In W.P. (CRL) 947/2023 -DEL HC- Mere issuance of summons under PMLA does not attract Article 20(3) protection: Delhi High Court refuses to quash summons against West Bengal Law Minister Moloy Ghatak in money laundering case
Justice Swarana Kanta Sharma [17-11-2023]

Read Order: Moloy Ghatak V. Directorate of Enforcement

Chahat Varma

New Delhi, November 20, 2023: The Delhi High Court has refused to quash summons issued by the Enforcement Directorate to Moloy Ghatak, Minister of Law of West Bengal, in a money laundering case. However, the Court has directed the agency to summon Ghatak at its Kolkata office by providing at least 24 hours' notice.

Ghatak had filed the instant petition, seeking the issuance of a writ of certiorari and/or any other appropriate writ, order, or direction to quash and/or set aside the ECIR and the summons issued by the Directorate of Enforcement. The summons was issued to the Ghatak to appear under Section 50 of the Prevention of Money Laundering Act, 2002 (PMLA).

The single-judge bench, presided by Justice Swarana Kanta Sharma, referred to Section 50 of the PMLA and the decision in Vijay Madanlal Choudhary & Ors v. Union of India & Ors [LQ/SC/2022/908] and observed that the power conferred upon the authorities by virtue of Section 50 of PMLA empowers them to summon 'any person’ whose attendance may be crucial either to give some evidence or to produce any records during the course of an investigation or proceedings under PMLA. The persons so summoned are also bound to attend in person or through an authorized agent and are required to state the truth upon any subject concerning which such person is being examined or is expected to make a statement and produce documents as may be required in a case.

In the context of the present case, the bench ruled that the investigation in the present ECIR was still continuing, and Ghatak had only been summoned to appear and submit certain documents. The bench also took note of the order dated 10.05.2023, wherein the ASG had fairly submitted that the authorities would not take any action in respect of summons which had already been issued to Ghatak until 21.03.2023, out of which the Ghatak had appeared and got his statement recorded on one occasion.

Thus, the bench found no ground to quash the summons issued under Section 50 of PMLA to Ghatak.

As regards the prayer in the present petition seeking the quashing of ECIR, the bench noted that Ghatak himself was not aware of whether he was being summoned under Section 50 of PMLA as an accused or as a witness. The bench also took note of the contents of the status report and the written submissions filed by the Directorate of Enforcement, in which it was clearly stated that as of now, the agency had not filed any prosecution complaint against Ghatak, and he was yet not an accused in the present ECIR.

In such facts and circumstances, the bench opined that the prayer for quashing of ECIR was premature and without merit, and there were no grounds to quash the same.

Regarding one of the arguments raised on behalf of Ghatak, that the agency cannot coerce persons to become witnesses against themselves in violation of Article 20(3) of the Indian Constitution, the bench opined that mere issuance of summons under Section 50 of PMLA for the purpose of giving information or evidence, whether oral or documentary, would not attract the protection guaranteed by the Indian Constitution under Article 20(3).

The bench observed, “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’.”

However, the bench noted that, by a previous order, the predecessor of the Court had directed that, considering Ghatak’s age and medical status, the agency could summon the him at its Kolkata office by providing at least 24 hours' notice.

Therefore, in these circumstances, the Court directed that, in the present case, the agency would be at liberty to require the attendance of Ghatak (aged about 67 years) in its office situated at Kolkata by giving at least 24 hours' notice. Notices would also be issued to the Commissioner of Police, Kolkata, and the Chief Secretary, State of West Bengal, to ensure adequate police protection and to avoid any difficulty, obstruction, or interference with the officers of the Directorate of Enforcement. Ghatak, being the Law Minister of the State of West Bengal, would also ensure that no harm is caused to the officers of the Directorate of Enforcement examining him at Kolkata, as this relief was being granted to him at his request only.

Accordingly, the present petition was disposed of in the above terms.