purposes of complete4 an effective investigation include the power to summon and examine any person . The law declares that every such person who is summoned is bound to state the truth. At the time of such investigation process, the person summoned is not an accused. Mere registration of ECIR does not make a person an accused. He may eventually turn out to be an accused upon being arrested or upon being prosecuted. No person is entitled in law to evade the command of the summons issued under Section 50 PMLA on the ground that there is a possibility that he may be prosecuted in the future. The law declared in Nandini Satpathy (supra) concerning the statements under Section 161 Cr.P.C. recorded by the police and in other pronouncements concerning similar powers of officers of the Customs Department, as noted earlier, provide a complete answer to the apprehensions that have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uard, because neither Section 19(1) nor the definition of the word order as given in Sub-Clause (h) of Rule 2, provides that the grounds for such arrest are to be provided in writing to the person arrested. It indicates that oral communication of the grounds of arrest is not only a substantial but proper compliance of the provision. 24. In the Criminal Procedure Code, Section 207 provides as under : 207. Supply to the accused copy of police report and other documents- In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following. (1) the police report; (ii) the first information report recorded under Section 154; iii) the statements recorded under sub-section (3) of Section 161 of all persons whom the prosecution purposes to examine as its witnesses, excluding therefrom, any part in regard to which a request for such exclusion has been made by the police officer under sub-section (6) of Section 173; (iv) the confessions and statements, if any, recorded under Section 164; v) any other document or relevant extract thereof forwarded to the Magistra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and sharp tools like PMLA to eradicate corruption once and for all. It is our responsibility that no one can take advantage of the grey areas and loopholes. 26. The provisions of the PMLA indicate that it is a special act and is a complete code in itself, which does not come into the preview of other criminal law statute. No one can take benefit of the ground that there is a possibility of him getting prosecuted in future and under Section 50 of the PMLA, it is not mandatory that before appearing in front of the authority, a copy of ECIR is to be supplied therefore the petitioners cannot claim copy of ECIR as a right. It is clear from the documents filed by both the parties that the petitioner was not acquitted in the FERA case but was imposed with fine after which the authorities started investigation under PMLA. The impugned summons were issued under Section 50 PMLA and there is nothing on record by which it can be inferred that the issuance of summons by the respondents for investigation has caused or has the effect of causing any prejudice to any of the petitioners. Therefore, at this stage, the supply of a copy of ECIR is not necessary. Accordingly, the petitions being foun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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