Cattle Smuggling: Calcutta High Court Paves Way For ED To Take Anubrata Mondal To Delhi, Dismisses Challenge To Production Warrant

Mondal was arrested under Section 3 (Offence of money-laundering) and Section 4 (Punishment for money-laundering) of the Prevention of Money Laundering Act (PMLA) by the Enforcement Directorate on November 17, 2022 in relation to a case pending before Special CBI at the Rouse Avenue Court in Delhi.

He was already in judicial custody and detained in Asansol District Correctional Home in connection with a CBI case.

After the arrest, Mondal approached the Delhi High Court challenging the jurisdiction of the Trial Court and also the authority of the Head Investigation Unit (HIU), Enforcement Directorate to investigate into the matter.

Mondal's counsel Senior Advocate Kishor Datta contended that ED had orally assured the Delhi High Court that it will not proceed with the production till January 9 and the said assurance is still in force. However, on March 1, the Superintendent of Asansol Correctional Home received an e-mail from the Additional Director, HIU, New Delhi directing him to produce Mondal before the Trial Court at Delhi in connection with the case under PMLA.

The Special CBI Court, Asansol allowed the prayer made by the Superintendent on March 2.

Datta argued that the writ petition filed by Mondal, challenging jurisdiction of the Trial Court at Delhi is pending and the Special Court, Delhi has also not decided the issue relating to jurisdiction as per the direction made by the High Court.

He further argued that Mondal is seriously ill and should not be taken to Delhi. He submitted that Section 269 of CrPC empowers the Officer-in-Charge of the prison to abstain from carrying out the Court’s order under Section 267 of CrPC where the person in respect of whom an order is made is by reason of sickness or infirmity unfit to be removed from the prison.

Deputy Solicitor General Billwadal Bhattacharyya submitted that Mondal had filed a similar application under Section 482 of CrPC before the Delhi High Court for the stay of operation of the order dated March 2, 2023. No interim order was passed by the Delhi High Court. He further submitted that that purpose and purport of both the applications are similar, i.e. to stall execution of production warrant.

Findings

The single judge bench of Justice Bibek Chaudhuri observed that there is no record that after 9th January, ED renewed the oral assurance before any judicial forum. It observed,

“The case under PMLA is pending before the Special Court (CBI) at Delhi. The petitioner has not been produced as yet in the said case before the Trial Judge for answering to a charge of the offence or for the purpose of any proceeding against him. The Court under whose custody the petitioner is detained, on receipt of the intimation of production warrant from the Officer-in-Charge of the prison, has no other alternative but to direct him to execute the production warrant.”

The court noted that order dated March 2, 2023 is an interlocutory order and the Special Court has no alternative to decide as Section 269 of CrPC empowers the Superintendent, Correctional Home to abstain from carrying out the Court’s order if the person by reason of sickness or infirmity is unfit to be removed from the prison.

“I have already held that the impugned order dated 2nd March, 2023 is interlocutory in nature. The order did not decide or touch upon the rights and liabilities of the petitioner. Therefore, I am of the view that the impugned order is not revisablem” Justice Chaudhuri held.

The court further observed that Mondal has been trying to obstruct the process of the Court. It highlighted that a series of applications were filed by him to resist the ED from executing the production warrant against him.

The court further remarked:

“Not only the petitioner in his private capacity but also the State Police Administration was made to engage by registering a criminal case on 9th December, 2022, namely, Dubrajpur Police Station Case No.266 of 2022 dated 19th December, 2022 under Sections 323/325/307/506 IPC implicating the petitioner in a purported incident of assault which is said to have occurred about one and half years ago. It is important to note that above-mentioned police case was registered on the very date when the Trial Judge issued production warrant in Delhi. It is not a mere co-incident.”

Accordingly, the court dismissed the revision application.

However, it directed that Mondal shall be taken to Delhi by air and a medical officer shall accompany him; he will be examined medically by the Doctors immediately after his arrival in Delhi the records of which shall be produced before the Trial Court in Delhi at the time of his production.

The court further said that successive applications filed by Mondal in different Courts for obtaining favourable order are undoubtedly a clear instance of ‘Forum Shopping’.

Therefore, it imposed an exemplary cost of Rs. 1,00,000/- on him.

Case Title: Anubrata Mondal @ Kesto v. The Director of Enforcement

Citation: 2023 LiveLaw (Cal) 56

Coram: Justice Bibek Chaudhuri

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