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Synopsis

The Supreme Court today has dismissed a plea by TMC MP Abhishek Banerjee and wife, Rujira against summons issued by the Enforcement Directorate to appear in New Delhi office in a money laundering case arising out West Bengal coal theft scam.

The apex court held at the stage of issue of summons, the person cannot claim protection under Article 20(3) of the Constitution.

A bench of Justices Bela M Trivedi and Satish Chandra Sharma also emphasised the provisions of the Prevention of Money Laundering Act being a special act and would prevail over the Criminal Procedure Code.

The court did not find any substance in the challenge made by the couple to the summons issued under Section 50 of the Act.

"We do not find any illegality in the summons issued by the respondent-ED summoning the appellants to its Office at Delhi, which also has the territorial jurisdiction, a part of the offence having been allegedly committed by the accused persons as alleged in the complaint," the bench said.

It is not disputed that Banerjee, being a Member of Parliament has also an official residence at Delhi, the court noted.

"As contemplated in the sub-section (3) of Section 50 (PMLA), all the persons summoned are bound to attend in person or through authorised agents as the officer may direct and are bound to state the truth upon any subject respecting which they are examined or make statements, and to produce the documents as may be required," the bench has said.

The bench further court noted the present ECIR was recorded at the HIU (Headquarters Investigation Unit) which has not been restricted to any territorial jurisdiction in the said organisational structure.

As per the specific case of the ED in the complaint, filed against the accused persons before the Special Court, PMLA, Rouse Avenue Courts, New Delhi, Rs 168 Crores were allegedly received by the Inspector Ashok Kumar Mishra from the co-accused Anup Majee to be delivered to his political bosses, and the said Rs 168 Crores were transferred through vouchers to Delhi and Overseas, which clearly established adequate nexus of the offence and the offenders with the territory of Delhi, the court said.

Referring to Vijay Madanlal Choudhary vs. Union of India (2022), the bench pointed out Section 50 enables the authorised authority to issue summon to any person whose attendance he considers necessary for giving evidence or to produce any records during the course of the proceedings under the Act, and that the persons so summoned is bound to attend in person or through authorized agent, and to state truth upon the subject concerning which he is being examined or is expected to make statement and produce documents as may be required by virtue of subsection (3) of Section 50.

The bench explained at the stage of issue of summons, the person cannot claim protection under Article 20(3) of the Constitution, the same being not “testimonial compulsion”. 

"At the stage of recording of statement of a person for the purpose of inquiring into the relevant facts in connection with the property being proceeds of crime, is not an investigation for prosecution as such. The summons can be issued even to witnesses in the inquiry so conducted by the authorized officers. The consequences of Article 20(3) of the Constitution or Section 25 of the Evidence Act may come into play only if the involvement of such person (noticee) is revealed and his or her statements is recorded after a formal arrest by the ED official," the bench added.

Court further opined that the dispensation regarding prevention of money laundering, attachment of proceeds of crime, and inquiry/investigation of offence of money laundering including issuing summons, recording of statements, calling upon persons for production of documents etc upto filing of the complaint in respect of offence under Section 3 of PMLA is fully governed by the provisions of the said Act itself. 

"Specific procedure prescribed under the Statutory Rules of 2005 for summoning the person under sub-sections (2) and (3) of Section 50 of the Act, would prevail over any other procedure prescribed under the Code, particularly the procedure contemplated in Section 160/161, as also the procedure for production of documents contemplated in Section 91 of the Code, in view of the overriding effect given to the PMLA over the other Acts including the CrPC under Section 71 r/w Section 65 of the PMLA," the bench said.

Banerjee and his wife had challenged the High Court's order of March 11, 2022 dismissing their plea against summons issued on September 10, 2021. They sought a direction to the ED not to issue any summons under Section 50 for their appearance in New Delhi, instead of their hometown/ place of domicile i.e. Kolkata. 

The case involved money laundering to the tune of Rs 1300 Crores in respect of theft of coal and illegal excavation being done by the criminal elements in the leasehold area of ECL.