TaxTMI 
TaxTMI 
TaxTMI 
2022 (3) TMI 112
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....sue regarding powers of the authorities pertaining to summon, production of documents and to give evidence under Section 50 of the Prevention of Money Laundering Act. 3. The petitioners have filed this petition under Article 226 of the Constitution of India challenging the summons dated 19.07.2021 under Section 50 (2) of the Prevention of Money Laundering Act 2002 (in short the PMLA Act). and non-grant of copy of Enforcement Case Information Report (in short the ECIR) to the petitioners whereby the respondents have been registered ECIR No.ECIR/RPSZO/06/2020/401 against the petitioner No.1. 4. Brief facts of the case are that the petitioners have filed this petition on the ground that they have been served with the impugned summons dated 19.07.2021 directing them to appear personally and produce the documents by the respondent No.2 exercising powers under Section 50 of the Prevention of Money Laundering Act. The petitioners are required to produce the documents in the case of the petitioner No.1 with whom the petitioner No. 2 & 3 have no business or any monetary relations. The petitioner have made separate applications before the respondent No.2 for grant of copy of the ECIR but t....
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....tive and incomplete as it does not provide the petitioner with relevant information required to file adequate and proper reply. The petitioners are being forced to give evidence against themselves without informing them fully against acquisitions, therefore the petitioners pray for the following reliefs: 10.1. this Hon'ble Court may kindly be pleased to quash the impugned summons dated 19.07.2021 (Annexure P/1) being incomplete and illegal. 10.2. This Hon'ble Court may kindly be pleased to direct respondents to provide a copy of ECIR No. 06/2020 to the petitioners and grant reasonable time to the petitioners to reply allowing the petitioner for proper legal representation to protect themselves from self incrimination. 10.3. This Hon'ble Court may kindly be pleased to direct the respondents not to take any coercive action against the petitioners during the pendency of the case. 6. Reliance has been placed in the natter of Raman Bhogilal Shah and Another Vs. D.K.Guha and Others, (1973) 1 SCC 696; Enforcement Directorate Vs. Deepak Mahajan (1994) 3 SCC 440; Samaj Parivartan Samudaya an Others Vs. State of Karnataka and Others reported in (2012) 7 SCC 407; Amish Dewangan Vs. Uni....
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....tice No.-T4/RPSZO/01/2019/AD(DSD) dated 16.05.2019 was disposed of in which a penalty of Rs. 1,00,000/- was imposed upon the petitioner No.1. The same is very clear from a bare reading of Annexure P/2 that the petitioner No.1 was never acquitted or pardoned but a penalty of Rs. 1,00,000/- was imposed on him. Recording of the ECIR for the sake of maintaining record of the cases under the investigation for offences falling under PMLA in the Organization i.e. Enforcement Directorate which is an internal document for the sake of maintaining administrative convenience. The Director, Additional Director, Joint director,Deputy Director or Assistant Director shall have the 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. 8. A bare reading of the mandatory provisions contained in Section 50 of the PMLA makes it ample clear that the statute empowers the enforcement directorate to summon any person during investigation to record his or her statements, give evidence or to produce documents as sought by the respondent authorities,. 9. The provisions contain....
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....he documents available on record that the petitioners No.1 Mishri Lal Pandey was posted as Additional Director, Social Welfare Department, Raipur. The anti Corruption Bureau (ACB) Raipur conducted search operation in the house of the petitioner on 16.02.2017 and during search some foreign currencies were recovered from the possession of the petitioner No.1 and he was fined under the provisions of FEMA 1999 vide adjudication order No. ADJ/03/RPSZO/2019AD(DSD) dated 13.08.2019 in which a penalty of Rs. 1,00,000/- was imposed upon the petitioner No.1 and ECIR bearing No. ECIR/RPSZO/06/2020 was recorded on 27.02.2020 and investigations under the provisions of the PMLA were initiated. 14. During the investigation, the impugned summons were issued to the petitioner vide Annexure P/1 wherein it has been mentioned that: 15. Counsel for the respondents submit that as per the provisions of the Code of Criminal Procedure, copy of First Information Report was provided to the accused and after receiving the summons under Section 50 of the PMLA by the accused, for the purpose of constitutional protection guaranteed under Article 20(3) of the Constitution of India, the respondents/Enforcement D....
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....cts have not been considered by this Court in any case which has been brought to our notice, but we do not think that it is necessary to dispose of these contentions because we are of the opinion that the second point raised by Mr. A.K.Sen must prevail. 24. Although we held that the petitioner is a person accused of an offence within the meaning of Article 20(3), the only protection that Article 20(3) gives to him is that he cannot be compelled to be a witness against himself. But this does not mean that he need not give information regarding matters which do not tend to incriminate him. This Court observed in State of Bombay V. Kathi Kalu Oghad (1) as follows : " In order that a testimony by an accused person may be said to have been self-incriminatory the compulsion of which comes within the, prohibition of the constitutional provision, it must be of such a character that 90by itself should have the tendency of incriminating the accused, if not also of actually doing so. In other words it should be a statement which makes the case against the accused person at least probable,considered by itself. In the decision of the Enforcement Directorate Vs. Deepak Mahajan (1994) 3 SCC ....
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....o be a detailed document containing chronicle of all intricate and minute details. In Dharma Rama Bhagare Vs. State of Maharastra (1973) 1 SCC 537: 1973 SCC (Crl.) 21) it was held that an FIR is not even considered to be a substantive piece of evidence and can be only used to corroborate or contradict the informant's evidence in the Court. 115. The true test for a valid FIR, as laid down in Lalita Kumari (Lalita Kumari Vs. State of UP (2014) 2 SCC 1:(2014)1 SCC (Cri.) 524) is only whether the information furnished provides reason to suspect the commission of an offence which the police officer concerned is empowered under Section 156 (1) of the Criminal Procedure Code to investigate. The questions as to whether the report is true, whether it discloses full details regarding the manner of occurrence; whether the accused is named or whether there is sufficient evidence to support the allegation are all matters which are alien to consideration of the question whether the report discloses commission of a cognizable offence. As per sub-sections (1) (b) and (2) of Section 157 of the Criminal Procedure Code, a police officer may foreclose an FIR before investigation if it appears to him....
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.... 93 and Section 228 of the Indian Penal Code, 1860 (45 of 1860). (5) subject to any rules made in this behalf by the Central Government, any officer referred to in subsection (20 may impound and retain in his custody for such period, as he thinks fit, any records produced before him in any proceedings under this Act. 19. Thus, from bare reading of the above section it can be said that the respondent/authorities have ample power to summon any person during the investigation and to record their statement, give evidence or produce documents as sought by the respondent/authorities. Section 50(4) of the PMLA stated that every proceeding under sub-sections (2) an (3) shall be deemed to be a judicial proceeding within the meaning of Section1 93 and Section 228 of the Indian Penal Code, 1860 (45 of 1860). 20. Section 50(2) gives sufficient power to the authority to summon any person whose attendance is considered necessary. In Virbhadhra Singh and Others Vs. Enforcement Directorate, the High Court of Delhi after long discussion, has held that: 143. It is clear from the above discussion that the Prevention of Money Laundering Act, 2002 is a complete code which overrides the general cr....
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....that : 200. In view thereof, having regard to the gravity of the offence, the very object of the PML Act would be frustrated, if the petitioner projects some loophole or infirmity in the implementation of the provisions of the PML Act. In order to get his release from detention, that too by invoking such extra-ordinary remedy, circumventing the very specific provisions of bail, as laid down under Section 45 of the PML Act, In order to get his release from detention, that too by invoking such extra-ordinary remedy, circumventing the very specific provisions of bail, as laid down under Section 45 of the PML Act, or any Statute are to be interpreted in order to advance the substantial cause of justice and not to curtail the same in any way or to create an hindrance n achieving the said cause. If the provisions of PML Act are to be interpreted, therefore, in the proper perspective, then, we do not find that there was any such lacunae, infirmity or, much less, illegality in the arrest and detention of the Petitioner, for this Court to invoke its extra-ordinary jurisdiction for release of the Petitioner. It has been further held that : 189.As regards the petitioner's grievance that ....
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....he following:- (i) the statements recorded under Section 200 or Section 202, of all persons examined by the Magistrate; (ii) the statements and confessions, if any, recorded under Section 161 or Section 164; (iii) any documents produced before the Magistrate on which the prosecution proposes to rely: Provided that if the Magistrate is satisfied that any such document is voluminous, he shall instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court. 25. Hence, from the above Sections it can be stated that when the accused appears before the Court or is brought before the Court, the Magistrate shall without delay furnish copy of the police report and other documents to the accused free of cost but it is no where provided under the PMLA that the copy of ECIR or other documents shall be supplied to the concerned person. The authorities under the PMLA have been vested with the powers of jurisdiction inter alia for gathering all evidence if required by search and seizure, summoning and enforcing the attendance of any person. Economic offence not only effect the individuals alone but dama....