IMPORTANT POINT
The issuance of a show cause notice under the PMLA does not violate the right against self-incrimination under Article 20(3) of the Constitution.

JUDGMENT :

ARUN DEV CHOUDHURY, J.

1. Heard Mr. A. K. Bhattacharyya, learned Senior Counsel, assisted by Mr. D. K. Bhattacharyya, learned counsel for the petitioner and Mr. R. Dhar, learned counsel for the respondent.

2. The present petition under Article 226 of the Constitution of India is filed by the petitioner with a prayer to declare the show cause notice dated 26.10.2017 issued under Section 8 of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as PMLA, 2002) being arbitrary, illegal and unreasonable. The further prayer made is to set aside and quash the aforesaid show cause notice dated 26.10.2017 and also to set aside and quash the complaint proceeding being OC.No.836/2017 pending before the Adjudicating Authority under PMLA, 2002.

3. This court by an order dated 28.11.2017 stayed the further proceeding of OC No. 836/2017. In the meantime, the respondent Enforcement Directorate had filed the connected I.A., being IA(C) 155/2021, for the vacation of the aforesaid interim order as well as the subsequent interim order dated 22.06.2018 passed by this Court in IA(C)/2276/2018. IA (C) 2276/2018 was filed praying for a stay of execution of summons issued by the Enforcement Directorate.

4. As agreed to by the learned counsels for the parties, this writ petition is taken up for final disposal instead of taking the IAs. Since the E.D. has filed its pleadings touching the merit of the writ petition, the matter is taken up for final disposal.

5. The brief fact as projected by the petitioner is that while the petitioner was serving as Secretary to the Government of Assam, Irrigation Department, it was alleged that he had committed an offence under the provisions of the Prevention of Corruption Act, 1988. An amount of Rs. 42,79,500/- was allegedly seized from the office chamber of the petitioner and another amount of Rs. 11,25,000/- along with some documents were allegedly seized from the residence of the petitioner. Subsequently, the investigating authority submitted a charge sheet CS No. 11/2017 under Section 13(1)(d)(ii)/13(2)PC Act and presently, the matter is pending for trial before the learned Special Judge, Assam in Special Case No.16/17. It is also contended that the amount of cash seized, as recorded hereinabove, is presently in the custody of the Vigilance and Anti-Corruption Authorities.

6. During the pendency of such trial, the respondent Enforcement Directorate, under its order dated 29.09.2017, in the exercise of its power under Section 5(1) of PMLA, 2002, provisionally attached the seized amount, with a direction to the petitioner not to remove or part with the said amount without prior permission of the Joint Director of Enforcement Directorate. Subsequently, the impugned show cause notice dated 26.10.2017 was issued by the Adjudicating Authority under Section 8 of the PMLA, 2002 calling upon the petitioner to indicate the source of income, earnings and assets out of which or by means of which, the petitioner had acquired the said properties and it was also directed to the petitioner to appear before the authority on 15.12.2017, failing which it was also provided that complaint would be heard and decided in absence of the petitioner.

7. Mr. A. K. Bhattacharyya, learned Senior Counsel for the petitioner while assailing such action of the respondent adjudicating authorities, argues the following:-

I. If the petitioner is required to reply to the impugned show cause notice during the pendency of the trial of Special Case No.16/17 pending in the court of Special Judge, Assam, the same would amount to disclosure of defence of the petitioner, which would cause severe prejudice to the petitioner in the trial and same would result in violation of the petitioner’s right under Article 20(3) of the Constitution of India.

II. The issuance of impugned show cause notice dated 26.10.2017, is without any reasonable basis since there is no reaso