Coal Scam: Delhi High Court Refuses To Quash ED Summons To West Bengal Law Minister Moloy Ghatak

The Delhi High Court on Friday refused to restrain the Enforcement Directorate (ED) from summoning West Bengal Law Minister Moloy Ghatak in future in connection with the coal smuggling case.

Justice Swarana Kanta Sharma observed that it was rather surprising that Ghatak himself had not appeared before the ED on 11 occasions out of 12 to give the information that was being sought by the probe agency.

As Ghatak argued that he was repeatedly sent summons and prayed that the ED be restrained from sending him summons in future, the court said:

“In view of the above discussion, it is rather surprising that the petitioner himself has not appeared before the Directorate of Enforcement on eleven occasions out of twelve to give information that they are seeking. In such circumstances, when he himself has not appeared before Directorate of Enforcement except once, such relief cannot even be considered by this Court, at this stage.”

The court also refused to quash the ECIR registered by ED in November 2020 as well as the summons dated March 21. He was directed to appear at New Delhi on March 29 under Section 50 of the Prevention of Money Laundering Act, 2002.

Furthermore, Justice Sharma directed that ED will be at liberty to require Ghatak’s attendance in its office situated at Kolkata by giving at least 24 hours‘ notice to him.

“Notices shall also be issued to the Commissioner of Police, Kolkata and the Chief Secretary, State of West Bengal so that adequate police protection is afforded to the persons seeking to examine or interrogate the petitioners and to avoid any difficulty or obstruction or interference with the officers of Directorate of Enforcement,” the court said.

It added that Ghatak, being the Law Minister of the State of West Bengal, will also ensure that no harm is caused to the officers of examining him at Kolkata, as the relief of allowing him to be summoned at Kolkata was being granted to him at his request only.

“This Court, however, is not deciding any question of law as to whether a man aged above 65 years can be summoned by the Directorate of Enforcement under Section 50 of PMLA at any place and whether the same will be in contravention of Section 160 of Cr.P.C., since the controversy involving applicability of Section 160 of Cr.P.C. to Section 50 of PMLA is pending adjudication before the Hon'ble Apex Court…,” the court added.

Justice Sharma also observed that there were no grounds for directing ED to not take any coercive steps against Ghatak.

“….the petitioner herein was first summoned in September, 2021 and since then, he has not been arrested till date despite the accused not appearing on eight occasions out of the nine, when he was summoned. The petitioner had also appeared only once before the respondent in October, 2021 where his statement under Section 50 of PMLA was recorded,” the court said.

It noted that Ghatak had not been named as an accused and arrested by CBI in the FIR pertaining to the predicate offence and that till date, as per ED’s submissions, he has not been named as an accused in the ECIR as well.

"....mere issuance of summons under Section 50 of PMLA for the purpose of giving information or evidence whether oral or documentary will not attract the protection guaranteed by the Indian Constitution under Article 20(3), as the argument in itself is contradictory since on the one hand, the petitioner himself states that he does not know whether he is accused or witness, on the other hand, he wants protection as an accused and a direction that he cannot be a witness against himself", it observed.

“As observed in preceding paragraph, the petitioner herein is yet not an accused in the present ECIR and the protection under Article 20(3) is available to a person who is ̳accused of any offence‘. In this regard, a reference can also be made to a decision of Hon‘ble Apex Court in case of Vijay Madanlal Choudhary…,” the court said.

Counsel for Petitioner: Mr. Vikas Pahwa, Senior Advocate with Mr. Suhaan Mukerji, Mr. Syed Arham Masud, Mr. S.P. Singh, Mr. Wasif Naushad, Mr. Sahil Saraswat, Mr. Tanmay Sinha and Mr. Sayandeep Pahari, Advocates

Counsel for Respondent: Mr. S.V. Raju, ASG with Mr. Padmesh Mishra, Special Counsel for ED

Title: MOLOY GHATAK v. DIRECTORATE OF ENFORCEMENT

Citation: 2023 LiveLaw (Del) 1134

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