Madras High Court
Ramesh Dugar vs The Deputy Director on 3 November, 2022
W.P.No.28848 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 03.11.2022
CORAM
THE HONOURABLE Mr. JUSTICE P.N.PRAKASH
AND
THE HONOURABLE Mr. JUSTICE RMT.TEEKAA RAMAN
W.P.No.28848 of 2022
AND
C.M.P.No.28142 of 2022
Ramesh Dugar .. Petitioner
Vs.
1.The Deputy Director
Enforcement Directorate
Head Quarters Investigation Unit
Room No.401, B-Wing
Parvatan Bhawan
Dr.A.P.J.Abdul Kalam Road
New Delhi 110 001
2.The Hon'ble Chairperson
Adjudicating Authority (PMLA)
Room No.26, 4th Floor
Jeevan Deep Building
Parliament Street, New Delhi 110 001 .. Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying to issue a writ of certiorarified mandamus, calling upon for records
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W.P.No.28848 of 2022
of the 2nd respondent in proceedings O.A.No.721 of 2022 dated 15.09.2022
and quash the same and direct the 1st respondent to return the illegally
seized documents and mobile iPhone 11 Pro Max from the petitioner's
residential premises situated at B-2 Sasi Towers, No.3, Mohan
Kumaramangalam Street, Nungambakkam, Chennai 600 034.
For Petitioner : Mr.G.Vijay Anand
For Respondents : Mr.N.Ramesh
Special Public Prosecutor
(Enforcement Directorate)
ORDER
[Made by P.N.PRAKASH, J.]
The facts that gave rise to the issuance of the impugned proceedings
has been set out in the proceedings dated 14.09.2022 of the Adjudicating
Authority under Section 8(1) of the Prevention of Money-Launderiing Act,
2002 (in short “the PML Act”) :
“1.The Deputy Director, Delhi has filed an Application,
received by this Authority on 01.09.2022 under Section 17(4) of
PMLA in the matter of Mr.Ramesh Dugar for retention of digital
devices, documents/records seized during searches conducted on
05.08.2022.
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W.P.No.28848 of 2022
2.Central Bureau of Investigation (AC-II), New Delhi
registered an FIR No.RC2202022E006 dated 14.05.2022 under
Section 120(B) of IPC and Section 8 & 9 of PC Act, 1988 against the
following accused persons for Criminal Conspiracy, Cheating,
Criminal Misconduct by public servant & abuse of official position
by public servant :
(a) Sh.S.Bhaskararaman
(b) Sh.Karti P.Chidambaram
(c) Sh.Vikas Makharia
(d) M/s Talwandi Sabo Power Limited
(e) M/s Bell Tools Limited
(f) Unknown public servant(s) & private person(s)
3.It has been placed on record that M/s Talwandi Sabo Power
Limited was in the process of establishing a 1980 MW thermal
power plant at Mansa District of Punjab and the plant was being
installed by Chinese Company, namely M/s Shangdong Electric
Power Construction Corp (SEPCO) as an EPC contractor. During
2011, M/s TSPL was in need of more Project VISAs over and above
the maximum permissible number of project VISAs for Chinese
experts from SEPCO as the company was running behind its
schedule in the installation of Power Plant translating into huge
financial repercussions in term of penalty, interest on bank loans etc.
4.It has been further brought on record that Sh.Vikas
Makharia, Associate Vice President of M/s Talwandi Sabo Power
Limited (TSPL), approached Sh.Karti P. Chidambaram (son of
P.Chidambaram, the then Home Minister, Govt. of India) through his
associate Sh.S.Bhaskararaman in the year 2011 for getting approval
on request letter dated 30.07.2011 submitted by TSPL in the Ministry
of Home Affairs, Govt. of India (MHA) seeking permission to reuse
VISAs issued for their Project at Mansa, Punjab. During the
discussions, an illegal gratification of Rs.50 lakhs was demanded.
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W.P.No.28848 of 2022
Thereafter Sh.Vikas Makharia submitted the above said request letter
dated 30.07.2011 to MHA (Foreigners Division) seeking permission
to re-use the Project VISAs already issued to Company.
5.Further, Sh.Vikas Makharia assured Sh.Bhaskararaman that
M/s TSPL was ready to pay the said illegal gratification demanded
by him after discussion with concerned officials of the company. On
17.08.2011, Sh.Vikas Makharia on being directed by
Sh.S.Bhaskararaman, sent a copy of the above said letter dated
30.07.2011 to him through email which was forwarded to Sh.Karti P.
Chidambaram. Thereafter, TSPL was granted permission vide letter
dated 30.08.2011 issued by MHA.
6.Further, it has been placed on record that that illegal
gratification of Rs.50 Lakhs was paid by M/s TSPL through M/s Bell
Tools Limited, Mumbai. M/s Bell Tools Limited, in connivance with
the above said Sh.Vikas Makharia and Sh.S.Bhaskararaman, raised
two false invoices of M/s.TSPL for Consultancy Services and for
out-of-pocket expenses incurred for re-use of Project VISAs.
M/s Bell Tools Limited had never been in such business/services.
Payment against the said invoices was made by M/s TSPL to
M/s Bell Tools Limited through cheque and then the said amount
was paid in cash to Sh.S.Bhaskararaman.
7.Further, there has been constant e-mail communication
between Sh.Vikas Makharia, Sh.S.Bhaskararaman and Sh.Karti P.
Chidambaram vide email dated 02.09.2011. Sh.Vikas Makharia
conveyed his thanks and attached permission letter dated 30.08.2011
issued by MHA (Foreigners Division) to Sh.S.Bhaskararaman which
was duly forwarded to Sh.Karti P. Chidambaram. Accordingly, a
criminal case was registered by the Directorate of Enforcement,
Headquarters Office, New Delhi vide ECIR No.ECIR/HIU-I/09/2022
dated 25.05.2022.
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W.P.No.28848 of 2022
8.It has been further brought on record that Mr.Ramesh Dugar
was one of the directors of Dugar Housing Limited and of other
companies of Dugar Group during the year 2011-12 along with
Mr.Padam Dugar and was involved in day-to-day
functioning/decisions of the group. Advantage Strategic Consulting
Private Limited, a company controlled by Karti P.Chidambaram, had
entered into partnership deed with M/s Dugar Properties Private
Limited and formed a partnership firm namely M/s Dugar MME
Properties along with other partners. ASCPL had further entered
into Memorandum of Understanding with Dugar Housing Limited
for development of a real estate project during February, 2011. The
documents recovered from seized digital records during the Aircel
Maxis FEMA search contain details of cash transactions between
ASCPL and Dugar Group during the close proximity of above said
approval and receipt of illegal gratification by
Shri S.Bhaskararaman.
9.It has been revealed that M/s ASCPL had entered into cash
transactions with Dugar Group Companies during the close
proximity of exchange of illegal gratification of Rs.50 lakhs between
TSPL and Bhaskararaman.”
2.From a reading of the above, it is seen that the CBI, New Delhi had
registered an FIR on 14.05.2022 for the offences under Section 120-B IPC
and Sections 8 and 9 of the Prevention of Corruption Act, 1988, against
some individuals and companies, for certain acts of omissions and
commissions by them.
3.The sum and substance of the allegation is that an amount of
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W.P.No.28848 of 2022
Rs.50,00,000/- appears to have been given as bribe by M/s.Talwandi Sabo
Power Limited (M/s.TSPL) to a public servant by name S.Bhaskararaman.
Since the CBI's FIR disclosed the commission of a scheduled offence under
the PML Act, the Enforcement Directorate, New Delhi, registered a case in
ECIR No.ECIR/HIU-I/09/2022 on 25.05.2022 and has taken up
investigation under the PML Act.
4. Pursuant to the above, the Enforcement Directorate conducted
search of the premises of Ramesh Dugar (petitioner) on 05.08.2022 and has
seized certain materials, including records and digital devices. Under
Section 17(4) of the PML Act, the officers of the Enforcement Directorate
cannot retain the seized materials beyond a period of 30 days and therefore,
they are required to file an application to the Adjudicating Authority,
requesting him to permit them to retain the seized materials for the purpose
of investigation. Accordingly, the Enforcement Directorate filed an
application. On receipt of such an application, the Adjudicating Authority is
required to act under Section 8(2) and 8(3) of the PML Act, in that, he is
required to issue summons to the person from whom the materials were
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W.P.No.28848 of 2022
seized, call for his reply and thereafter, pass an order in terms of Section
8(3), either handing over those properties back to the person or permitting
the officers of the Enforcement Directorate to retain the seized materials.
5. If a person is aggrieved by the order of the Adjudicating Authority
under Section 8(3), he could approach the Appellate Tribunal under Section
26 of the PML Act. Even thereafter, an appeal remedy is provided to the
High Court under Section 42 of the PML Act. In this case, admittedly, the
petitioner has also given a reply statement to the show cause notice to the
Adjudicating Authority and the same is under consideration.
6. That apart, we find that the predicate offence has been registered
by the CBI, New Delhi, pursuant to which, the Enforcement Directorate,
New Delhi has registered the present case. In this writ petition, it is urged
by the petitioner that the impugned proceedings suffer from lack of
jurisdiction inasmuch as, under Section 17(1), the Deputy Director can
conduct search and seizure only on the authorization of the Director and not
on his own accord. In support of this contention, the learned counsel placed
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W.P.No.28848 of 2022
strong reliance on paragraph 312 of the judgment of the Supreme Court
inVijay Madanlal Choudhary and others vs. Union of India and others
[2022 SCC OnLine SC 929].
7. When we raised the question of the very maintainability of this writ
petition before the Madras High Court in view of the fact that the impugned
proceedings are pending on the file of the Enforcement Directorate, New
Delhi, Mr.Vijay Anand, learned counsel placed strong reliance on the
following two judgments :
i. Nawal Kishore Sharma Vs. Union of India and Others
(2014)9 SCC 329; and
ii. Rajendran Chingaravelu Vs. R.K.Mishra, Addl.
Commissioner of Income Tax and Others (2010)1 SCC 457.
8. Mr.Vijay Anand contended that the seizure of the items were done
by the Enforcement Directorate from the premises of the petitioner in
Chennai and therefore, the Madras High Court would have the territorial
jurisdiction to entertain this writ petition. Further, the learned counsel took
us through Article 226(2) of the Constitution of India and submitted that
where a part of the cause of action arises, the High Court within whose
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W.P.No.28848 of 2022
jurisdiction the said part had arisen, would have the territorial jurisdiction.
9. We are afraid that in the facts and circumstances of this case,
seizure and recovery of the articles from the premises of the petitioner in
Chennai, cannot confer jurisdiction on this Court because, the investigation
by the CBI as well by the Enforcement Directorate is being held at New
Delhi and the search and seizure is the effect of the investigation and not the
cause of the investigation.
10. At the risk of repetition, Rs.50,00,000/- appears to have been the
bribe amount, which is said to have been generated from the criminal
activity, for which the CBI, New Delhi has registered the FIR as stated
above. Now, the Enforcement Directorate, New Delhi is on the trail of the
sum of Rs.50,00,000/- and preliminary enquiries revealed that when the said
sum of Rs.50,00,000/- was transacted between M/s.TSPL and
Bhaskararaman. certain financial dealings appear to have happened between
ASCPL and Dugar group of companies.
In such view of the matter, we are afraid that this Court does not have
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W.P.No.28848 of 2022
the territorial jurisdiction to entertain this writ petition and therefore,
without going into the merits of the case, this writ petition stands dismissed
with liberty to the petitioner to work out his remedies in the manner known
to law before the appropriate forum. No costs. Connected Miscellaneous
Petition stands closed.
(P.N.P.,J.) (T K R, J.)
03.11.2022
gya (2/2)
To
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W.P.No.28848 of 2022
1.The Deputy Director
Enforcement Directorate
Head Quarters Investigation Unit
Room No.401, B-Wing
Parvatan Bhawan
Dr.A.P.J.Abdul Kalam Road
New Delhi 110 001
2.The Public Prosecutor
High Court, Madras
P.N.PRAKASH, J.
AND
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W.P.No.28848 of 2022
RMT.TEEKAA RAMAN, J.
gya
W.P.No.28848 of 2022
03.11.2022
(2/2)
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