Pritimoy Chakraborty vs Union Of India & Ors
2023 Latest Caselaw 5566 Cal

Form No. J(2)

             IN THE HIGH COURT AT CALCUTTA
                     Constitutional Writ Jurisdiction
                             Appellate Side

Present:
The Hon'ble Justice Jay Sengupta


                         W.P.A. 20644of 2023

                          Pritimoy Chakraborty
                                   Vs.
                          Union of India & Ors.

For the petitioner          Mr. Bikash Ranjan Bhattacharyya, Sr.Adv
                            Mr. Subhankar Nag
                            Ms. Sayanti Sengupta
                            Mr. Jamiruddin Khan


For the ED                  Mr. Arijit Chakrabarti
                            Mr. Deepak Sharma

For the Union of India       Mr. Billwadal Bhattacharyya, Ld. DSGI
                             Mr. Tirtha Pati Acharyya


Heard on             : 25.08.2023.

Judgment on          : 25.08.2023.



Jay Sengupta, J.

This is an application under Article 226 of the Constitution of

India praying for quashing of the impugned summons dated

17.08.2023 being no. PMLA/Summon/KLZO/2023/663 in respect of

F. No. ECIR/KLZO/01/2018/1669 and a direction that no coercive

measures should be taken against the petitioner in respect of the said

summon.

Learned senior counsel representing the petitioner submits as

follows. The petitioner is not an accused in this case. Only a summon

has been issued to him. The petitioner suffers from diverse ailments.

The company in question in which he was a director namely, Zenith

Finesse India Private Limited is now sold to another Company as per

the IBC. Therefore, the petitioner is now not in a position to produce

the documents sought. It is another thing that earlier the petitioner

was in a position and did submit a few documents in this regard.

Reliance is placed on the decision in V. Senthil Balaji's case, 2023

SCC online SC 934 and it is submitted that the power to arrest in

PMLA case is very limited and is to be exercised cautiously and as per

law. However, that stage has not come yet. But the petitioner's

apprehension and the consequent prayer for 'no coercive action'

emanates from the fact that two other witnesses called by such

summons have been arrested. Most of the records sought are already

with the Enforcement Directorate. Some documents that are not there

have been disclosed in the writ petition. Section 50 (3) of the PMLA Act

provides that a witness can be asked to attend in person or through

an authorized agent. In the instant case, there is no reason why the

petitioner should be asked to come in person. Here, it does not appear

that the summon was sent for any other purpose than for production

of documents.

Learned counsel appearing on behalf of the Enforcement

Directorate submits as follows. As would be evident from a plain

reading of the summons sent, it was clearly indicated that the

petitioner should appear in person. It was further categorically

mentioned that he was not only to produce documents, but also to

tender evidence, which is permissible in law. It is true that earlier a

summon was issued to Mr. D. P. Jadav., a Director of Zenith Finesse

India Private Limited and the petitioner provided some documents on

behalf of such person. The present summon is not directed against

Zenith Finesse India Private Limited. The judgment in V. Senthil

Balaji's case (supra) vindicates the powers of the Enforcement

Directorate including the power to arrest. However, that stage has not

come yet as the petitioner has not been examined. Reliance is also

placed on the decision in the Commissioner of Customs, Calcutta -vs-

M. M. Exports reported at 2007 (212) ELT (165) SC and it is submitted

that at the stage of issuance of summons Courts should normally not

interfere with the proceeding.

I have heard the submissions of the learned counsels for the

parties and have perused the writ petition.

First, the power of the Enforcement Directorate to arrest an

accused cannot be in question in view of the decisions in V. Senthil

Balaji's Case (supra). However, that is not directly an issue here.

It appears that a notice has been given to the petitioner to

appear and produce certain documents and tender evidence in terms

of Section 50 of the PMLA Act.

If the petitioner is not in a position to produce certain

documents because he is not in charge of a company anymore, this

can fairly be contended before the authorities. However, there is a

clear indication that documents have been sought as regards several

other companies. Item 9 indicates that another purpose for such

attendance is to tender evidence.

In exercise powers under Section 50 of the PMLA Act, it was

specifically directed that the petitioner should attend in person.

It will be too much to ask the authorities to record reasons at

every stage even while issuing summons in terms of Section 50 of the

PMLA Act.

Therefore, I do not find any reason as to why the petitioner

could not co-operate with the proceeding.

The petitioner also could not show any patent illegality in the

summoning of the petitioner by the Enforcement Directorate.

No case is made out either to seek the exceptional relief of 'not

to take coercive action'. In fact, such relief could be granted only in

very exceptional cases. On this, reliance may be placed on Neeharika

Infrastructure (P) Ltd., 2021 SCC Online 315.

Therefore, it is necessary that the petitioner co-operates with

the Enforcement Directorate and appropriately responds to the

summons that was issued by the said authorities.

As it was alleged that noticees are usually made to await for

long hours at the office of the Enforcement Directorate, it is clarified

that once the petitioner reaches the Enforcement Directorate, the

authorities that shall take prompt steps to examine him and/or record

any evidence.

Considering the purported health condition of the petitioner, let

the interrogation, if any, on a particular day not exceed 4 hours.

Since the decision is being made on the writ petition of the

petitioner at about 11:45 AM today and the direction was for the

petitioner to attend the office of the Enforcement Directorate at 10:30

AM, let the petitioner attend the office of the Enforcement Directorate

for such purpose today at 2 PM.

I do not find any merit in this writ petition.

Accordingly, the writ petition is dismissed.

However, there shall be no order as to costs.

Since affidavits were not called for, allegations are deemed not

to have been admitted.

Urgent Photostat certified copy of this order be supplied to the

parties, if applied for, as early as possible.

.

(Jay Sengupta, J.)

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