Case Law Details
Menka Gambhir Vs Union of India & Ors. (Calcutta High Court)
The Calcutta High Court considered a petition seeking relief against a summons issued by the Directorate of Enforcement (ED) under Sections 50(2) and 50(3) of the Prevention of Money Laundering Act, 2002 (PMLA). The summons required the petitioner to appear before the ED in Delhi on 05.06.2022 in connection with an ongoing investigation relating to ECIR/17/HIU/2020.
Background of the Case
The summons related to an investigation into an alleged coal theft case in West Bengal involving Anup Majhi, a resident of West Bengal. The petitioner, who also resides in Kolkata, contended that two other persons connected with the same ECIR had recently obtained orders from the Supreme Court permitting the investigation to continue in Kolkata instead of Delhi.
Contentions of the Parties
The ED opposed the relief, arguing that the petitioner could not rely on Section 160 of the Code of Criminal Procedure, 1973, as the PMLA, by virtue of Sections 65 and 71, overrides other laws. The petitioner, however, did not seek quashing of the summons but only requested that questioning be conducted in Kolkata instead of Delhi.
Court’s Findings
The Court clarified that the issue was not whether Section 160 of the Cr.P.C. applied, but whether the petitioner should be required to appear in Delhi or Kolkata. It found the ED’s contention that confidential documents were available only in Delhi to be unconvincing. The Court observed that the alleged offence and the entire cause of action arose in West Bengal, the petitioner resided in Kolkata, and there was no reason why the required documents could not be transmitted to the ED’s Kolkata Zonal Office.
The Court also relied on a three-Judge Bench order of the Supreme Court dated 17.05.2022, which had directed the ED to require the attendance of two other persons connected with the same ECIR in Kolkata with 24 hours’ advance notice and had granted interim protection against coercive action. Since those persons were covered by the same ECIR, the Court found no basis to deny similar relief to the petitioner.
The Court further noted that the petitioner had not been named as an accused, a fact also acknowledged by the ED. It distinguished the decisions relied upon by the ED on the ground that those cases involved requests for quashing proceedings, unlike the present petition.
Interim Relief Granted
As an interim measure, the Court directed the Enforcement Directorate to question the petitioner at its Kolkata Zonal Office in September or whenever the petitioner was summoned. The Court also directed that no coercive steps be taken against the petitioner in the meantime. Affidavits were directed to be exchanged, and the matter was listed for further hearing after five weeks.
FULL TEXT OF THE JUDGMENT/ORDER OF CALCUTTA HIGH COURT
The petitioner seeks appropriate relief with regard to a summons issued to the petitioner under Sections 50 (2) and (3) of the PMLA, 2002. The petitioner has been asked by the Directorate of Enforcement to report in Delhi on 05.06.2022 at 10:30 a.m. for the purpose of an on-going investigation. The petitioner is related to the wife of a leader in the present political dispensation in the State.
Upon hearing learned counsel appearing for the petitioner and the E.D., it appears that summons have been issued in relation to an alleged offence under the PMLA, 2002 with regard to ECIR 17/HIU/2020. The said ECIR pertains to alleged theft of coal from districts in West Bengal involving one Anup Majhi who is a resident of West Bengal. The petitioner also resides in Kolkata. The case sought to be made out by the petitioner is that two other persons who are involved in the same ECIR have recently been granted orders by the Supreme Court by which the investigation is to continue in Kolkata.
Learned counsel appearing for the E.D. opposes the relief on the ground that the petitioner cannot take the benefit of Section 160 of The Code of Criminal Procedure, 1973, which provides for certain relaxations in the matter of the power of a police officer to require attendance of witnesses particularly where the witness is a woman. Counsel relies on Sections 65 and 71 of the PMLA, 2002 to submit that the PMLA would have overriding effect in respect of all other laws for the time being in force.
The issue before the Court is not whether the petitioner should come within the framework of Section 160 of the Cr.P.C. The petitioner also does not seek quashing of the summons of the E.D. The only issue is whether the petitioner should be summoned in Delhi or in Kolkata.
The ground urged on behalf of E.D. of confidential documents being available only with the E.D. in Delhi is not acceptable. This is by reason of the fact that on a prima facie assessment of the matter, the entire cause of action and the alleged offence emanates from the State of West Bengal. The petitioner is a resident of Kolkata. It is not believable that the documents which the E.D. seeks to confront the petitioner with, even if that case is to be accepted, cannot be transmitted to the E.D. zonal office in Kolkata for being used in the ongoing proceedings.
The view of the Court is strengthened by a reasoned order passed by the Supreme Court in a challenge by the E.D. from an order of the Delhi High Court which directed the two other persons falling under the same ECIR and the petitioner to appear before the E.D., Delhi for questioning. A three Judge Bench of the Supreme Court by its order dated 17th May, 2022 directed the E.D. to require attendance of the petitioners in Kolkata with an advance notice of 24 hours. The other respondent who was before the Supreme Court was also granted an interim order by way of a direction on the E.D. not to take any coercive steps against the said respondents.
Admittedly, the two other persons who were granted relief by the Supreme Court come under the same ECIR which is ECIR/17/HIU/2020. There is hence no basis for disallowing the prayer of the petitioner being questioned by the E.D. at its zonal office in Kolkata. It is also pertinent to mention that the petitioner has not been named as an accused in the proceedings. This is also the submission of the E.D. The decisions shown on behalf of the E.D. do not apply in the facts of the present case since the petitioner therein had prayed for quashing of the proceedings.
Hence, an interim measure of protection, the Enforcement Directorate is directed to question the petitioner at its zonal office at Kolkata in September or whenever the petitioner is summoned by the E.D.
Since learned counsel appearing for the E.D. seeks to file affidavits, affidavit-in-opposition be filed within three weeks as prayed for, reply thereto, if any, be filed within two weeks thereafter.
List this matter after five weeks.
The E.D. shall also not take any coercive steps against the petitioner in the meantime.
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