Maneesh. E.P vs Directorate Of Enforcement
2021 Latest Caselaw 266 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                         PRESENT

            THE HONOURABLE MR.JUSTICE V.G.ARUN

 WEDNESDAY, THE 06TH DAY OF JANUARY 2021 / 16TH POUSHA,
                          1942

                WP(C).No.24890 OF 2020(I)


PETITIONER/S:

     1     MANEESH. E.P
           AGED 40 YEARS
           S/O. V.V.RAJAGOPALAN, SWAPNAM, CHELORA,
           KANNUR, PIN 670 006.

     2     ANIL KUMAR P.
           AGED 45 YEARS
           S/O. RAMACHANDRAN, MM HOUSE, PERIYAD, MORAZHA,
           KANNUR 670 331.

     3     VILASINI E.P.
           AGED 65 YEARS
           W/O. V.V.RAJAGOPALAN,
           SWAPNA, CHELORA, KANNUR, PIN-670 006.

           BY ADVS.
           SRI.SHAIJAN C.GEORGE
           SMT.ANJU TREESA GEORGE

RESPONDENT/S:

     1     DIRECTORATE OF ENFORCEMENT
           6TH FLOOR, LOK NAYAK BHAVAN,
           KHAN MARKET, NEW DELHI-110 003,
           REPRESENTED BY ITS DIRECTOR.

     2     JOINT DIRECTOR
           DIRECTORATE OF ENFORCEMENT, KOCHI ZONAL
           OFFICE, CANOOS BUILDING,
           MULLASERY CANAL ROAD WEST,
           ERNAKULAM, KOCHI-682 018.

     3     DEPUTY DIRECTOR
           DIRECTORATE OF ENFORCEMENT, KOZHIKODE, SUB
           ZONAL OFFICE, CALICUT-673 003.
 W.P.(C) No. 24890 of 2020

                               -2-


       4       ASSISTANT DIRECTOR (PMLA)
               ENFORCEMENT DIRECTORATE, GOVERNMENT OF INDIA,
               SUB ZONAL OFFICE, CALICUT-670 003.

               R1-4 BY ADV. MR.T.A.UNNIKRISHNAN, CGC
               R1-4 BY ADV. SRI.P.VIJAYAKUMAR

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 21-12-2020, THE COURT ON 06-01-2021 DELIVERED THE
FOLLOWING:
 W.P.(C) No. 24890 of 2020

                                   -3-



                               JUDGMENT

Dated this the 6th day of January, 2021

This writ petition petition was filed on the

petitioners being issued with summons under

Section 50 of the Prevention of Money Laundering

Act, 2002, requiring them to appear before the

fourth respondent, in connection with the

investigation of F.No.ECIR/KZSZO/05/2020/536. The

prayers in the writ petition is (i) to direct the

respondents to abstain from harassing,

threatening or coercing the petitioners during

questioning, (ii) to permit the presence of a

legal practitioner, (iii) to limit the

questioning time between 9.30 a.m and 4.30 p.m

and (iv) to direct the respondents to provide

copies of the statements taken from them. The

reason for approaching this Court is stated to be W.P.(C) No. 24890 of 2020

the petitioners' apprehension due to the manner

in which Ms.Swapna E.P, sister of the first

petitioner and daughter of the second petitioner,

was questioned and her statement recorded under

threat and coercion.

2. The fourth respondent has filed counter

affidavit refuting the allegation that Swapna E.P

was harassed during questioning and coerced into

giving statement against her will. It is stated

that the apprehensions of the petitioners are

misplaced and the allegation, misconceived.

That, the presence of legal practitioners cannot

be permitted during questioning. It is contended

that a writ petition under Article 226 against

the summons issued under Section 50 of the Act,

cannot be entertained.

       3.    In       their        reply          affidavit,         the

petitioners         have     stated       that    pending    the    writ
 W.P.(C) No. 24890 of 2020




petition,         they       appeared            before   the        fourth

respondent.         But, contrary to the assurance given

before this Court, the fourth respondent and his

colleagues threatened the petitioners during

questioning and had forced them to give

statements against their will. This allegation

was stoutly refuted in the additional counter

affidavit filed by the fourth respondent.

Thereupon, the petitioners sought to amend the

writ petition, incorporating an additional prayer

that, guidelines should be laid down regarding

the procedure to be followed when petitioners or

similarly placed persons summoned under Section

50 of the Act, appear before the investigating

officers.

4. Heard Sri. Shaijan C. George, learned

Counsel for the petitioners and Sri.

T.A.Unnikrishnan, learned Special Prosecutor for W.P.(C) No. 24890 of 2020

the Enforcement Directorate.

5. The question regarding maintainability

of writ petition against a summons under Section

50 and the entitlement to have the presence of a

legal practitioner during questioning was

considered and negated by this Court in W.P(C)

No. 28049 of 2020. Therein, reliance was placed

on the judgments of the Apex Court in Kirit

Shrimankar v. Union of India and Others [order

dated 20.11.2014 in WP(Crl.) No.110 of 2013] and

Union of India and Another v. Kunisetty

Satyanarayana [(2006) 12 SCC 28]. In Kirit

Shrimankar, the petitioner had approached the

Apex Court after the Customs officials conducted

a search in the residential premises of his

former wife. The petitioner alleged that he was

threatened with arrest and incarceration if he

did not submit to the dictates of the Customs W.P.(C) No. 24890 of 2020

Officials. The Apex Court observed that it was

highly premature for the petitioner to seek

remedy under Article 32 of the Constitution of

India based on such flimsy averments, which

cannot form the basis for a prima facie

apprehension. Thereupon, the petitioner withdrew

the writ petition. In Kunisetty Satyanarayana,

the appellant had approached the court on being

served with a show cause notice by his employer

as to the genuineness of his caste certificate.

After adverting to precedents, which laid down

the proposition that ordinarily no writ would lie

against a charge sheet or show cause notice, the

Apex Court held as follows:

"14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued W.P.(C) No. 24890 of 2020

by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance."

6. The decision of the High Court of Delhi

in Virbhadra Singh and Another v. Directorate of

Enforcement and Another [2017 SCC Online Del

8930], is to the effect that, no person is

entitled in law to evade the command of the

summons issued under Section 50 of the Act on the

ground of a possibility of such person being

prosecuted in future.

7. In Poolpandi v. Superintendent, Central

Excise [(1992) 3 SCC 259] the Honourable Supreme

Court had occasion to deal with the entitlement W.P.(C) No. 24890 of 2020

of a person summoned under the Customs Act to

have the presence of a companion during

questioning. The relevant portion of the judgment

is extracted hereunder:

"11. We do not find any force in the arguments of Mr Salve and Mr Lalit that if a person is called away from his own house and questioned in the atmosphere of the Customs office without the assistance of his lawyer or his friends his constitutional right under Article 21 is violated. The argument proceeds thus : if the person who is used to certain comforts and convenience is asked to come by himself to the Department for answering questions it amounts to mental torture. We are unable to agree. It is true that large majority of persons connected with illegal trade and evasion of taxes and duties are in a position to afford luxuries on lavish scale of which an honest ordinary citizen of this country cannot dream of and they are surrounded by persons similarly involved either directly or indirectly in such pursuits. But that cannot be a ground for holding that he has a constitutional right to claim similar luxuries and company of his choice. Mr Salve was fair enough not to pursue his argument with reference to the comfort part, but continued to maintain that the appellant is entitled to the company of his choice during the questioning. The purpose of the enquiry under the Customs Act and the other similar W.P.(C) No. 24890 of 2020

statutes will be completely frustrated if the whims of the persons in possession of useful information for the departments are allowed to prevail. For achieving the object of such an enquiry if the appropriate authorities be of the view that such persons should be dissociated from the atmosphere and the company of persons who provide encouragement to them in adopting a non-cooperative attitude to the machineries of law, there cannot be any legitimate objection in depriving them of such company. The relevant provisions of the Constitution in this regard have to be construed in the spirit they were made and the benefits thereunder should not be "expanded" to favour exploiters engaged in tax evasion at the cost of public exchequer. Applying the 'just, fair and reasonable test' we hold that there is no merit in the stand of appellant before us."

8. Another relevant decision is,

Commissioner of Customs, Calcutta and Others v.

M.M.Exports and Another [(2010) 15 SCC 647],

wherein the Apex Court cautioned the High Courts

against interference at the summons stage. In

Dukhishyam Benupani v. Assistant Director,

Enforcement Directorate v. Arun Kumar Bajoria

[(1998)1 SCC 52], interference by the High Court W.P.(C) No. 24890 of 2020

into the interrogation of a person summoned under

Section 40 of the FERA, by fixing the time and

venue for interrogation, was frowned upon by the

Honourable Supreme Court, observing that it is

not the function of the courts to monitor

investigation processes so long as the

investigation do not transgress any provision of

law and that, the decision regarding the venue,

the timings, the questions and the manner of

putting such questions to persons involved in

such offences, are best left to the discretion of

the investigating agency.

9. Hence, the legal position is that a

person issued with summons under Section 50(2) of

the Act is bound to appear in person or through

authorised agents, as the case may be and to

state the truth upon any subject respecting which

he is examined and that, no cause of action W.P.(C) No. 24890 of 2020

arises merely for reason of a person being thus

summoned. As held by the Apex Court in Dukhishyam

Benupani, it is not for this Court to monitor the

investigation and to decide the venue, the

timings, the questions and the manner of

questioning.

For the foregoing reasons, the writ petition

is dismissed.

Sd/-

V.G.ARUN JUDGE

Scl/06.01.2021 W.P.(C) No. 24890 of 2020

APPENDIX

PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE SUMMONS DATED 2.11.2020 ADDRESSED TO THE IST PETITIONER.

EXHIBIT P2 TRUE COPY OF THE SUMMONS DATED 2.11.2020 ADDRESSED TO THE 2ND PETITIONER.

EXHIBIT P3 TRUE COPY OF THE SUMMONS DATED 2.11.2020 ADDRESSED TO THE 3RD PETITIONER.

EXHIBIT P4 TRUE COPY OF THE SUMMONS DATED 13.10.2020.

EXHIBIT P5 A TRUE COPY OF THE RETRACTION STATEMENT DATED 11.11.2020.

EXHIBIT P6 A TRUE COPY OF THE JUDGMENT IN WPC.NO.4622/2020 DATED 18/02/2020.

EXHIBIT P7 A TRUE COPY OF THE JUDGMENT IN WPC.NO.13569/2020 DATED 07/07/2020.

EXHIBIT P8 A TRUE COPY OF THE CERTIFICATE ISSUED BY THE MEDICAL PRACTITIONER ATTENDING MY FATHER DATED 19/11/2020.