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Synopsis

Senior Advocate Vikas Pahwa appearing for Enamul Haque submitted before the Delhi High Court on Tuesday that “the Elementary and Foundational facts have not been established by the Directorate of Enforcement (ED)” in the present case.

A bench of Justice Anup Jairam Bhambhani was hearing the bail plea of Mohd. Emanuel Haque in the case related to cattle smuggling across the India-Bangladesh border in West Bengal. He was arrested by the Directorate of Enforcement.

The senior counsel submitted several precedents to support his submissions. He also stated that Haque has been granted bail by the Supreme Court in January 2022, in the same matter pertaining to the Central Bureau of Investigation (CBI) case. Referring to the CBI order, he read relevant portions and argued that till date in the CBI case, the investigation is ongoing and no charges have been framed.

Taking note of the submissions, the single-judge bench adjourned the matter for the conclusion of submissions of Pahwa on February 21. 

Pahwa had earlier, argued that the "link to the proceeds of crime is missing" in the present case. Pahwa had contended that it is the ED’s duty to establish the foundation facts of the case and that the burden of proof shifts only when the trial starts, and the chargesheet has been filed.

He had added that for proceeds of crime to be established, there has to be some link, either by banking statements or statements of witnesses; in the present case, there are none. Referring to the chargesheet of the Central Bureau of Investigation (CBI), the senior counsel had argued that it has no supporting evidence at all. “ED has not identified the hawala channels, no bank statements, no S.50 statements of witnesses, nothing on the money has come from Bangladesh, nothing on how the money was used”, he had argued.

Furthermore, he had argued that they (ED) have just picked up a certified copy of a diary, which is alleged of Manoj Sinha (a staff of Haque), wherein certain entries were made of Rs.12.8 crores. “Who has given the money to Manoj Sinha? No evidence is there as to whether that diary is his. No forensics! A lot of assumptions are there. They have just picked up entries from the diary”, the senior counsel had argued.

Pahwa had also emphasized that the investigating agency only harped on the third stage, without establishing proceeds of crime and scheduled offence in the case. He had argued that the ED should satisfy the court on how the proceeds of crime are generated in this case.

It is to be noted that Pahwa in December argued that the investigation agency failed to show scheduled offences, and proceeds of crime, and thus, Section 3 of the Prevention of Money Laundering Act (PMLA) falls flat in the case against Haque. Relying on the Vijay Madanlal Judgment of the Supreme Court, he argued that money laundering is “not a standalone offence”.

Notably, in April, the trial court had taken cognizance of a chargesheet filed by the ED against former Trinamool Congress (TMC) leader Vinay Mishra, his brother Vikas Mishra and Md. Enamul Haque, the alleged kingpin of cattle smuggling ruckus across the India-Bangladesh border. Special Judge CBI Sanjay Garg, while taking cognizance against Haque, had noted that ED had filed a chargesheet under Sections 44 and 45 of the Prevention of Money Laundering Act (PMLA), 2002 for the offences under Sections 3 and 70 of PMLA, punishable under Section 4 of PMLA.

Moreover, in January 2022, a division bench of Justice DY Chandrachud and Justice Dinesh Maheshwari of the Supreme Court granted bail to Haque in a case by CBI related to the same issue.

Case Title: Mohd. Enamul Haque v. Directorate of Enforcement