TaxTMI 
TaxTMI 
2022 (11) TMI 1230
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....d vide seizure memo dated 22.08.2019 and another application was filed by petitioner Parkash Gurbaxani also seeking supply of documents and list thereof, seized by the Directorate of Enforcement from the office/premises of the petitioner during conduct of raids. The learned Special Judge, Gurugram has dismissed both the applications vide impugned order dated 22.03.2022 and the aforesaid order has now been assailed by filing two separate petitions under Section 482 of the Code of Criminal Procedure. The facts are being taken from CRM-M-16317-2022, titled 'Ashok Solomon Versus Directorate of Enforcement'. The Directorate of Enforcement conducted raids on different premises of the accused and seized various documents and seizure memo was prepared on 22.08.2019. Thereafter, complaint under Sections 44 and 45 of the PMLA was filed before the learned Special Judge, Gurugram. Vide Annexure P-2, petitioner Ashok Solomon filed an application before the learned Special Judge, Gurugram for supply of copies of the documents seized vide seizure memo dated 22.08.2019, with a further prayer that the framing of charges may be deferred until the copies of the documents are supplied to the....
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.... caused to the investigation if the present application is allowed". Similarly reply was also filed by the Directorate of Enforcement in the second case in which it was stated that the petitioner was hiding the fact that it is already in possession of the list of the documents seized during the course of search and that all the documents which have been relied upon by the complainant in the prosecution complaint have been supplied in the best possible condition as available with the Directorate of Enforcement. Para No.4, 5 and 6 of the aforesaid reply are reproduced as under:- "4. That the complainant submits that the accused is hiding the fact that it is already in possession of the list of the documents seized during the course of search. Further, the stated documents have been seized from the premise of accused itself and the contents of the same are well within their knowledge. 5. That the complainant further submits that all the documents which have been relied upon by the complainant in the prosecution complaint have been supplied in the best possible condition as available with the Directorate Enforcement. 6. That it is further contended that the documents mentioned i....
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....ence of an accused is a valuable right but the material question relevant is the stage when such right can be exercised. It observed that once the trial commences, then the stage will arrive when the petitioners will be given opportunity to adduce evidence in their defence and at that stage, the request of the applicants/petitioners to supply the copies of unrelied upon documents may be relevant but at this stage when the trial is yet to commence the above request was pre-mature. It further observed that the petitioners have no right to produce any document on record and otherwise also the investigation of the case is still in progress and therefore, returning of documents not yet relied by the complainant may be prejudicial to further investigation and therefore, dismissed both the applications. The issue therefore arises in the present two petitions is as to whether the petitioners are entitled for supply of documents which have been allegedly seized by the Directorate of Enforcement or not. Submissions made by learned counsels for the petitioners Learned counsel appearing on behalf of petitioner in the case of Ashok Solomon made the following submissions: 1. Every document ....
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.... of the Code of the Criminal Procedure and ought to have allowed the application of the petitioner seeking copy of documents seized by the Enforcement Directorate during the course of investigation and deliberately not made part of the complaint before proceeding to the stage of framing of charges. The learned counsel further submitted that the learned Special Judge has erroneously interpreted the judgment of the Hon'ble Supreme Court in State of Orissa Versus Debendra Nath Padhi (Supra). 5. Learned counsel also referred to Section 46 of PMLA which provides that the provisions of Code of Criminal Procedure 1973 shall apply to the proceedings before a Special Court and for the purpose of the said provisions, a Special Court shall be deemed to be a Court of Sessions and the person conducting the prosecution before the Special Court, shall be deemed to be a Public Prosecutor. He submitted that since the provisions of Code of Criminal Procedure are applicable to the Money Laundering Act, the provisions of Section 208 and all other proceedings will also apply and therefore, the petitioner was entitled for the grant of all the documents whether relied upon or unrelied upon even bef....
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....age no right vests in the petitioners to seek the unrelied upon documents. He further submitted that the Enforcement Directorate is conducting further investigation in the matter and the documents being sought by the petitioners which have not been relied upon in the prosecution complaint are subject matter of further investigation and for that reason, the petitioners are not entitled for the same. 3. He submitted that it is a settled principle of law that at the stage of framing of charges, an accused is not entitled to any documents other than those relied upon in the police report or the complainant. He referred to a judgment of the Hon'ble Supreme Court in the case of State of Orissa Versus Debendra Nath Padhi (Supra) in this regard and submitted that it is clear that at the stage of framing of charges what is to be considered is only the material filed by the prosecution and the documents submitted therein and nothing more and therefore, what is to be seen at the stage of framing of charges is the relied upon documents and not the unrelied upon documents. 4. He submitted that it is also evident that the petitioners are seeking the unrelied upon documents for the purpos....
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....rt in para 11 it was held that the list be supplied to ensure that in case the accused is of the view that such materials are necessary to be produced for a proper and just trial, she or he may seek appropriate orders under the Code of Criminal Procedure for their production during the trial in the interest of justice. Had the unrelied upon documents been required to be supplied, the Hon'ble Supreme Court ought not have noted that the purpose of the list is so that the documents may be summoned at the appropriate stage of the trial. Therefore, the purpose of the list is only to let an accused know the documents which have been seized so that the same may be summoned at the appropriate stage when required. 8. He further submitted that as per the directions of the Hon'ble Supreme Court in the aforesaid judgment, the Punjab and Haryana High Court has also incorporated Draft Rules in Volume III, Chapter I, Part D in Rule 6 which also provides that an accused should be supplied a list of documents, material objects and exhibits seized during the investigation and relied upon by the Investigating Officer in accordance with Sections 207 and 208 of the Code of Criminal Procedure.....
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....A or the Cr.P.C, there is no such provision for inspection of unrelied upon documents and therefore, the aforesaid judgment in CBI Versus INX Media Pvt. Ltd. (Supra) is not applicable in the present case. Consideration of submissions made by learned counsel for the parties. Both the petitioners had filed separate applications before the learned Special Judge, Gurugram exercising the powers under the PMLA for supply of copies of documents seized vide seizure memo dated 22.08.2019 during the conducting of raids. In fact it was precise prayer made by petitioner Ashok Solomon before the learned Special Judge, Gurugram seeking direction to the respondent-ED to supply copies of the documents which were seized and the precise prayer made by another petitioner namely Parkash Gurbaxani was that the petitioner be supplied documents and list thereof seized by the Directorate of Enforcement from the office and premises of the petitioner during raids. Both the applications were dismissed by way of a common impugned order. The gist of prayers made in both the applications was for supply of the documents which according to the petitioners were seized during the raids by the respondent-ED. Howev....
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....ioners of the present two cases. Replies filed by the respondent-ED before the learned Special Judge, Gurugram have already been reproduced above. Therefore, so far as the supply of the relied upon documents is concerned, there is no dispute with regard to the same that the same have already been supplied to the petitioners. A perusal of the prayers made in the applications filed by the petitioners before the learned Special Judge, Gurugram also shows that a prayer was made for supply of the copies of the documents seized during the raids vide seizure memo but no distinction has been made in the prayer clause with regard to relied upon or unrelied upon documents. Since the relied upon documents have already been supplied to the petitioners, the question for determination would now be as to whether the petitioners have any right for the supply of unrelied upon documents or not. This issue can be considered in the light of the judgment of the Hon'ble Supreme Court, other High Courts and Punjab and Haryana High Court Rules and Orders. In Re: To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials Versus The State of Andhra Pradesh and others (Supra)....
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....X XXX 21(4). Supply of documents under Section 173, 207 and 208 Cr.P.C-(i) Every Accused shall be supplied with statements of witness recorded under Sections 161 and 164 Cr.PC and a list of documents, material objects and exhibits seized during investigation and relied upon by the Investigating Officer (IO) in accordance with Sections 207 and 208, Cr. PC. Explanation: The list of statements, documents, material objects and exhibits shall specify statements, documents, material objects and exhibits that are not relied upon by the Investigating Officer." A perusal of the aforesaid would show that the learned Amicus Curiae before the Hon'ble Supreme Court had pointed out with regard to the supply of documents and statements at the time of the commencement of trial and the Hon'ble Supreme Court was of the opinion that while furnishing the list of statements, documents and material objects, the Magistrate should also ensure that list of other materials, even if they are not relied upon should be furnished to the accused. During the course of arguments Mr. Raju had submitted that even the Hon'ble Supreme Court was emphasizing on the list of statements, documents and mate....
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....ents should also be supplied to the accused. In the present case, the petitioners are seeking supply of all the documents which are either relied upon or not relied upon. However, the relied upon documents have already been supplied to the petitioners in view of categorical stand taken by the ED not only before the learned Special Judge but also before this Court. So far as the unrelied upon documents are concerned, as per the aforesaid Punjab and Haryana High Court Rules and Orders, the petitioners may ask for a list of those documents which are not relied upon by the Investigating Officer. However, the petitioners have not prayed for seeking a list of the documents which are not relied upon by the prosecution either in the present petitions or before the learned Special Judge but they have prayed for supply of all the documents. The Hon'ble Supreme Court in State of Orissa Versus Debendra Nath Padhi (Supra) had observed that at the stage of framing of charges, roving and fishing inquiry was not permissible and in case the contention of the accused is accepted it would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination the....