The Delhi High Court on Friday adjourned its hearing on a petition filed by Trinamool Congress MP Abhishek Banerjee, the nephew of West Bengal Chief Minister Mamata Banerjee, and his wife Rujira Banerjee challenging the summons issued to them by the Enforcement Directorate in a case of alleged money laundering in the West Bengal coal scam.
A single-judge bench of Justice Yogesh Khanna was hearing the submissions of Senior Advocate Sidhartha Agarwal, who was appearing for the petitioners, and Additional Solicitor General S.V. Raju appearing for the ED.
The Court refused to grant interim protection to the petitioners as sought by Senior Advocate Kapil Sibal.
Senior Advocate Sidhartha Agarwal, who was supplementing arguments of Kapil Sibal for Abhishek Banerjee, submitted an ED officer has the power to arrest under Section 19 of PMLA, he need not rely on CrPC to find these powers. He added CrPC provides certain protections to the people being arrested, no one can state arrestees don’t have those protections, under PMLA.
He further submitted there are no provisions in PMLA granting the ED custody of an accused, more so once such an arrest is made, there is no provision for length of custody in PMLA, Section 167 CrPC is relied on, for the same.
Senior Advocate Agarwal stated that if an offence is committed, it will be in purview of CrPC by the virtue of Section 4 CrPC, unless is statutorily barred, to enhance this point made he relied upon Directorate Of Enforcement vs Deepak Mahajan, 1994 AIR 1775:
“To sum up, Section 4 is comprehensive and that Section 5 is not in derogation of Section 4(2) and it only relates to the extent of application of the Code in the matter of territorial and other jurisdiction but does not nullify the effect of Section 4(2). In short, the provisions of this Code would be applicable to the extent in the absence of any contrary provision in the special Act or any special provision excluding the jurisdiction or applicability of the Code. In fact, the second limb of Section 4(2) itself limits he application of the provisions of the Code reading……. but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.”
Senior Advocate Agarwal went on to read Section 65 of PMLA to state, PMLA will apply, but where PMLA is silent, CrPC will apply. Section 65 of PMLA says: “Code of Criminal Procedure, 1973 to apply.—The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, insofar as they are not inconsistent with the provisions of this Act, to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under this Act.”
Countering the argument of ED that there is no territoriality in PMLA, Senior Advocate Agarwal invited the court’s attention Section 16 of PMLA. Section 16 (1) (i) of PMLA says: Notwithstanding anything contained in any other provisions of this Act, where an authority, on the basis of material in his possession, has reason to believe (the reasons for such belief to be recorded in writing) that an offence under section 3 has been committed, he may enter any place—
(i) within the limits of the area assigned to him
Relying on Section 16 of PMLA he stated, it is a clear mandate that ED is not above territoriality.
For the ED, ASG S.V. Raju submitted Section 160 of CrPC does not apply to PMLA, as in this case there is inherent conflict between Section 50 of PMLA and Section 160 of CrPC. He added, there is an omission in Section 50 of PMLA of the provisions mentioned in Section 160 of CrPC and the omission amounts to contradiction.
He further submitted, the legislature was aware of the territorial limitation envisaged in Section 160 of CrPC and deliberately chose to omit these, in Section 50 PMLA, furthermore, there is a deliberate departure, as in Section 50 PMLA the powers conferred on the IO are under CPC and not CrPC.
ASG S.V Raju brought the courts attention to Section 13 (2):
“If the Director, in the course of any inquiry, finds that a banking company, financial institution or an intermediary or any of its officers has failed to comply with the provisions contained in section 12, then, without prejudice to any other action that may be taken under any other provisions of this Act, he may, by an order, levy a fine on such banking company or financial institution or intermediary which shall not be less than ten thousand rupees but may extend to one lakh rupees for each failure.”
He further contended that power under 160 CrPC is conferred upon an IO, whereas powers under Section 50 of PMLA are conferred upon a Director, Additional Director, Joint Director, Deputy Director and Assistant Director.
Abhishek Banerjee had been summoned by the ED for the third time on September 21. He has previously responded to the first summon and was quizzed for nine hours on September 6 in New Delhi. He could not respond to the second summon as only a one-day notice was issued to him.
At the outset, CBI, Kolkata, registered a First Information Report in November last year, on the allegations that an illegal coal pilferage was taking place at the Eastern Coalfield Ltd. mines, in the areas of West Bengal. Upon investigation into the matter, it was revealed that the Abhishek Banerjee along with West Bengal PWD & Law Minister Moloy Ghatak, had received kick-backs from funds obtained in the alleg ed illegal mining scandal.
The petition, filed by Abhishek Banerjee, further sought, directions to ED, not to issue summons to the Petitioners for their appearance and thereby not compelling the Petitioners to join the investigation in the West Bengal Coal Scam case.
The petition avers that Banerjee and his wife have neither been named in the CBI FIR, nor in the complain filed by ED under Section 45 of the PMLA. Furthermore, the petition avers that Head Investigative Unit of ED has no jurisdiction, to assume investigative powers in respect of allegations of money laundering arising in respect of the scheduled offence,as the same could only have been investigated into by the concerned zonal office at Kolkata.
The matter has been listed for further hearing on October 6.