Judicial Analysis Court Copy Headnote Facts Arguments Court observation

DELHI HIGH COURT
Swarana Kanta Sharma, J.
Moloy Ghatak – Petitioner
versus
Directorate of Enforcement – Respondent
W.P.(Crl) 947 of 2023 and Crl.M.A. 28645 of 2023
Decided on 17.11.2023

Counsel for the Parties:
For the Petitioner:Mr. Vikas Pahwa, Senior Advocate with Mr. Suhaan Mukerji, Mr. Syed Arham Masud, Mr. S.P. Singh, Mr. Wasif Naushad, Mr. Sahil Saraswat, Mr. Tanmay Sinha and Mr. Sayandeep Pahari, Advocates
For the Respondent: Mr. S.V. Raju, ASG with Padmesh Mishra, Special Counsel for ED and Mr. Pankaj Kumar, IO/Assistant Director

IMPORTANT POINTS
(1) A person who is named in ECIR cannot seek its quashing.
(2) Right against self-incrimination – Mere issuance of summons under Section 50 of PMLA for the purpose of giving information or evidence whether oral or documentary will not attract protection guaranteed by Indian Constitution under Article 20(3).

Headnote:
(A) Prevention of Money Laundering Act, 2002 – Section 50 – Constitution of India – Article 226 read with Section 482 of Criminal Procedure Code, 1973 – Offence of money laundering – Summons issued – Main grievance of petitioner is that he has been repeatedly summoned by Directorate of Enforcement – Power conferred upon authorities by virtue of Section 50 of PMLA empower them to summon €any person whose attendance may be crucial either to give some evidence or to produce any records during course of investigation or proceedings under PMLA – Persons so summoned are also bound to attend in person or through authorised agent – Investigation in present ECIR is still continuing and petitioner has only been summoned to appear and submit certain documents – No ground to quash summons issued under Section 50 of PMLA to petitioner. (Paras 21, 25 and 26)
(B) Prevention of Money Laundering Act, 2002 – Section 50 – Constitution of India – Article 226 read with Section 482 of Criminal Procedure Code, 1973 – Quashing of ECIR – Petitioner himself is not aware as to whether he is being summoned under Section 50 of PMLA as an accused or as a witness – Neither petitioner has filed copy of ECIR before this Court nor he is in possession of same – A person who is named in ECIR cannot seek its quashing – Prayer for quashing of ECIR is premature and without any merit and there are no grounds to quash the same – As petitioner’s prayer for quashing of ECIR itself is premature as status of petitioner is not yet identified in ECIR, contentions regarding cause of action in this case having arisen in State of West Bengal and prosecution complaints in ECIR being filed in New Delhi being illegal and without any jurisdiction, cannot be dealt with at this stage – Respondent will be at liberty to require attendance of petitioner in its office at Kolkata by giving at least 24 hours’ notice. (Paras 27, 28, 29, 30, 31 and 421)
(C) Constitution of India – Article 20(3) – Right against self-incrimination – Protection under Article 20(3) is available to a person who is accused of any offence – Petitioner is yet not accused in present ECIR – Mere issuance of summons under Section 50 of PMLA for the purpose of giving information or evidence whether oral or documentary will not attract protection guaranteed by Indian Constitution under Article 20(3), as the argument in itself is contradictory since on one hand, petitioner himself states that he does not know whether he is accused or witness, on other hand, he wants protection as an accused and a direction that he cannot be a witness against himself. (Paras 32 and 33)
Result: Petition disposed of.

JUDGMENT

Swarana Kanta Sharma, J.—The instant petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’) has been filed on behalf of petitioner seeking issuance of a writ of certiorari and/or any other appropriate writ, order or direction for quashing and/or seeking setting aside the ECIR/17/HIU/2020 and the summons dated 21.03.2023 issued by the respondent summoning the petitioner to appear at New Delhi on 29.03.2023 under Section 50 of the Prevention of Money Laundering Act, 2002 (‘PMLA’) and further directing and issuing an appropriate writ, order or direction to not summon the petitioner to New Delhi in case arising out of ECIR/17/HIU/2020 registered by the respondent on 28.11.2020.

Background Facts: The Prosecution’s Case

2. The case of the prosecution, in brief, is that the FIR/RC bearing no. RC0102020A0022 dated 27.11.2020 was registered by Central Bureau of Investigation (‘CBI’), ACB, Kolkata for the commission of offences under Sections 120B/409 of Indian Penal Code, 1860 (‘IPC’) and Section 13(2) read with 13(1)(a) of the Prevention of Corruption Act, 1988 (‘PC Act’) for illegal excavation and theft of coal from the leasehold area of Eastern Coalfield Ltd. (‘ECL’) in active connivance with officials of ECL, CISF, Indian Railways and concerned other departments, against the following accused persons: (a) Anup Majee @ Lala, (b) Amit Kumar Dhar, the then GM, Kunustoria Area, ECL (Eastern Coalfield Ltd), (c) Jayesh Chandra Rai, General Manager, ECL, Kajora Area, (d) Tamnay Das, Chief of Security, ECL, Asansol, (e) Dhananjay Rai, Area Security Inspector, Kunustoria, ECL (f) Debashish Mukherjee, Security-in- charge, Kajora Area, (g) Other public servants and private persons.

3. It is stated that since the offences mentioned in the said FIR/RC were scheduled offences under PMLA, therefore, the present ECIR i.e. ECIR/17/HIU/2020 was recorded by respondent-Directorate of Enforcement on 28.11.2020 against Anup Majee and other accused persons for the commission of offences under PMLA. It is stated that during the course of investigation conducted by Directorate of Enforcement, one Vikas Mishra was arrested on 16.03.2021 and Ashok Kumar Mishra was arrested on 03.04.2021. Upon completion of investigation, prosecution complaint was filed by Directorate of Enforcement on 13.05.2021 before the Court concerned i.e. Special Judge (PMLA), Rouse Avenue Courts, New Delhi against Vikas Mishra and Ashok Kumar Mishra. It is stated that in the scheduled offence i.e. RC0102020A0022, the CBI, ACB had filed a Report under Section 173 of Cr.P.C. on 19.07.2022 against Anup Majee @ Lala and 40 other accused persons before the Court of learned Special Judge (CBI), Asansol, West Bengal. A supplementary prosecution complaint was also filed by the Directorate of Enforcement on 24.07.2022 before the concerned Special Judge (PMLA), Rouse Avenue Courts, New Delhi. In the course of investigation in the present ECIR, certain documents/digital evidences were shared by Income Tax Department, which had been seized during the course of search conducted by them at various premises of Anup Majee and his close associates. As per prosecution, an analysis of the said documents/digital evidences revealed that one Niraj Singh used to maintain records of proceeds of crime generated by accused persons from the criminal activity in the scheduled offence viz. illegal excavation and theft of coal from the leasehold area of ECL. Similarly, records seized from several premises of Anup Majee reflected that from July, 2018 to March, 2020 (within 21 months), proceeds of crime to the tune of Rs. 2742.32 crores were generated from the illegal coal mining business from various parties/entities/persons. 4. It is also stated in the reply filed by respondent that in the course of investigation, it was deemed necessary that Moloy Ghatak i.e. petitioner herein be examined. As such, for further investigation, petiti