9911796707
TMI Blog2023 (9) TMI 1380X X X X Extracts X X X X X X X X Extracts X X X X ..... be taken against the petitioner by the E.D. without adhering to Section 19 of the PMLA, 2002. Revision disposed off. - HON BLE JUSTICE TIRTHANKAR GHOSH For the Petitioner : Dr. Abhishek Manu Singhvi, Sr. Adv., Mr. Kishore Datta, Sr. Adv., Mr. Sanjay Basu, Adv., Mr. Soumen Mohanty, Adv., Mr. Ayan Poddar, Adv., Mr. Piyush Kumar Ray, Adv., Mr. Agnish Basu, Adv., Ms. Riddhi Jain, Adv. For the Enforcement Directorate : Mr. S. V. Raju, Ld. A.S.G., Mr. Phiroze Edulji, Adv., Mr. Samrat Goswami, Adv., Mr. Zoheb Hossain, Adv., Ms. Anamika Pandey, Adv., Ms. Amrita Pandey, Adv., Mr. Ghanashyam Pandey, Adv. For the affected party : Mr. Bikash Ranjan Bhattacharya, Sr. Adv., (Soumen Nandy) Mr. Firdous Samim, Adv., Ms. Gopa Biswas, Adv., Ms. Payel Shome, Adv., Ms. Sampriti Saha, Adv. For the affected party : Mr. Bikash Ranjan Bhattacharya, Sr. Adv., (Ramesh Malik) Mr. Arindam Jana, Adv., Mr. Sudipta Dasgupta, Adv., Mr. Bikram Banerjee, Adv., Mr. Arka Nandy, Adv., Mr. Sagar Dey, Adv., Mr. Sutirtha Nayek, Adv. TIRTHANKAR GHOSH, J. : The present revisional application has been preferred challenging the proceedings being ECIR/KLZO-II/19/2022 under Sections 3 and 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat till 24th July, 2023 until and unless any money trail is discovered against the petitioner, no coercive steps should be taken against him. On 24th of July, 2023, Mr. S.V. Raju, Learned Additional Solicitor General appearing on behalf of the E.D. took a preliminary objection regarding the authority of this Court to take up the application under Section 482 of the Cr.P.C. and to that effect drew the attention of this Court to the order dated 28.4.2023 passed by the Hon ble Supreme Court in SLP (Civil) Diary Nos. 15883/2023. A reference was made from paragraph 3 of the said order which is as follows: 3. Having considered the transcript, we direct that the Acting Chief Justice of the High Court at Calcutta shall reassign the pending proceedings in the case to some other Judge of the Calcutta High Court. The Judge to whom the proceedings are reassigned by the Acting Chief Justice would be at liberty to take up all applications which may be moved in that regard. The attention of this Court was drawn to the assignment order dated 1st May, 2023 passed by the Hon ble the Chief Justice, High Court, Calcutta, wherein it was directed that The Writ Petitions, all app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on ble The Chief Justice, High Court, Calcutta. The application thereafter was taken up for hearing/final disposal on and from 03.08.2023. Dr. Singhvi initially drew the attention of this Court to the relevant documents and paragraph of the application which referred to various instances when the petitioner and his relatives were forced to face inconvenience by the Central Investigating Agencies. It was submitted that the petitioner and his family members have been at the receiving end of various mala fide acts perpetrated by Central Government agencies including the opposite party herein (ED), CBI and others. The petitioner and his family members have been targeted only because the petitioner is a member of AITC, which is the ruling party in the State of West Bengal. The attempts made by the central investigating agencies to repeatedly attack and badger the petitioner and his family is part of a nefarious design undertaken by the Central Government to destabilize and subvert the democratically elected government in the State of West Bengal. The petitioner and his family are victims of a political vendetta, with the sole intention to harass them for oblique purposes. The L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which has been colloquially referred to as Teachers Recruitment Scam . It was submitted that on 29.3.2023 petitioner delivered a speech in a public meeting, wherein he alleged that the Central Investigating Agency had previously pressurised people to implicate him in pending cases and an application being CAN 1 of 2023 was taken out in WPA 9979 of 2023 (Soumen Nandy Vs- State of West Bengal), wherein it was alleged that the accused named Kuntal Ghosh in the aforesaid scam alleged that he had to face custodial torture to wrongly implicate the petitioner. The said application was preferred before the Hon ble Justice Abhijit Gangopadhyay, who directed that all the aspects which have been indicated above including the public speech of one Abhishek Banerjee should also not be outside the investigation of CBI and if necessary by E.D. Aggrieved by the said order the petitioner preferred SLP being SLP (C) Diary No. 15883 dated 2023 titled as Abhisek Banerjee Vs- Soumen Nandy and Ors. After hearing the parties, the Hon ble Apex Court disposed of the aforesaid SLP, vide order dated 28.4.2023 with a direction upon the then Acting Chief Justice, High Court, Calcutta to reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scope of the order passed on 13.4.2023. It has been contended that the petitioner was never named as an accused in the predicate offence being RC 0102022A0006 dated 9.6.2022 registered under Sections 7/7A/8 of the Prevention of Corruption Act and Sections 120B/420/467/468/506/34 of the IPC by the CBI, ECB, Calcutta, which is investigating the Teachers Recruitment Scam of the Primary Education Board in the State of West Bengal. Dr. Singhvi reiterated that the Hon ble Supreme Court granted liberty to the petitioner to exercise his rights under Section 482 of the Cr.P.C., against the overzealousness showcased by the opposite party towards the petitioner. It was urged that the act of giving a public speech and its alleged link to Kuntal Ghosh s complaint has no nexus to the offence of money laundering or proceeds of crime. The E.D. s investigation is based on guess work, surmises, illusory assumptions and speculations and the same is evident from the fishing and roving investigation it is conducting by seeking documents relating as far back as 2012 that too only after Hon ble High Court vide order dated 13.04.2023 directed the Opposite Party to investigate the aspect of the poli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused by the CBI in (i) the alleged predicate offence being RC0102022A0006 or in (ii) any of their chargesheet/supplementary chargesheet till date. (c) The petitioner is not named as an accused in (i) ECIR registered by opposite party, or in (ii) their prosecution complaint or in (iii) their supplementary chargesheet. (d) The information/documents sought for by the opposite party vide its summons had no connection with the limited scope of investigation directed vide order dated 13.04.2023 passed by the Hon ble High Court at Calcutta. (e) The opposite party has itself admitted that it has travelled beyond the spirit and purport of the order dated 13.04.2023 passed by the Hon ble High Court at Calcutta by stating that the summons issued on 08.06.2023 was for enquiry into the money trail of proceeds of crimes generated in the primary teacher recruitment scam under the provisions of the Prevention of Money Laundering Act, 2002. (f) Numerous instances of malafide acts against the petitioner, his family and associates by the Central Government through various agencies have been demonstrated as stated earlier. It was submitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdictional police or pending inquiry by way of complaint before the competent forum. For, the expression derived or obtained is indicative of criminal activity relating to a scheduled offence already accomplished. Similarly, in the event the person named in the criminal activity relating to a scheduled offence is finally absolved by a Court of competent jurisdiction owing to an order of discharge, acquittal or because of quashing of the criminal case (scheduled offence) against him/her, there can be no action for money-laundering against such a person or person claiming through him in relation to the property linked to the stated scheduled offence. This interpretation alone can be countenanced on the basis of the provisions of the 2002 Act, in particular Section 2(1)(u) read with Section 3. Taking any other view would be rewriting of these provisions and disregarding the express language of definition clause proceeds of crime , as it obtains as of now. 283. Even though, the 2002 Act is a complete Code in itself, it is only in respect of matters connected with offence of money- laundering, and for that, existence of proceeds of crime within the meaning of Section 2(1)(u) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d make out a case against the accused. .. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. In State of Punjab Vs. Davinder Pal Singh Bhullar, reported in (2011) 14 SCC 770 reference was made to, paragraph 107 which states: 107. It is a settled legal proposition that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order. In such a fact situation, the legal maxim sublato fundamento cadit opusmeaning thereby that foundation being removed, structure/work falls, comes into play and applies on all scores in the present case. Petitioner referred to Vineet Kumar Vs. - State of U.P. reported in (2017) 13 SCC 369 , in order to substantiate its stand and relied upon the following paragraphs: 22. Before we enter into the facts of the present case it is necessary to consider the ambit and scope of jurisdiction under Section 482 CrPC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered the scope and ambit of Section 482 CrPC. Although in the above case this Court was considering the power of the High Court to quash the entire criminal proceeding including the FIR, the case arose out of an FIR registered under Sections 161, 165 IPC and Section 5(2) of the Prevention of Corruption Act, 1947. This Court elaborately considered the scope of Section 482 CrPC/Article 226 of the Constitution in the context of quashing the proceedings in criminal investigation. After noticing various earlier pronouncements of this Court, this Court enumerated certain categories of cases by way of illustration where power under Section 482 CrPC can be exercised to prevent abuse of the process of the Court or secure the ends of justice. **** 26. A three-Judge Bench in State of Karnataka v. M. Devendrappa [State of Karnataka v. M. Devendrappa, (2002) 3 SCC 89 : 2002 SCC (Cri) 539] had the occasion to consider the ambit of Section 482 CrPC. By analysing the scope of Section 482 CrPC, this Court laid down that authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice the Court has power to prev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] . **** 41. Inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by this Court in State of Haryana v. Bhajan Lal [State of Har ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged. 16. In State of Andhra Pradesh v. Golconda Linga Swamy, (2004) 6 SCC 522 , a two-Judge Bench of this Court elaborated on the types of materials the High Court can assess to quash an FIR. The Court drew a fine distinction between consideration of materials that were tendered as evidence and appreciation of such evidence. Only such material that manifestly fails to prove the accusation in the FIR can be considered for quashing an FIR. The Court held: 5. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of the process of the court to allow any action which would result in inj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sudden death .. Dr. Singhvi also emphasized on Mahmood Ali Ors. Vs. State of U.P. Ors. Reported in 2023 SCC OnLine SC 950 wherein reliance was placed in the case of Bhajan Lal (supra) and the principles referred to in Haji Iqbal (supra) was reiterated. Learned Senior Advocate for the petitioner referred to Neeharika Infrastructure Pvt. Ltd. Vs.- State of Maharashtra Ors. reported in 2021 SCC OnLine SC 315 to demonstrate the extent of powers vested in the High Court under Section 482 of Cr.P.C. While concluding his arguments on behalf of the petitioner learned Senior Advocate submitted that the petitioner is constrained to prefer the present petition under Section 482 of the Code of Criminal Procedure, 1973, to challenge the unfair and biased investigation that is being conducted by the Directorate of Enforcement i.e. the opposite party, as against the petitioner herein and if the same is allowed to continue, it would amount to grave miscarriage of justice and prejudice the petitioner in respect of the fishing and roving enquiry and malicious proceeding conducted by the E.D. Mr. S. V. Raju, learned Additional Solicitor General appearing for the Enforce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry Prosecution Complaints have already been filed arraying a total 25 accused out of which 9 are individual persons in relation to the offence of money laundering under investigation (in connection with which petitioner's presence was sought) and the competent Court has also taken cognizance of the offence and summoned the concerned accused persons. Therefore, there is no occasion of quashing an ECIR once the complaint has been filed and matter is under further investigation in terms of Section 44 Explanation (ii) of PMLA. In the instant case, cash amounting to a total of Rs. 49.80 Crore and gold jewellery valued at more than Rs. 5.08 Crore has already been seized from Ms. Arpita Mukherjee, a close associate of Shri Partha Chatterjee. The ED has also provisionally attached properties worth Rs. 71.18 Crores in this recruitment scam by way of issuance of 3 Provisional Attachment Orders (PAOs) so far in addition to the cash and gold seizure. The total seizure and attachment in the case stands at Rs. 126 Crore (approx.). The investigation against accused Sujay Krishna Bhadra revealed that he was looking after the finance related matters of Shri Abhishek Banerjee and that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Coal smuggling scam by the ED and CBI. The Petitioner has also cited some incidents of purported harassment by the Central Government, however, the same are completely immaterial and irrelevant to the present case being investigated by ED Kolkata Zonal Office-II in ECIR/KLZO- II/19/2022 (Primary Teachers Recruitment Scam). The Petitioner has appeared only once before the 10 in the Primary Teachers Recruitment Scam on 13.09.2023 after getting a verbal assurance from ED during the course of proceeding before this Hon'ble High Court that no coercive steps will be taken against him pending adjudication of the instant criminal revision application. The Petitioner has only tried to avoid the investigation at any cost by filing various applications before the courts. The Petitioner was summoned on 08.06.2023 to appear on 13.06.2023 along with documents, however, the petitioner decided not to appear on the said date on the grounds on being busy with campaigning for the Panchayat elections in the state of West Bengal. It is pertinent to mention that the petitioner has not even submitted complete documents as has been claimed by him in the CRR application. The Petitioner has subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Presidency Correctional Home Jail authorities on the morning of 17.07.2023, however, the accused immediately complained of some illness, and he was readily admitted to the state government run SSKM hospital. The accused continues to remain in Hospital till date and the IO has not been able to further interrogate him resulting into stalling of investigation. It is pertinent to mention that the accused Sujay Krishna Bhadra, in the interim, got admitted in BM Birla Heart Research Centre, Kolkata for his surgery after the order of the Hon'ble High Court. The said order was passed by the Hon ble High Court of Calcutta after concurrence on this aspect was given by a medical board constituted by ED. That the ED had also prayed for getting the voice sample of accused Sujay Krishna Bhadra before the Ld. Special Court (PMLA) and the same was allowed by the Special Court vide order dated 14.07.2023 preferably within 3 days of the parole ending on 17.07.2023. The ED tried to obtain the voice sample of the accused Sujay Krishna Bhadra on 18.07.2023 with the assistance of CFSL Kolkata but the same could not be done owing to the admission of the accused Sujay Krishna Bhadra in SSKM H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manner will only embolden the perpetrators of the criminal scam to file such premature applications to scuttle the investigation which has brought to light the nefarious activities of the high and mighty of the state of West Bengal. Learned Additional Solicitor General submitted that ECIR is merely an internal document and is not even a statutory document. Therefore it cannot be quashed. To that effect, learned ASG drew the attention of the Court to paragraph 457 of Vijay Madanlal Chaudhary Ors. Vs. Union of India, reported in 2022 SCC Online 929 . The relevant paragraph is set out as follows : 457. Suffice it to observe that being a special legislation providing for special mechanism regarding inquiry/investigation of offence of money-laundering, analogy cannot be drawn from the provisions of 1973 Code, in regard to registration of offence of money-laundering and more so being a complaint procedure prescribed under the 2002 Act. Further, the authorities referred to in Section 48 of the 2002 Act alone are competent to file such complaint. It is a different matter that the materials/evidence collected by the same authorities for the purpose of civil action of attachm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamine the correctness of the relief claimed under Section 438 of the Criminal Procedure Code at the instance of the petitioners herein. On this issue reference was also made to Sanjay Tiwari Vs. State of Uttar Pradesh Anr. reported in 2020 SCC OnLine SC 1027 . The relevant paragraph 11 of the said judgement is set out as follows: 11. It is well settled that criminal trial where offences involved are under the Prevention of Corruption Act have to be conducted and concluded at the earliest since the offences under the Prevention of Corruption Act are offences which affect not only the accused but the entire society and administration. It is also well settled that the High Court in appropriate cases can very well under Section 482CrPC or in any other proceeding can always direct the trial court to expedite the criminal trial and issue such order as may be necessary. But the present is a case where proceeding initiated by Respondent 2 does not appear to be a bona fide proceeding. Respondent 2 is in no way connected with initiation of criminal proceeding against the appellant. Respondent 2 in his application under Section 482CrPC in para 6 has described him as a soc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ petition, inasmuch as such averments cannot form the basis for a prima facie apprehension of arrest. We, therefore, also expressed that the writ petition does not merit any consideration to be dealt with on the various issues raised, inasmuch as it will be for the petitioner to work out his remedy as and when any appropriate positive action is taken against the petitioner. In the course of hearing, learned Senior Counsel appearing for the petitioner now seeks to withdraw the writ petition reserving petitioner's liberty to work out his remedy in future, if any such situation arises. Reference was made to Commissioner of Customs, Calcutta Ors. Vs. M/s M.M. Exports Anr. reported in (2010) 15 SCC 647 , the relevant paragraph referred by the Opposite party is set out as follows : 1. By consent the impugned order [M .M. Exports v. Zonal Director General of Foreign Trade, (2001) 3 Cal LT 12 ] is set aside. However, we wish to make it clear that as far as possible the High Court should not interfere at the stage when the Department has issued the summons. This is not one of those exceptional cases where the High Court should have interfered at the stage of issuanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on summoned is not an accused. Mere recording of ECIR by giving a file number does not make a person an accused. Therefore, the present Petitions are highly premature and it is well-settled that the Courts do not interdict the powers of investigating agencies conferred upon them by the statutes . Reliance was also placed on Raghav Bahl Vs. Enforcement Directorate wherein in the order dated 23.01.2023 in W.P. (Crl) 2392/2021 , the Hon ble Delhi High Court was pleased to hold as follows: 11. In the present case, I am of the view that the petition itself is premature. 12. The petitioner is seeking quashing of ECIR and according to the Supreme Court in Kirit Shrimankar vs U.O.I in W.P.(Crl) 109/2013 has held that a writ remedy on account of issuance of summons at the stage of investigation/enquiry is highly premature. **** 14. There is no violation of any fundamental right or even legal right of the petitioner warranting interference of this Hon ble Court at the stage of summons. Reliance is placed on Virbhadra Singh Anr. vs. Directorate of Enforcement Anr. 2017 SCC OnLine Del 8930 **** 16. Hence, the prayer for quashing of the ECIR, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the investigating officer which would mean that it would be open to the Magistrate not to accept the conclusion of the investigating officer and direct further investigation. This provision does not in any way affect the power of the investigating officer to further investigate the case even after submission of the report as provided in Section 173(8). Therefore, the High Court was in error in holding that the State Government in exercise of the power of superintendence under Section 3 of the Act lacked the power to direct further investigation into the case. In reaching this conclusion we have kept out of consideration the provision contained in Section 156(2) that an investigation by an officer in charge of a police station, which expression includes police officer superior in rank to such officer, cannot be questioned on the ground that such investigating officer had no jurisdiction to carry on the investigation; otherwise that provision would have been a short answer to the contention raised on behalf of Respondent 1. **** 27. Some attempt was made to impress us with utterly irrelevant factors as to how much freight TISCO is paying to the Railways every year and ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aggrieved party. The officials of the Directorate are now injuncted by the Division Bench from arresting the respondent and the time and places for carrying out the interrogations were also fixed by the Division Bench. Such kind of supervision on the enquiry or investigation under a statute is uncalled for. We have no doubt that such type of interference would impede the even course of enquiry or investigation into the serious allegations now pending. For what purpose the Division Bench made such interference with the functions of the statutory authorities, which they are bound to exercise under law, is not discernible from the order under challenge. It is not the function of the court to monitor investigation processes so long as such investigation does not transgress any provision of law. It must be left to the investigating agency to decide the venue, the timings and the questions and the manner of putting such questions to persons involved in such offences. A blanket order fully insulating a person from arrest would make his interrogation a mere ritual, (vide State rep. by the CBI v. Anil Sharma [(1997) 7 SCC 187 : 1997 SCC (Cri) 1039 : JT (1997) 7 SC 651] ). It was als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erence may not be made. Rebutting the contentions advanced by the learned Additional Solicitor General and the decisions relied upon by him, Dr. Singhvi, learned Senior Advocate for the petitioner submitted that the judgement of Kirit Shrimankar v. Union of India and ors. (supra) is distinguishable both on facts and law, as the present application is under Section 482 of the Code of Criminal Procedure and not under Article 32 of the Constitution of India and in the instant case the quashing has been sought for on malicious initiations and continuation which is not limited to the roving enquiry being conducted by the Enforcement Directorate so far as the present petitioner is concerned. With regard to the reliance in respect of the judgement of the Hon ble Supreme Court in Commissioner of Customs, Calcutta and ors.(supra) it was submitted on behalf of the petitioner that the case related to a departmental enquiry and in this case the petitioner has challenged not an enquiry but an investigation being carried out. Distinguishing the paragraph relied upon by the Enforcement Directorate in Virbhadra Singh (supra) it was submitted on behalf of the petitioner that the opposite part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which do not have its genesis on a predicate offence. The judgment so relied upon by the Enforcement Directorate to substantiate their claim of issuing the summons is against the settled propositions of law and the same is to be ignored in the light of the facts which have been set out by the petitioner herein. After completing the arguments initially learned ASG intended to add to his arguments the issues relating to malice. It was argued that the E.D. having material in its possession is entitled to investigate and the proceeding cannot be quashed on grounds of malafide, to this aspect reliance was placed on State of Bihar Vs. P.P. Sharma reported in 1992 Supp (1) 222 which is as follows: 23. The informant, being in a peculiar position having lodged the accusation, is bound to be looked down upon by the accused persons. The allegations of mala fide, therefore, against the informant based on the facts after the lodging of the FIR are of no consequence and cannot be the basis for quashing the proceedings. As regards the Investigating Officer, he has wide powers under the Criminal Procedure Code. He has to perform his duties with the sole object of investigating the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disproportionately large assets. Mala fide intention of the appellant in launching prosecution against the respondent with a view to punish him cannot be a reason for preventing the court of competent jurisdiction from examining the evidence which may be led before it, for coming to the conclusion whether an offence had been committed or not. Allegations of mala fides were also made in P.P. Sharma case [1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192] against the informer. It was held by this Court that when an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceedings. It has been emphasized on behalf of the E.D. that aforesaid view has been reiterated by the Hon'ble Supreme Court time and again, as also in the judgment of the Hon'ble Supreme Court in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 in relation to quash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. 22.08.2023 INSTANCE NO.4 i. The raiding officers of the Opposite Party deliberately downloaded foreign files and clandestinely altered data of one of the computers of Leaps Bounds Pvt. Ltd. ii. The Opposite Party seeks to defend such illegal acts by giving an undertaking before this Court that the concerned electronic devices in which the foreign files were downloaded has not been seized and that they shall not use it as evidence in any proceeding. iii. Notwithstanding the undertaking given by Opposite Party, the aforesaid illegal action of ED officers reeks of malice. 5. 22.08.2023 INSTANCE NO.5 i. The aforesaid foreign files illegally downloaded by the officers of Opposite Party during raid seems to be related to an educational institution, whereas the Opposite Party is also investigating the petitioner in connection with a scam purported to be related to the education department. ii. It is not uncommon for a particular premises to be raided multiple times by the same investigating agency or by another one. iii. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resence of staff of the company. The said office computer has not been seized by the Opposite Party. Hence, there can be no allegations of foul play In this regard, it is stated that the contents of the opposite party's letter are false, make belief and a desperate attempt at salvaging its illegal acts. The whole premises and the computer devices were under the full control of the opposite party and its officials. This creates doubts about the real intention behind such downloads. Furthermore, the opposite party has stated that one of their team members were checking the status of hostel accommodation for his daughter. However, interestingly, it has been brought to light that the opposite party's officer was browsing hostel allotment lists for men's hostels. As such, it is absurd that an officer would be searching for men's hostel for his daughter and the same does not make any sense. 8. 26.08.2023 INSTANCE NO.8 i. The Opposite Party in its Letter dated 26.08.2023 intentionally suppressed and/or failed to mention in its letter dated 26.08.2023 that Ms. Sushmita Chakraborty, of Leaps Bounds Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner has not only challenged the entire investigation, but also the previous Summons issued to him by the opposite party under Section 50 (2) and (3) of PMLA. iv. While the instant case was being argued, specific submissions have been made on behalf of the Opposite Party that the petitioner cannot challenge the previously issued Summons since they have become infructuous due to elapse of time. v. However, while trying to bypass the petitioner's challenge in the courtroom, the Opposite Party's issuance of fresh Summons is bad in law. vi. While this Hon'ble Court is yet to determine the fate of not only the entire investigation qua the petitioner and also the legality of the previously Summons, the opposite party has attempted to overreach this Hon'ble Court's majesty. It was additionally submitted that the Enforcement Directorate has statutory right to investigate into the money trail leading to the proceeds of crime but in this case despite repeated queries from the court, the Enforcement Directorate did not produce any materials to show/relate any money trail which has been prima facie established so far as the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other hand the petitioner s took the plea of malice as subsequently some other Central Agency could have conducted search and considered the same to be a part of the Teachers Recruitment Scam leading to further harassment as the list(s) only consisted names of students in the downloaded files. However, after CFSL, Kolkata gave its opinion the Investigating Officer gave an undertaking that these materials will not be used in any investigation. The approach of the E.D. Officers were casual but the Court had to intervene to stop canvassing and stretch the issue as the core subject relating to the present application under Section 482 of Cr.P.C. was being deviated towards the end of the hearing. Now, so far as the mainstream argument is concerned the spirit of petitioner s argument is the apprehension arising out of the previous instances of being harassed or inconvenience caused to him or his family members based on instances which have been cited on his behalf. The petitioner as such apprehended that the Enforcement Directorate may behave as police authorities pursuant to the directions passed by the High Court in its order dated 13.04.2023 and 18.05.2023. This is the rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upplementary Complaint. As such, except the statement of Sujay Krishna Bhadra (an accused who is in custody) no materials were produced by E.D. before this Court to relate the petitioner with the ECIR under challenge. Having regard to the same I direct that no coercive measures would be taken against the petitioner by the E.D. without adhering to Section 19 of the PMLA, 2002 as explained in paragraph 39 of the judgment of the Hon ble Supreme Court in V. Senthil Balaji Vs. State Represented by Deputy Director Ors. reported in 2023 SCC OnLine SC 934 , for the purposes of convenience which is set out as follows: 39. To effect an arrest, an officer authorised has to assess and evaluate the materials in his possession. Through such materials, he is expected to form a reason to believe that a person has been guilty of an offence punishable under the PMLA, 2002. Thereafter, he is at liberty to arrest, while performing his mandatory duty of recording the reasons. The said exercise has to be followed by way of an information being served on the arrestee of the grounds of arrest. Any non-compliance of the mandate of Section 19(1) of the PMLA, 2002 would vitiate the very arrest it ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
