TMI Blog2023 (11) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... such person is being examined or is expected to make statement and produce documents as may be required in a case. The investigation in the present ECIR is still continuing and the petitioner has only been summoned to appear and submit certain documents. Even otherwise, this Court has taken note of the order dated 10.05.2023 wherein the learned ASG had fairly submitted that the respondent will not take any action in respect of summons which have already been issued to the petitioner herein i.e. the nine summons issued to the petitioner till 21.03.2023, out of which the petitioner had appeared and got his statement recorded on one occasion - this Court finds no ground to quash the summons issued under Section 50 of PMLA to the petitioner. Seeking quashing of ECIR - HELD THAT:- This Court notes that the petitioner himself is not aware as to whether he is being summoned under Section 50 of PMLA as an accused or as a witness. It is also important to take note of the contents of the status report and the written submissions filed by respondent, i.e. Directorate of Enforcement in which it has been clearly stated that as of now, the respondent has not filed any prosecution compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Code of Criminal Procedure, 1973 ( Cr.P.C. ) has been filed on behalf of petitioner seeking issuance of a writ of certiorari and/or any other appropriate writ, order or direction for quashing and/or seeking setting aside the ECIR/17/HIU/2020 and the summons dated 21.03.2023 issued by the respondent summoning the petitioner to appear at New Delhi on 29.03.2023 under Section 50 of the Prevention of Money Laundering Act, 2002 ( PMLA ) and further directing and issuing an appropriate writ, order or direction to not summon the petitioner to New Delhi in case arising out of ECIR/17/HIU/2020 registered by the respondent on 28.11.2020. BACKGROUND FACTS: THE PROSECUTION S CASE 2. The case of the prosecution, in brief, is that the FIR/RC bearing no. RC0102020A0022 dated 27.11.2020 was registered by Central Bureau of Investigation ( CBI ), ACB, Kolkata for the commission of offences under Sections 120B/409 of Indian Penal Code, 1860 ( IPC ) and Section 13(2) read with 13(1)(a) of the Prevention of Corruption Act, 1988 ( PC Act ) for illegal excavation and theft of coal from the leasehold area of Eastern Coalfield Ltd. ('ECL') in active connivance with officials of EC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the tune of Rs. 2742.32 crores were generated from the illegal coal mining business from various parties/entities/persons. 4. It is also stated in the reply filed by respondent that in the course of investigation, it was deemed necessary that Moloy Ghatak i.e. petitioner herein be examined. As such, for further investigation, petitioner was summoned by Directorate of Enforcement to appear on 09 dates i.e. 14.09.2021, 23.09.2021, 11.10.2021, 28.10.2021, 02.02.2022, 08.02.2022, 07.04.2022, 15.07.2022 29.03.2023. However, he had appeared before the agency only once on 28.10.2021. PETITIONER S GRIEVANCE 5. The grievance of petitioner is that respondent agency, i.e. Directorate of Enforcement has issued the impugned summons to the petitioner in a mala-fide manner intending to harass him. It is his case that the impugned summons have been issued in complete violation of the established and fundamental principles of Cr.P.C., PMLA and the Constitution of India. Furthermore, the respondent has acted in a completely arbitrary and high-handed manner while repeatedly summoning the Petitioner to appear in New Delhi despite having a fully functional zonal office in Kolkata, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmoned as a witness or accused person or indicating the scope of the investigation being carried out and further enabling the petitioner to avail his remedies. It is stated that respondent cannot issue Section 50 PMLA notices to compel the presence of persons it has identified as accused persons, and further compel them to give statements and hand over documents under a coercive process. It is stated that officers of the respondent agency have sought voluminous material from the petitioner, whom they are identifying as accused person, which is contrary to the law. It is stated that since the scheduled offences are alleged to have been committed in West Bengal, the investigation in respect of the same is ongoing in West Bengal, and the accused persons named in the RC/FIR registered by the CBI are residents of West Bengal, therefore, there exists no jurisdiction of the Head Investigative Unit of the respondent agency to assume investigative powers in respect of any allegations of money laundering arising in respect of the scheduled offence as the same could only have been investigated into by the concerned zonal office at Kolkata. It is submitted that it is clear from a perusal of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ek the relief of quashing of ECIR. It is also submitted that despite the directions of this Court vide order dated 10.05.2023, the petitioner had not appeared before the respondent on 21.06.2023, 26.06.2023 and 25.07.2023 so as to scuttle the investigative process. It is also argued that ECIR is an internal document created by the respondent agency and the petitioner is not entitled to get a copy of the same. It is further argued that interim order passed in case of Abhishek Banerjee Anr. v. Directorate of Enforcement SLP Crl. No.28062807/2022 by the Hon ble Apex Court has no applicability in the facts of present case. Therefore, it is prayed that present petition be dismissed. 11. This Court has heard arguments addressed by learned Senior Counsel for the petitioner as well as learned Special Counsel for the Directorate of Enforcement and has perused the material placed on record. ANALYSIS AND FINDINGS 12. In the present case, the main grievance of the petitioner is that he has been repeatedly summoned by the Directorate of Enforcement directing him to appear for questioning at the New Delhi office in connection with present ECIR, though he resides in Kolkata, W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... List on 10.08.2023 16. It is the case of respondent now that pursuant to order dated 10.05.2023, the respondent had issued summons to the petitioner on 31.05.2023 for 21.06.2023, on 21.06.2023 for 26.06.2023 and on 04.07.2023 for 25.07.2023, however, the petitioner again failed to appear on these dates. To the contrary, the petitioner submits that he had written to the respondent on 19.06.2023 requesting that petitioner may be called on any date after 11.07.2023 in view of upcoming Panchayat Elections in West Bengal. Thereafter, a similar request was again made by petitioner with respect to summons dated 21.06.2023. Further, the petitioner had written a letter dated 21.07.2023 to the respondent stating that he would not be able to appear before the respondent agency on 25.07.2023 due to a scheduled Cabinet meeting and upcoming Assembly Session. 17. Thereafter, vide order dated 05.09.2023, the learned Predecessor of this Court had issued the following directions: 3. However, without going into the merits of the case and taking into account the age of the petitioner and his health condition as stated at BAR by the learned senior counsel for the petitioner, the followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder sub-sections (2) and (3) shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Penal Code, 1860 (45 of 1860). (5) Subject to any rules made in this behalf by the Central Government, any officer referred to in sub-section (2) may impound and retain in his custody for such 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 Joint Director. 20. In Vijay Madanlal Choudhary v. Union of India 2022 SCC OnLine SC 929 , the Hon ble Apex Court had discussed the scope of Section 50 and the power to issue summons therein, by way of following observations: 425. Indeed, sub-section (2) of Section 50 enables the Director, Additional Director, Joint Director, Deputy Director or Assistant Director to issue summon to any person whose attendance he considers necessary for giving evidence or to produce any recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the inquiry made, may disclose commission of offence of money-laundering and the involvement of the person, who has been summoned for making disclosures pursuant to the summons issued by the Authority. At this stage, there would be no formal document indicative of likelihood of involvement of such person as an accused of offence of money-laundering. If the statement made by him reveals the offence of money-laundering or the existence of proceeds of crime, that becomes actionable under the Act itself. To put it differently, at the stage of recording of statement for the purpose of inquiring into the relevant facts in connection with the property being proceeds of crime is, in that sense, not an investigation for prosecution as such; and in any case, there would be no formal accusation against the noticee. Such summons can be issued even to witnesses in the inquiry so conducted by the authorised officials. However, after further inquiry on the basis of other material and evidence, the involvement of such person (noticee) is revealed, the authorised officials can certainly proceed against him for his acts of commission or omission. In such a situation, at the stage of issue of summ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inating was detected in the said search. It was further averred therein that the Officers threatened that the petitioner would be arrested, incarcerated in jail and would face dire consequence if he would not submit to their dictates. On that basis the writ petition came to be filed in this Court under Article 32 of the Constitution of India. We, therefore, expressed that it was highly premature for the petitioner to seek for extraordinary constitutional remedy under Article 32 of the Constitution of India based on such flimsy averments contained in the writ petition, inasmuch as such averments cannot form the basis for a prima facie apprehension of arrest. We, therefore, also expressed that the writ petition does not merit any consideration to be dealt with on the various issues raised, inasmuch as it will be for the petitioner to work out his remedy as and when any appropriate positive action is taken against the petitioner. In the course of hearing, learned Senior Counsel appearing for the petitioner now seeks to withdraw the writ petition reserving petitioner's liberty to work out his remedy in future, if any such situation arises... 23. Similarly, in case of Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering Act, 2002 is a complete Code which overrides the general criminal law to the extent of inconsistency. This law establishes its own enforcement machinery and other authorities with adjudicatory powers and jurisdiction. The enforcement machinery is conferred with the power and jurisdiction for investigation, such powers being quite exhaustive to assure effective investigation and with built-in safeguards to ensure fairness, transparency and accountability at all stages. The powers conferred on the enforcement officers for purposes of complete and 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 investigative 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt to examine the contents of the same ii. The petitioner is himself not aware whether he is an accused or not in the ECIR and states that he apprehends his implication in the case merely because he is being repeatedly summoned iii. It is also not mandatory for the Directorate of Enforcement to furnish a copy of ECIR to the person who is under investigation, as held by Hon ble Apex Court in Vijay Madanlal Choudhary (supra), and the petitioner herein has only been summoned under Section 50 of PMLA. iv. The respondent has submitted before this Court that as of now, the petitioner is not an accused for offence under PMLA and he is only being summoned under Section 50 of PMLA for the purpose of collecting information or evidence in respect of proceedings under PMLA and not necessarily for the purpose of initiating prosecution against him. 29. This Court has also considered the decision of Hon ble Apex Court in case of Hukum Chand Garg Ors. v. The State of Uttar Pradesh Ors. SLP(Crl.) No. 762/2020 in which it was held that a person who is named in the ECIR cannot seek its quashing. The relevant portion of the decision reads as under: ...It is not in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und to attend in person or through authorised agent and to state truth upon any subject concerning which he is being examined or is expected to make statement and produce documents as may be required by virtue of sub-section (3) of Section 50 of the 2002 Act. The criticism is essentially because of subsection (4) which provides that every proceeding under sub-sections (2) and (3) shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the IPC. Even so, the fact remains that Article 20(3) or for that matter Section 25 of the Evidence Act, would come into play only when the person so summoned is an accused of any offence at the relevant time and is being compelled to be a witness against himself. This position is well-established . (emphasis supplied) (iii) Interim Order of No Coercive Steps 34. This Court notes than an application was also moved on behalf of the petitioner seeking an interim order of no coercive steps in relation to present ECIR on the grounds that firstly, the petitioner is a public functionary and serving as a Cabinet Minister in Government of West Bengal, secondly, that he is suffering from several medical a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... culminate into the arrest of person being so summoned. By the decisions of Hon ble Apex Court in cases of Vijay Madanlal Choudhary (supra), V. Senthil Balaji v. State 2023 SCC OnLine SC 934 and Pankaj Bansal v. Union of India 2023 SCC OnLine SC 1244 , the law on exercise of power under Section 19 and the inherent safeguards therein and the duty of the concerned authority/officer to comply with the mandate of the Act also stands settled. 41. While adjudicating upon such a prayer, this Court deems it appropriate to refer to the decision of the Hon ble Apex Court in case of Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra Ors. 2021 SCC OnLine SC 315, whereby the Hon ble Apex Court had cautioned the High Courts to not pass order of no-coercive steps in petitions filed under Article 226 of Constitution of India or Section 482 of Cr.P.C. since the same essentially reduces such proceedings to the nature of anticipatory bails. The observations of the Hon ble Apex Court in this regard read as under: 67. This Court in the case of Habib Abdullah Jeelani (supra), as such, deprecated such practice/orders passed by the High Courts, directing police not to arrest, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igation is completed and the final report is filed, while not entertaining quashing petitions under Section 482 Cr. P.C. and/or Article 226 of the Constitution of India. 42. A similar prayer seeking no-coercive steps upon issuance of summons under Section 50 of PMLA was sought by the petitioner in Ashish Mittal v. Directorate of Enforcement 2023 SCC OnLine Del 6678 and while declining to grant such a relief, the Co-ordinate Bench had observed that since the remedy under Section 438 of Cr.P.C. i.e. anticipatory bail was available to the petitioner in case he apprehended any arrest in the ECIR, the question of granting any interim relief of no-coercive steps did not arise. The relevant observations are reproduced hereunder for reference: 46. In the opinion of this court, section 438 Cr. P.C. does not require a formal accusation and the word may preceding the words be arrested and on accusation signifies that both the arrest and accusation are anticipatory. That is to that, firstly, an application under section 438 can only be filed by a person who is yet to be arrested. Secondly, an application under section 438 can be filed irrespective of whether there is a fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 37. Thus, in such circumstances, there are no grounds for directing the respondent to not take any coercive steps against the petitioner herein. CONCLUSION 38. In view of the aforesaid facts and circumstances and the reasons recorded in preceding paragraphs, this Court finds no ground to either quash the impugned summons or the ECIR registered by the respondent. 39. However, before parting with the case, this Court notes that vide order dated 05.09.2023, the Predecessor of this Court had inter alia directed that considering the age of petitioner and his medical status, the respondent may summon the petitioner at its Kolkata office by giving at least 24 hours' notice. This direction was passed in view of a similar relief given by the Hon'ble Apex Court in case of Abhishek Banerjee Anr. v. Directorate of Enforcement SLP Crl. No.2806-2807/2022. 40. This Court, however, is not deciding any question of law as to whether a man aged above 65 years can be summoned by the Directorate of Enforcement under Section 50 of PMLA at any place and whether the same will be in contravention of Section 160 of Cr.P.C., since the controversy involving applicability ..... X X X X Extracts X X X X X X X X Extracts X X X X
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