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TMI Blog2024 (5) TMI 980X X X X Extracts X X X X X X X X Extracts X X X X ..... 007 (3) TMI 265 - SUPREME COURT] , the Hon'ble Apex Court, while dealing with a case of issuance of summons under Section 108 of Customs Act, had expressed that except in exceptional cases, High Courts should not interfere at the stage of issuance of summons. In respect of the provisions of PMLA , Section 50(2) of the Act unambiguously enumerates that the Assistant Director shall have 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 - The PMLA , being a Special Act, has provided certain mandatory provisions in order to ensure the effective investigation of the offence of money laundering. The officers empowered under PMLA are required to make investigation into the offences under the said law and having regard to the observations made by the Apex Court in Vijay Madanlal Choudhary they could not be equated with police officers. The law confers upon them requisite powers to carry out investigation and collect evidence. No person is entitled in law to evade the summons issued under Section 50 PMLA on the ground that there is a possibility that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose of the investigation which investigation appears to be a tool for propaganda than any serious or sincere endeavour to inquire facts and affix responsibility therefore, b. issue a writ, order or direction in the nature of certiorari quashing the second ECIR/13/LKZO/2019 registered at zonal office Lucknow and all subsequent communications/ proceedings emanating therefrom, c. issue a writ, order or direction in the nature of certiorari quashing the third ECIR/25/LKZO/2023 registered at zonal office Lucknow and all subsequent communications/ proceedings emanating therefrom, d. issue a writ, order or direction in the nature of mandamus directing the respondent and its officers to show scrupulous regard for their statutory responsibilities to avoid misconduct in discharge thereof and not to use their investigation to violate the fundamental rights of citizens and the successive ECIR not only being impermissible in law but infringing both the reputation and fair treatment of the persons against whom such investigation is directed, e. issue a writ, order or direction in the nature of mandamus or any other writ, order or direction to the respondents to forthwith desist from contraveni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of subsequent ECIR has been lodged while replying to the said summons sought copy of the ECIR's and also posted a copy thereof through speed post but no copy of ECIRs have been provided and in all probability the summons which have been sent pertaining to the above mentioned two subsequent ECIRs are with regard to the same companies which have already been investigated by the Directorate of Enforcement and pertaining to which a fulfledged complaint has already been filed before the Special Court Companies Act, Dwarika, Delhi and it is not revealed as to whether any further investigation or inquiry is being done by the Enforcement Directorate, in the same matter. 8. It is vehemently submitted that the instant case is an example wherein the authority vested in State has been abused and exploited by the State Authorities. The two ECIRs lodged subsequently cannot be contemplated to be having new cause of action as copy of the same has never been provided to the petitioner and once in the identical matter the allegations have been investigated and complaint has been filed the department is not having any power to open a denovo investigation on the same set of allegations/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate cases of PMLA and the same is not maintainable. 11. It is vehemently submitted that the summons which have been issued to the petitioner have been issued by the Enforcement Directorate in exercise of power contained under Section 50 of P.M.L.A. and the same has been issued in furtherance of 2 ECIRs thus the present application under Section 482 Cr.P.C. is not maintainable in view of the law laid down by the Full Bench in Ram Lal Yadav and others Vs. State of U.P. and others reported in MANU/U.P./0576/1989. 12. It is further submitted that at this point of time it is neither clear nor decided whether the applicant has been summoned as an accused or simply as a witness in the cases which are under investigation and the same depends upon the outcome of the investigation /interrogation of the petitioner and any judicial intervention at this stage is likely to create a hurdle in smooth and fair investigation. 13. It is further submitted that ECIR-02-LKZO- 2019 was registered with reference to offences under the Companies Act read with relevant provisions of the IPC and the matter was investigated by the SFIO and a complaint was filed before the concerned Court and the Enforcement Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to investigate the ECIR (FIR). 17. Learned counsel for the Enforcement Directorate has placed reliance on the following case laws:- (i) Ram Lal Yadav and others Vs. State of U.P. and others reported in MANU/U.P./0576/1989. (ii) Dukhishyam Benupani, Assistant Director, Enforcement Directorate (FERA) Vs. Arun Kumar Bajoria reported in (1998)1 SCC 52. (iii) Mr. Talib Hasan Darvesh Vs. The Directorate of Enforcement passed in W.P. (Crl.) 780/2024, CRL. M.A.7287/ 2024, Decided on 13.3.2024. (iv) Kirit Shrimankar Vs. Union of India reported in (2018) 12 SCC 651. (v) C.M. Raveendran Vs. Union of India and Assistant Director Enforcement Directorate passed on W.P. (C) No. 28049 of 2020 (E), Decided on 17.12.2020. 18. Having heard learned counsel for the parties and having perused the record, it is reflected that against the petitioner one FIR and one ECIR has been registered by the Investigating Agency as well as by the Enforcement Directorate and after completing of the investigation a complaint with regard to the same has also been filed before the competent court at Dwarika, New Delhi.. The applicant appears to be aggrieved by the issuance of summons to him in ECIR/25/LKZO/2023 and ECIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he offences alleged in the first case were Section 120B read with Section 420 and Section 406 IPC, while the offences alleged in the second case were Section 120B read with Section 411 IPC and Section 25 of the Antiquities and Art Treasures Act, 1972. It is true that the Antiquities and Art Treasures Act had not yet come into force on the date when the FIR was registered. It is also true that Omi Narang and Manu Narang were not extradited for the offence under the Antiquities and Art Treasures Act, and, therefore, they could not be tried for that offence in India. But the question whether any of the accused may be tried for a contravention of the Antiquities and Art Treasures Act or under the corresponding provision of the earlier Act is really irrelevant in deciding whether the two conspiracies are one and the same. The trite argument that a Court takes cognizance of offences and not offenders was also advanced. This argument is again of no relevance in determining the question whether the two conspiracies which were taken cognizance of by the Ambala and the Delhi Courts were the same in substance. The question is not whether the nature and character of the conspiracy has changed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould disclose true and correct facts known to his personal knowledge in connection with the subject matter of investigation. The person is also obliged to sign the statement so given with the threat of being punished for the falsity or incorrectness thereof in terms of Section 63 of the 2002 Act. Before we proceed to analyse the matter further, it is apposite to reproduce Section 50 of the 2002 Act, as amended. The same reads thus: 50. Powers of authorities regarding summons, production of documents and to give evidence, etc.-- (1) 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 264[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 Directo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... records during the course of any investigation or proceeding under this Act. We have already highlighted the width of expression proceeding in the earlier part of this judgment and held that it applies to proceeding before the Adjudicating Authority or the Special Court, as the case may be. Nevertheless, Sub-section (2) empowers the authorised officials to issue summon to any person. We fail to understand as to how Article 20(3) would come into play in respect of process of recording statement pursuant to such summon which is only for the purpose of collecting information or evidence in respect of proceeding under this Act. Indeed, the person so summoned, is bound to attend in person or through authorised agent and to state truth upon any subject concerning which he is being examined or is expected to make statement and produce documents as may be required by virtue of Sub-section (3) of Section 50 of the 2002 Act. The criticism is essentially because of Sub-section (4) which provides that every proceeding Under Sub-sections (2) and (3) shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code. Even so, the fact remains that Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the court room. The phrase used in Article 20(3) is to be a witness and not to appear as a witness . It follows that the protection afforded to an Accused in so far as it is related to the phrase to be a witness is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution. Whether it is available to other persons in other situations does not call for decision in this case. (emphasis supplied) 159. In the context of the 2002 Act, it must be remembered that the summon is issued by the Authority Under Section 50 in connection with the inquiry regarding proceeds of crime which may have been attached and pending adjudication before the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of other tangible material to indicate the falsity of his claim. That would be a matter of Rule of evidence. 162. It is, thus, clear that the power invested in the officials is one for conducting inquiry into the matters relevant for ascertaining existence of proceeds of crime and the involvement of persons in the process or activity connected therewith so as to initiate appropriate action against such person including of seizure, attachment and confiscation of the property eventually vesting in the Central Government. 163. We are conscious of the fact that the expression used in Section 2(1)(na) of the 2002 Act is investigation , but there is obvious distinction in the expression investigation occurring in the 1973 Code. Under Section 2(h) of the 1973 Code, the investigation is done by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate thereby to collect the evidence regarding the crime in question. Whereas, the investigation Under Section 2(1)(na) of the 2002 Act is conducted by the Director or by an authority authorised by the Central Government under the 2002 Act for the collection of evidence for the purpose of proceeding under this A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e presence of their lawyers during such questioning, Apex Court opined as under:- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within twenty-four hours or for that purposes of remand on each occasion, the Court is free to look into the relevant records made available by the Authority about the involvement of the arrested person in the offence of money-laundering. In any case, upon filing of the complaint before the statutory period provided in 1973 Code, after arrest, the person would get all relevant materials forming part of the complaint filed by the Authority Under Section 44(1)(b) of the 2002 Act before the Special Court. 179. Viewed thus, supply of ECIR in every case to person concerned is not mandatory. From the submissions made across the Bar, it is noticed that in some cases ED has furnished copy of ECIR to the person before filing of the complaint. That does not mean that in every case same procedure must be followed. It is enough, if ED at the time of arrest, contemporaneously discloses the grounds of such arrest to such person. Suffice it to observe that ECIR cannot be equated with an FIR which is mandatorily required to be recorded and supplied to the Accused as per the provisions of 1973 Code. Revealing a copy of an ECIR, if made mandatory, may defeat the purpose sought to be achieved by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... biguously enumerated in Section 50 of the PMLA states that the Director for the purpose of Section 12 shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, while trying a suit in respect of the matters stipulated. Therefore, enforcing the attendance of any person is certainly permissible for the purpose of proceeding with the investigation. Sub-clause (3) to Section 50 states that the persons who received such summons from the competent authorities under the PMLA is bound to attend in person. However, the authorised agents are also permitted to attend the investigation on behalf of the person against whom such summon is issued. However, if the competent authorities under the PMLA is of an opinion that personal appearance is required for the purpose of seeking certain specific clarifications, then the scope of the Act is wide and the authorities competent are empowered enough to issue summons for the personal appearance of that person to participate in the investigation process. 26. The PMLA , being a Special Act, has provided certain mandatory provisions in order to ensure the effective investigation of the offence of money laundering. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the future. The investigation in the present ECIR,S are still continuing and the petitioner has only been summoned to appear and submit certain documents which may be in his possession as he had been an employee of the Companies under scanner, thus the petitioner's prayer for quashing of ECIR'S itself is premature as at this stage even the status of the applicant before the ED is not known and the same is in the realm of future. 28. The copy of ECIR'S in question, which are sought to be quashed, has not been placed on record by the ED despite promise in this regard was extended by Ld Counsel representing Enforcement Directorate, thus this Court is not in a position to examine the contents of the same. It is stated that the copies of the ECIR'S may be placed before this Court in sealed cover for perusal. This Court is not inclined to promote the culture of sealed covers in judicial proceedings and this aspect of the matter, as to whether the ED in each and every case may refuse to provide the copy of ECIR to an accused person or even to a witness, may be deliberated in depth by this Court in an appropriate case, but suffice is to say that if there is nothing extra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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