Chattisgarh High Court
Mishri Lal Pandey vs Enforcement Directorate (Ed) on 23 February, 2022
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HIGH COURT OF CHHATTISGARH, BILASPUR
WPCR No. 180 of 2021
Mishrilal Pandey And Others
---- Petitioners
Versus
• Enforcement Directorate (ED) Government of India and Others
---- Respondents
• WPCR No. 478 of 2021
Mishrilal Pandey And Others
---- Petitioners
• Versus
• Enforcement Directorate (ED) Government of India and Others
---- Respondents
___________________________________________________
Post for pronouncement of the order on _23.02.2022
__Sd/-____
JUDGE
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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order reserved on : 03.12.2021
Order delivered on : 23 .02.2022
WPCR No. 180 of 2021
1. Mishri Lal Pandey S/o Late Durga Prasad Pandey Aged About
65 Years Retired Additional Director, Directorate Social Welfare,
R/o E4, Sector 2, Agroha Society, In Front Of Hr Tower, Raipura
Chowk Raipur Chhattisgarh.,
2. Smt. Amrita Pandey W/o Shri M.L. Pandey Aged About 59
Years R/o E4, Sector 2, Agroha Society, In Front Of Hr Tower,
Raipura Chowk, Raipur Chhattisgarh.
3. Akash Pandey S/o Shri M.L. Pandey Aged About 35 Years R/o
E4, Sector 2, Agroha Society, In Front Of Hr Tower, Raipura
Chowk, Raipur Chhattisgarh.
---- Petitioners
Versus
1. Enforcement Directorate (E D) Government Of India, Through
Its Deputy Director , Raipur Sub Zonal Office, 2nd Floor, A-1
Block , Pujari Chambers, New Dhamtari Road, Pachpedinaka
Raipur Chhattisgarh.
2. Debidatta Sarangi Assistant Director (Pmla) , Raipur Sub Zonal
Office, 2nd Floor, A-1 Block , Pujari Chambers New Dhamtari
Road, Pachpedinaka Raipur Chhattisgarh.
3. Assistant Director (Pmla) Raipur Sub-Zonal Office, 2nd Floor, A-
1 Block, Pujari Chambers, New Dhamtari Road, Pachpedinaka,
Raipur (Chhattisgarh)
---- Respondents
WPCR No. 478 of 2021
1. Mishri Lal Pandey S/o Late Durga Prasad Pandey Aged About
65 Years Retired Additional Director, Directorate Social Welfare,
R/o E4, Sector-2, Agroha Society, In Front Of Hr Tower, Raipura
Chowk, Raipur, Chhattisgarh
2. Smt. Amrita Pandey W/o Shri M.L.Pandey Aged About 59 Years
R/o E4, Secor-2, Agroha Society, Infront Of Hr Tower, Raipura
Chowk, Raipur, Chhattisgarh.
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3. Akash Pandey S/o Shri M.L.Pandey Aged About 35 Years R/o
E4, Sector-2, Agroha Society, In Front Of Hr Tower, Raipura
Chowk, Raipur, Chhattisgarh.
---- Petitioners
Versus
1. Enforcement Directorate (ED) Government Of India, Through Its
Deputy Director, Raipur, Sub- Zonal Office, 2nd Floor, A-1,
Block, Pujari Chambers, New Dhamtari Road, Pachpedinaka,
Raipur, Chhattisgarh.
2. Assistant Director (PMLA) Raipur, Sub- Zonal Office, 2nd Floor,
A-1, Block, Pujari Chambers, New Dhamtari Road,
Pachpedinaka, Raipur, Chhattisgarh.
3. Debidatta Sarangi Assistant Director (PMLA), Raipur, Sub-Zonal
Office, 2nd Floor, A-1 Block, Pujari Chambers, New Dhamtari
Road, Pachpedinaka, Raipur, Chhattisgarh.
---- Respondents
For Petitioners : Shri Prafull N.Bharat, Sr. Advocate
assisted by Shri Varun Sharma, Advocate
For Respondents : Dr. Sourabh Pandey and Shri Anil S.Pandey
Advocates along with Shri Vinayak Sharma,
Legal Consultant E.D.
Hon'ble Smt. Justice Rajani Dubey
C A V Order
23.02.2022
The petitioners have filed WPCR No. 180/2021 and vide order
dated 07.06.2021, this court has stated that :
"In view of the matter, instead of proceeding further, two weeks
time is granted to learned counsel for the petitioners to make the
record straight if they are so adviced."
2. In compliance of the said order, the petitioners have filed
amended writ petition WP(CR) 478/2021 and by this order, both the
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petitions are being heard and disposed of as they both arise out of the
issue regarding powers of the authorities pertaining to summon,
production of documents and to give evidence under Section 50 of the
Prevention of Money Laundering Act.
3. The petitioners have filed this petition under Article 226 of the
Constitution of India challenging the summons dated 19.07.2021 under
Section 50 (2) of the Prevention of Money Laundering Act 2002 (in
short the PMLA Act). and non-grant of copy of Enforcement Case
Information Report (in short the ECIR) to the petitioners whereby the
respondents have been registered ECIR
No.ECIR/RPSZO/06/2020/401 against the petitioner No.1.
4. Brief facts of the case are that the petitioners have filed this
petition on the ground that they have been served with the impugned
summons dated 19.07.2021 directing them to appear personally and
produce the documents by the respondent No.2 exercising powers
under Section 50 of the Prevention of Money Laundering Act. The
petitioners are required to produce the documents in the case of the
petitioner No.1 with whom the petitioner No. 2 & 3 have no business or
any monetary relations. The petitioner have made separate
applications before the respondent No.2 for grant of copy of the ECIR
but the same has not been given. In the month of February,
respondent No.2 issued similar summons to the petitioners without
supplying copy and time to file reply. Petitioners preferred a writ
petition before this Court vide W.P.(Cr) No. 180/2021 seeking direction
from this court to the respondents to provide copy of ECIR and
reasonable time to file reply. The aforesaid writ petition was heard at
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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 the accused
is entitled for copy of the FIR before the consonance of fair trial as
prescribed under Section 207 Cr.P.C., when the charge sheet is
submitted before the trial court and cognizance is taken. The
provisions of the Code of Criminal Procedure Code have been made
applicable to the investigation including trial under the PMLA by way of
Sections 65, 44 to 46 of the PMLA. The Apex Court in the case of
Ashok Munnilal Jain Vs. Directorate of Enforcement (2018) 16
SCC 158 has held that the provisions of Criminal Procedure Code are
applicable. The impugned summons dated 19.07.2021 is defective
contrary to the law and authorities and the fundamental rights over the
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petitioner guaranteed under Article 21 of the Constitution of India. The
impugned summons have been issued in contravention of the
undertaking given before this Court in W.P. Cr. No. 180/2021 on
10.03.2021 and 22.03.2021. The impugned summons are defective
and incomplete as it does not provide the petitioner with relevant
information required to file adequate and proper reply. The petitioners
are being forced to give evidence against themselves without
informing them fully against acquisitions, therefore the petitioners pray
for the following reliefs:
10.1. this Hon'ble Court may kindly be pleased to quash
the impugned summons dated 19.07.2021 (Annexure P/1)
being incomplete and illegal.
10.2. This Hon'ble Court may kindly be pleased to direct
respondents to provide a copy of ECIR No. 06/2020 to the
petitioners and grant reasonable time to the petitioners to
reply allowing the petitioner for proper legal
representation to protect themselves from self
incrimination.
10.3. This Hon'ble Court may kindly be pleased to direct
the respondents not to take any coercive action against
the petitioners during the pendency of the case.
6. Reliance has been placed in the natter of Raman Bhogilal
Shah and Another Vs. D.K.Guha and Others, (1973) 1 SCC 696;
Enforcement Directorate Vs. Deepak Mahajan (1994) 3 SCC 440;
Samaj Parivartan Samudaya an Others Vs. State of Karnataka and
Others reported in (2012) 7 SCC 407; Amish Dewangan Vs. Union
of India reported in (2021) 1 SCC 1; Naresh J. Sukhawani Vs.
Union of India reported in 1995 Supp. (4) 663; Ankush Maruti
Shinde Vs. State of Maharastra (2019) 15 SCC 470. Lastly, he
submits that the respondent/Enforcement Directorate can not adopt a
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pick and 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, Social Welfare
Department, Raipur for illegally acquiring disproportionate assets viz.
movable and immovable properties in his name as well as in the
names of his family members by misusing his post. These offenses
are scheduled offenses included in Part A, Paragraph-8 (offenses
under the Prevention of Corruption Act, 1988) of the Prevention of
Money Laundering Act, 2002. Based upon the said First Information
Report, an Enforcement Case Information Report i.e. ECIR No. ECIR/
RPSZO/06/2020 was recorded on 27.02.2020 and investigations
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under the provisions of the PMLA were initiated. The investigation by
the Enforcement Directorate is being done against the offence of
Money Laundering under Section 3 of the PMLA 2002 only. The
petitioner No.1 was fined under the provisions of Foreign Exchange
Management Act (FEMA) vide Adjudication Order No. ADJ/03/RPSZO/
2019/AD/(DSD) dated 13.08.2019 wherein the matter relating to the
show cause notice No.-T4/RPSZO/01/2019/AD(DSD) dated
16.05.2019 was disposed of in which a penalty of Rs. 1,00,000/- was
imposed upon the petitioner No.1. The same is very clear from a bare
reading of Annexure P/2 that the petitioner No.1 was never acquitted
or pardoned but a penalty of Rs. 1,00,000/- was imposed on him.
Recording of the ECIR for the sake of maintaining record of the cases
under the investigation for offences falling under PMLA in the
Organization i.e. Enforcement Directorate which is an internal
document for the sake of maintaining administrative convenience. The
Director, Additional Director, Joint director,Deputy Director or Assistant
Director shall have the 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.
8. A bare reading of the mandatory provisions contained in Section
50 of the PMLA makes it ample clear that the statute empowers the
enforcement directorate to summon any person during investigation to
record his or her statements, give evidence or to produce documents
as sought by the respondent authorities,.
9. The provisions contained in Section 50 (4) states that the
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proceedings under Section 50(2) and (3) shall be deemed to be a
judicial proceeding within the meaning of Section 193 and 228 of the
Indian Penal Code, 1860. Hence the respondents/authorities have
summoned the 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 misleading
baseless and devoid of merits. The investigation in the present case is
being conducted under the provisions of the PMLA hence, the
judgment cited by the petitioners are not applicable and maintainable
in the present case as the facts of the case and law as well as the
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situation is different. Therefore, the petitioners are not entitled for any
relief whatsoever has been brought by them by this petition. Reliance
has been placed in the matter of Special Director and Another Vs.
Mohd. Ghulam Ghouse and Another (2004) 3 SCC 440 ; Chhagan
Chandrakant Bhujbal Vs. Union of India and Others in Criminal
Writ Petition No. 3931of 2016; Menaka Gandhi Vs. Union of India
(1978) 1 SCC 848; Sunil Batra Vs. Delhi Administration (1978 4
SCC 494:1979 SCC (Cri)155); Mrs. Nalini Chidambaram Vs. The
Directorate of Enforcement 2018 SCC Online Madras 5924.
12. Heard counsel for the parties and perused the material available
on record.
13. It is clear from the documents available on record that the
petitioners No.1 Mishri Lal Pandey was posted as Additional Director,
Social Welfare Department, Raipur. The anti Corruption Bureau (ACB)
Raipur conducted search operation in the house of the petitioner on
16.02.2017 and during search some foreign currencies were
recovered from the possession of the petitioner No.1 and he was fined
under the provisions of FEMA 1999 vide adjudication order No.
ADJ/03/RPSZO/2019AD(DSD) dated 13.08.2019 in which a penalty of
Rs. 1,00,000/- was imposed upon the petitioner No.1 and ECIR
bearing No. ECIR/RPSZO/06/2020 was recorded on 27.02.2020 and
investigations under the provisions of the PMLA were initiated.
14. During the investigation, the impugned summons were issued to
the petitioner vide Annexure P/1 wherein it has been mentioned that:
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" tcfd eSa ---------------- /ku'kks/ku fuokj.k vf/kfu;e] 2002 ¼2003 dk
15½ ds izko/kkuksa ds varxZr tkap dj jgk gwaA
Whereas I, _____________ am conducting
investigation under the provisions of the Prevention of
Money Laundering Act, 2002 (15 of 2003) vkSj tcfd] eSaus
-------------- dks mDr tkap ds laca/k esa mifLFkr gksuk vko';d gksuk
ekuk gSA
And whereas, I consider the attendance of Shri Mishrilal
Pandey necessary in connection with the said
investigation.
vr% eSa mDr vf/kfu;e dh /kkjk 50 dh mi/kkjk ¼2½ vkSj
mi&/kkjk ¼3½ ds varxZr fn;s vf/kdkjksa dk iz;ksx djrs gq, iz;qDr
----------------- dks O;fDrxr #i lsvFkok vius izkf/kd`r izfrfuf/k ds
ek/;e ls uhps n'kkZ;h x;h vuqlwph ds vuqlkj dkxtkrksa lfgr
fnukad ----------- dks -------------- cts esjsdk;kZy; esa mifLFkr gksuk
vko';d gS %&
Now therefore in exercise of the powers
conferred upon me under sub-section (2) and sub-
section (3) of Section 50 of the said Act, I require the
said _______________ to appear before me in person
at my office on ___________ at ___________- hrs.
along with the documents as per Schedule below.
[email protected]
¼layXud *d* ds vuqlkj½ (As per annexure 'A' enclosed)
o"kZ nks gtkj --------------- ds ekg --------------- dh ----------------rkjh[k
dks esjs gLrk{kj vkSj eqgj ls tkjh fd;k x;k gSA Given under
my hand and seal, this ___________ day of _______
two thousand ________.
[email protected]
--------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
uksV @ Note:-
1- /ku'kks/ku fuokj.k vf/kfu;e] 2002 ¼2003 dk 15½ dh /kkjk 50 dh
mi&/kkjk ¼2½ vkSj mi&/kkjk ¼3½ ds varxZr izR;sd dk;Zokgh dks
Hkkjrh; n.M lafgrk] 1860 ¼1860 ds 45½ dh /kkjk 193 vkSj 228 ds
vFkZ ds Hkhrj ,d U;kf;d dk;Zokgh gs #i esa ekuk tk;sxkA
Every proceeding under Sub-Section (2) and Sub-
Section (3) of Section 50 of the Prevention of Money
Laundering Act 2002, shall be deemed to be a judicial
proceeding within the meaning of section 193 and
section 228 of the Indian Penal Code 1860 (45of 1860).
2- dqN le; ds fy;s ykxw fdlh vU; dkuwu ds izko/kkuksa ij
izfrdwy izHkko Mkys fcuk] ;fn vki vuqlwfp esa mYysf[kr lk{;
izLrqr djus esa vlQy gksrs gSa rks vki ij /ku'kks/ku fuokj.k
vf/kfu;e] 2002 ¼2003 dk 15½ ds varxZr nkafMd izfdz;k pyk;h
tk;sxhA
Without prejudice to the provision of any other law for
the time being in force, if you fail to give e4vidence as
mentioned in the schedule, you shall be liable to penal
proceedings under the Prevention of Money Laundering
At, 2002 (15 of 2003).
15. Counsel for the respondents submit that as per the provisions
of the Code of Criminal Procedure, copy of First Information Report
was provided to the accused and after receiving the summons under
Section 50 of the PMLA by the accused, for the purpose of
constitutional protection guaranteed under Article 20(3) of the
Constitution of India, the respondents/Enforcement Directorate has
stated in reply to the application that the petitioners have no where
pleaded that they are not accused. During the course of hearing also
the submission has been vehemently made that the petitioners are not
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 Exchange Act, the position is slightly different.
He further says that in Romesh Mehta's case (1) no
enquiry had been made while in the present case an
enquiry under S.19F had been made and the ?Deputy
Director had come to a definite conclusion that the
petitioner was guilty of an offence. He further says that
the next step would be an enquiry under S. 23 of the
Exchange Act which might result in a penalty under S.
23(1)(a) or the case being sent to a Court for trial. He
says that as far as the enquiry under Section 23 1)(a) is
concerned, it is an enquiry in respect of art offence and no
further charge or complaint is necessary before
undertaking the enquiry. He contends that the protection
under Article 20(3) extends not only to criminal trials, but
also to trials of all offences under the Exchange Act
because for the same offence one person may be
convicted and penalty levied under Section 23(1)(a) or
convicted by a Court and sentenced to imprisonment.
18. The aspects have not been considered by this
Court in any case which has been brought to our notice,
but we do not think that it is necessary to dispose of these
contentions because we are of the opinion that the
second point raised by Mr. A.K.Sen must prevail.
24. Although we held that the petitioner is a person
accused of an offence within the meaning of Article 20(3),
the only protection that Article 20(3) gives to him is that he
cannot be compelled to be a witness against himself. But
this does not mean that he need not give information
regarding matters which do not tend to incriminate him.
This Court observed in State of Bombay V. Kathi Kalu
Oghad (1) as follows :
" In order that a testimony by an accused person
may be said to have been self-incriminatory the
compulsion of which comes within the, prohibition of the
constitutional provision, it must be of such a character that
90by itself should have the tendency of incriminating the
accused, if not also of actually doing so. In other words it
should be a statement which makes the case against the
accused person at least probable,considered by itself.
In the decision of the Enforcement Directorate Vs. Deepak
Mahajan (1994) 3 SCC 440 it has been in para 90 that :
90. In this connection, reference may be made to a decision
in Ramanlal Bhogilal Shah Vs,. D.K.Guha which has
distinguished Ramesh Chandra Mehta and held on the facts
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 its
manual has adopted a procedure of conducting limited
pre-investigation inquiry as well. In both the cases, the
registration of the FIR is essential. A police investigation
may start with the registration of the FIR while in other
cases (CBI etc.) an enquiry may lead to the registration
of an FIR and thereafter regular investigation may
begin in accordance with the provisions of the Cr.P.C.
113. Acronym FIR, or the First Information Report, is
neither defined in the Criminal Procedure Code nor is
used therein, albeit it refers to the information relating to
the commission of a cognizable offence. This
information, if given orally to an officer in charge of the
police station, is mandated to be reduced in writing.
Information to be recorded in writing need not be
necessarily by an eyewitness, and hence, cannot be
rejected merely because it is hearsay. Section 154 does
not mandate nor is this requirement manifest from other
provisions of the Criminal Procedure Code. Further, FIR
is not meant to be a detailed document containing
chronicle of all intricate and minute details. In Dharma
Rama Bhagare Vs. State of Maharastra (1973) 1
SCC 537: 1973 SCC (Crl.) 21) it was held that an FIR is
not even considered to be a substantive piece of
evidence and can be only used to corroborate or
contradict the informant's evidence in the Court.
115. The true test for a valid FIR, as laid down in
Lalita Kumari (Lalita Kumari Vs. State of UP (2014) 2
SCC 1:(2014)1 SCC (Cri.) 524) is only whether the
information furnished provides reason to suspect the
commission of an offence which the police officer
concerned is empowered under Section 156 (1) of the
Criminal Procedure Code to investigate. The questions
as to whether the report is true, whether it discloses full
details regarding the manner of occurrence; whether
the accused is named or whether there is sufficient
evidence to support the allegation are all matters which
are alien to consideration of the question whether the
report discloses commission of a cognizable offence.
As per sub-sections (1) (b) and (2) of Section 157 of the
Criminal Procedure Code, a police officer may foreclose
an FIR before investigation if it appears to him that
there is no sufficient ground to investigate. At the initial
stage of the registration, the law mandates that the
officer can start investigation when he has reason to
suspect 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;
(b) enforcing the attendance of any person including
any officer of a reporting entity and examining him on
oath;
(c) compelling the production of records;
(d) receiving evidence on affidavits;
(e) issuing 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 top
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 authorized 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.
(4) Every proceeding under sub-sections (2) an (3)
shall be deemed to be a judicial proceeding within the
meaning of Section1 93 and Section 228 of the Indian
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 (20 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.
19. Thus, from bare reading of the above section it can be said that
the respondent/authorities have ample power to summon any person
during the investigation and to record their statement, give evidence or
produce documents as sought by the respondent/authorities. Section
50(4) of the PMLA stated that every proceeding under sub-sections (2)
an (3) shall be deemed to be a judicial proceeding within the meaning
of Section1 93 and Section 228 of the Indian Penal Code, 1860 (45 of
1860).
20. Section 50(2) gives sufficient power to the authority to summon
any person whose attendance is considered necessary. In Virbhadhra
Singh and Others Vs. Enforcement Directorate, the High Court of
Delhi after long discussion, has held that:
143. It is clear from the above discussion that the
Prevention of Money Laundering 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-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
expressed.
146. There is nothing shown to the Court from which it
could be inferred that the issuance of summons by the
respondents to the petitioners for investigation into the
ECIR , in exercise of statutory powers, has caused, or
has the effect of causing, any prejudice to any of them."
21. Hon'ble Apex Court has observed in Y.S. Jagan Mohan Reddy
Vs. CBI (2013) 7 SCC 439: (2013) 3 SCC (Cri) 552, that economic
offences having deep rooted conspiracies and involving huge loss of
public public funds need to be viewed seriously and considered as
grave offenes affecting the economy of the country as a whole and
thereby posing serious threat to the financial health of the country.
22. 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.
23. In the case of Chhagan Chandrakant Bhujbal Vs. Union of
India 2016 Online Bombay 9938, it has been held that :
200. In view thereof, having regard to the gravity of the
offence, the very object of the PML Act would be
frustrated, if the petitioner projects some loophole or
infirmity in the implementation of the provisions of the
PML Act. In order to get his release from detention,
that too by invoking such extra-ordinary remedy,
circumventing the very specific provisions of bail, as
laid down under Section 45 of the PML Act, In order to
get his release from detention, that too by invoking
such extra-ordinary remedy, circumventing the very
specific provisions of bail, as laid down under Section
45 of the PML Act, or any Statute are to be
interpreted in order to advance the substantial cause
of justice and not to curtail the same in any way or to
create an hindrance n achieving the said cause. If the
provisions of PML Act are to be interpreted, therefore,
in the proper perspective, then, we do not find that
there was any such lacunae, infirmity or, much less,
illegality in the arrest and detention of the Petitioner,
for this Court to invoke its extra-ordinary jurisdiction for
release of the Petitioner.
It has been further held that :
189.As regards the petitioner's grievance that the
grounds of arrest were not communicated to him in
writing, this grievance also cannot be accepted to hold
the breach of any statutory safeguard, 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 Magistrate with the police report
under sub-section (5) of the Section 173:
Provided that the Magistrate may, after perusing
any such part of a statement as is referred to in clause
(iii) and considering the reasons given by the police
officer for the request, direct that a copy of that part of
the statement or of such portion thereof as the
Magistrate thinks proper shall be furnished to the
accused:
Provided further that if the Magistrate is satisfied that
any document referred to in clause (v) is voluminous,
he shall instead of furnishing the accused with a copy
thereof, direct that he will only be allowed to inspect it
either personally or through pleader in court.
208. Supply of copies of statements and documents to
accused in other cases triable by Court of Session-
Where, in a case instituted otherwise than on a police
report, it appears to the Magistrate issuing process
under Section 204 that the offence is triable exclusively
by the Court of Session, the Magistrate shall without
delay furnish to the accused, free of cost, a copy of
each of the following:-
(i) the statements recorded under Section 200 or
Section 202, of all persons examined by the
Magistrate;
(ii) the statements and confessions, if any, recorded
under Section 161 or Section 164;
(iii) any documents produced before the Magistrate on
which the prosecution proposes to rely:
Provided that if the Magistrate is satisfied that any
such document is voluminous, he shall instead of
furnishing the accused with a copy thereof, direct that
he will only be allowed to inspect it either personally or
through pleader in Court.
25. Hence, from the above Sections it can be stated that when the
accused appears before the Court or is brought before the Court, the
Magistrate shall without delay furnish copy of the police report and
other documents to the accused free of cost but it is no where
provided under the PMLA that the copy of ECIR or other documents
shall be supplied to the concerned person. The authorities under the
PMLA have been vested with the powers of jurisdiction inter alia for
gathering all evidence if required by search and seizure, summoning
and enforcing the attendance of any person. Economic offence not
only effect the individuals alone but damage the economy as well.
Corruption is a termite eating up the new India. It is high time we as a
society take charge of it 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 found devoid of merits stands dismissed with all the pending
applications.
Sd/-
(Rajani Dubey)
Judge
suguna
