Sukanta Chakraborty vs Union Of India & Ors
2023 Latest Caselaw 5683 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. 20158 of 2023

                          Sukanta Chakraborty
                                   Vs.
                          Union of India & Ors.

For the petitioner          Mr. Bikash Ranjan Bhattacharyya
                            Mr. Y.J. Dastoor
                            Mr. Mrityunjoy Chatterjee
                            Mr. Subhankar Nag
                            Mr. Jaydeep Biswas
                            Mr. Jasojeet Mukherjee
                            Mr. S.Das


For the ED                  Mr. Arijit Chakrabarti
                            Mr. Deepak Sharma

For the Union of India       Mr. Dhiraj Trivedi, Ld. DSGI
                             Mr. Arunava Ganguly


Lastly heard on             22.08.2023.

Judgment on                 29.08.2023.



Jay Sengupta, J.

This is an application under Article 226 of the Constitution of

India praying for quashing of the impugned summons dated

11.08.2023 being no. PMLA/Summon/KLZO/2023/1631 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. At the relevant point, the petitioner was

associated with the RP group of Companies. He joined the present

company only in 2017 while the subject matter of investigation is prior

to 2015. Earlier, he used to work in one ESS DEE Computers.

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. 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. Earlier there was a

summons sent in connection with another case. The petitioner merely

replied that the company will send the documents. Therefore, there

was an effective non-compliance of the summons. There is an

allegation of fraud by the RP group of Companies to the tune of Rs.

700 crores. There is a statement of an accused mentioning that the

petitioner had been working in the group from much before. 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.

In reply, it is submitted on the petitioner that the earlier

summons was issued in another case. Moreover, statement of an

accused is hardly of any value after submission of charge sheet.

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 called into 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 was not connected to the company at that

point, 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 10 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 elaborate

reasons at every stage.

Besides, the question of using a statement of a co-accused does

not arise as the petitioner has not yet been made an accused, far less

on the basis of any such statement.

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 or may be issued by the said authorities.

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.)

Later

Learned counsel for the petitioner prayed for a stay of the

order.

The prayer is considered and is rejected.

(Jay Sengupta, J.)