Delhi High Court Refuses Interim Relief To TMC MP Abhishek Banerjee, His Wife In Plea Seeking Quashing Of ED Summons In Coal Scam Case

The Delhi High Court on Tuesday refused to grant interim relief to All India Trinamool Congress MP Abhishek Banerjee and his wife in their plea seeking quashing of summons issued to them by the Enforcement Directorate in connection with West Bengal coal scam case.

While posting the matter for further hearing on September 27, Justice Yogesh Khanna asked both Enforcement Directorate as well as the petitioners to file their replies within three days in the matter. The Court also hinted that it may pass an order in the coming week.

"Let me be very clear, I'm not granting any stay," Justice Khanna clarified.

The plea seeks to quash summons issued by the ED dated 10th September 2021 under sec. 50 of the Prevention of Money Laundering Act, 2002 and further directing ED to not summon them in New Delhi and to carry out any further examination qua the two in Kolkata, West Bengal.

During the course of hearing today, Senior Advocate Kapil Sibal appearing for the petitioners, argued that although the inquiry relates to the year 2017, however, the documents asked by ED date back to much before it.

"They asked me to appear after which I appear on September 6. They grilled me for about 10-11 hours. The moment I went back, they issued another summon to call me again on September 8. They asked me details about the properties owned by me and my family, sources of income of last 5 years, list of employees of the last 5 years. My income tax returns of 10 years ago, ITR of family members," Sibal argued.

"This is a complete fishing and roving inquiry, to find something and start investigating," Sibal added.

He also placed reliance on sec. 160 of CrPC to argue that any police officer, making an investigation may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station.

"There are two aspects. One, a woman can only be investigated where she resides. They can't call her to Delhi. With respect to the first petitioner, he must be investigated within the prescints of police station where the offence has been alleged. Nothing happened in Delhi, all the property in respect of mining case is in West Bengal," Sibal submitted.

On the aspect of issuance of summons, Sibal argued that the summon dated September 10 was recieved by his client at 12:45 on September 11 via email asking him to appear on September 21.

"The lady who works for Times Now tweeted 'Breaking' at 11:38 saying that summon has been issued by ED to me," Sibal submitted.

He also argued that while the ED is entitled to interrogate the petitioners and seek their evidence, they can only do it within the prescints of the police station which is jurisdictional for the purpose of recording statements.

On the other hand, ASG SV Raju along with SGI Tushar Mehta appeared on behalf of the ED. 

It was submitted by Raju that as per Banerjee's own submission and the reply filed by him, it has been stated that he has a Delhi address. 

"He is a member of parliament, he has to be in Delhi for considerable period of time. He attends parliament regularly," Raju submitted.

"We have evidence to show that on the date his wife replied to us saying she can't appear before us, she was in Delhi in a Beauty Parlour. Unfortunately our office don't have the same services as that of a beauty parlour," he added.

Furthermore, on the broader question of jurisdiciton, Raju submitted that sec. 160 of CrPC doesn't apply to PMLA proceedings and that the issue is writ large pending before Supreme Court.

"High Court should stay it's hands and not proceed further in the matter," he said.

It was submitted that there should be little or no interference with the investigation and that it's the prerogative of the Investigating Officer to decide how and where the same has to be carried out.

Adding on the aforesaid, SGI Mehta submitted that PMLA Act by its very architecture is completely designed different from the CrPC and that the distinction created by Sibal between the provisions of CrPC and PMLA Act cannot be accepted.

"The architecture is different because your lords are dealing with money laundering offence which has not only all India implications but also has trans border implications. We don't have a PMLA officer of Connaught Place area. It has national as well as trans national ramifications which can be found under sec. 2 (ra) of PMLA Act," SGI submitted.

At this juncture, the Court asked SGI if it would be appropriate for it to pass an order in view of the pendency of the question before the Apex Court. To this, SGI replied that although there is no stay, however the proprietary requires that it may not pass any order.

"This case is at a very nascent stage. Let them respond. She was found at some place in Delhi and we have evidence to show that she was in Delhi when she said she can't come to Delhi," SGI submitted.

Rebutting to the arguments, Sibal submitted that if the submissions of ED are accepted, the issue will go into root of the matter. 

"They'll start investigating wherever they like. If they are making broad arguments, I also have several broad arguments. All of India is a Police Stations for them. He (SGI) says under PMLA I can interrogate you anywhere. I'm saying you come to West Bengal and investigate. How is that inconsistent with the provisions of Act?" Sibal argued.

"The wife has said that the place of residence is in Calcutta. The document relied by them itself shows that my residence is in Calcutta. This is not a case where I'm running away from investigation. I'm cooperating with investigation," he added.

After hearing the parties at length, the Court posted the matter for further hearing on Monday.

Filed through Advocates Rupin Bahl and Angad Mehta, the petition states that both Banerjee and his wife have not been named neither in the CBI FIR nor in the complaint registered by the ED in New Delhi under sec. 45 of PMLA.

The plea therefore states that the agency "cannot assume investigative powers in respect of allegations of money laundering arising in the scheduled offence as the same could only have been investigated into by the concerned zonal office at Kolkata."

"The Respondent has repeatedly summoned the Petitioner No. 1 and 2, for examination in person, at New Delhi without supplying a copy of the ECIR and without specifying whether the Petitioners are being summoned as witnesses or accused, nor indicating the scope of the investigation being carried out. It is submitted that the Respondent cannot be allowed to exercise the threat of prosecution and penalty inherent under Section 50 of the PMLA to coerce persons to become witnesses against themselves and violate the fundamental protection under Article 20(3) of the Constitution of India, 1950," the plea states.

It adds thus:

"The Petitioners further have serious apprehensions about the fairness of the investigation being conducted by the Respondent owing to the fact that the Respondent is adopting a pick and choose attitude with respect to certain persons and is giving undue benefit and protection to complicit individuals and in return extracting false, baseless and malicious statements from them."

The plea also states that the Agency is selectively leaking information to the media "with the intent of harming their reputation and encouraging a media trial in order to falsely embroil them in baseless and scandalous allegations."

Title: ABHISHEK BANERJEE AND ANR. v. DIRECTORATE OF ENFORCEMENT, REPRESENTED BY ITS ASSISTANT DIRECTOR