Sibal: These are issues that have to be looked at. There are far greater ramifications. In all these other acts, there is no closure report, only the power to file complaints.
Sibal continues reading out from Vijay Madanlal Choudhary.
Sibal: ED officials are police officers. They have all powers of a police officer like raid, seizure...
Khanna J: That's there in the Customs Act.
Sibal: Filing chargesheet, closure report...
Khanna J: So under Section 50(2), he has a right to investigate, summon individuals and call for documents. But inquiry is with respect to reporting entity.
Khanna J: Where you are making statements, not as an accused, defence under Art 20 is not available to you. Not going on wider definition of accused. I agree that custody has to be read widely. But, as far as third parties, their statements' will be admissible.
Sibal: But I must know what I am.
Khanna J: Section 50(1) is inquiry...this is with respect to reporting entity. If you look at FERA, the mandate was on reporting authority or bankers to comply. Here, the reporting authority reports, but the compliance is shifted to citizens.
SG Mehta interjects, Sibal exclaims, "The kind of things you have said is appalling!"
Kaul J: This is what is happening, both of you are provoking each other. This cannot happen. Continue reading the paragraph.
Sibal reads out from Vijay Madanlal Choudhary.
Sibal: There should be magisterial oversight. Section 160 and 161 should apply...
Khanna J: As far as a daily diary, etc is concerned, you may have a point. Because there's no contra provision.
Sibal continues his argument -
"There is a violation of Art 20(3) of the Constitution. I am called, I have to sign. I'm not told whether I'm a witness or an accused. This is a very serious issue."
Trivedi J: Mr Sibal, all these issues were raised in Vijay Madanlal. A review is pending...only two points have been accepted for challenge.
Sibal: At the moment, I'm not trying to convince you whether it is right, only that it deserved reconsideration by a larger bench.
Sibal: Here, the problem is, you don't arrest the man at that stage. You call him under Section 50, without telling you whether you are being summoned as a witness or an accused...ECIR is not known to him.
Sibal: Then, the bail provision requires me to show them I'm not guilty. I don't even have the ECIR. I have no information.
Sibal: None of the acts you mentioned (Customs Act, FERA) have the twin conditions...
Khanna J: NDPS Act has it and we have upheld it.
Sibal: But they are police officers there.