Delhi High Court - Orders
To Supply Copy Of Pmla Manual On Behalf Of ... vs Amrendra Dhari Singh on 28 October, 2022
Author: Mukta Gupta
Bench: Mukta Gupta
$~2 (Single Bench-Criminal)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 1598/2021
CRL.M.As. 11154/2021 (for ex parte stay), 13866/2021 (for direction
to supply copy of PMLA Manual on behalf of Respondent),
13867/2021 (for exemption from filing duly attested affidavits)
DIRECTORATE OF ENFORCEMENT ..... Petitioner
Represented by: Mr. Zoheb Hossain, Special Counsel
with Mr.Vivek Gurnani and Ms.Sejal
Aneja, Advocates for ED.
versus
AMRENDRA DHARI SINGH ..... Respondent
Represented by: Mr.Madhav Khurana, Advocate with
Ms.Trisha Mittal, Mr.Samarth
K.Luthra, Mr.Kartikeye Dang and
Ms.Riya Arora, Advocates.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
ORDER
% 28.10.2022 CRL.M.A.13867/2021 (for exemption from filing duly attested affidavits)
1. Exemption allowed subject to just exceptions. Attested affidavits be filed within two weeks.
2. Application is disposed of.
CRL.M.C. 1598/20211. The present petition was preferred by the Directorate of Enforcement seeking setting aside of the order dated 15 th July 2021 passed by the learned Special Judge directing supply of the copy of the ECIR No.DLZO- 1/43/2021 to the respondent herein.
2. After notice was issued in this petition, the matter was kept pending Signature Not Verified Digitally Signed By:ANIL KUMAR BHATT Signing Date:31.10.2022 11:27:04 awaiting the decision of the Hon'ble Supreme Court in the batch of petitions before it titled as Vijay Madanlal Choudhary & Others Vs. Union of India & Others 2022 SCC OnLine SC 929 dealing with the various legal issues arising under the Prevention of Money Laundering Act, 2002 (in short, 'PMLA'). The issue whether the accused is entitled to the copy of the ECIR has also been considered by the Hon'ble Supreme Court and while upholding the constitutional validity of Section 5 of PMLA, the Hon'ble Supreme Court held that the Act does not mandate that in every case, copy of the ECIR should be provided to the accused. It was held as under:-
"458. The next issue is: whether it is necessary to furnish copy of ECIR to the person concerned apprehending arrest or at least after his arrest? Section 19(1) of the 2002 Act postulates that after arrest, as soon as may be, the person should be informed about the grounds for such arrest. This stipulation is compliant with the mandate of Article 22(1) of the Constitution. Being a special legislation and considering the complexity of the inquiry/investigation both for the purposes of initiating civil action as well as prosecution, non- supply of ECIR in a given case cannot be faulted. The ECIR may contain details of the material in possession of the Authority and recording satisfaction of reason to believe that the person is guilty of money- laundering offence, if revealed before the inquiry/investigation required to proceed against the property being proceeds of crime including to the person involved in the process or activity connected therewith, may have deleterious impact on the final outcome of the inquiry/investigation. So long as the person has been informed about grounds of his arrest that is sufficient compliance of mandate of Article 22(1) of the Constitution. Moreover, the arrested person before being produced before the Special Court within twenty-four hours or for that purposes of remand on each occasion, the Court is free to look into the relevant records made available by the Authority about the involvement of the arrested person in the Signature Not Verified Digitally Signed By:ANIL KUMAR BHATT Signing Date:31.10.2022 11:27:04 offence of money-laundering. In any case, upon filing of the complaint before the statutory period provided in 1973 Code, after arrest, the person would get all relevant materials forming part of the complaint filed by the Authority under Section 44(1)(b) of the 2002 Act before the Special Court.
459. Viewed thus, supply of ECIR in every case to person concerned is not mandatory. From the submissions made across the Bar, it is noticed that in some cases ED has furnished copy of ECIR to the person before filing of the complaint. That does not mean that in every case same procedure must be followed. It is enough, if ED at the time of arrest, contemporaneously discloses the grounds of such arrest to such person. Suffice it to observe that ECIR cannot be equated with an FIR which is mandatorily required to be recorded and supplied to the accused as per the provisions of 1973 Code. Revealing a copy of an ECIR, if made mandatory, may defeat the purpose sought to be achieved by the 2002 Act including frustrating the attachment of property (proceeds of crime). Non-supply of ECIR, which is essentially an internal document of ED, cannot be cited as violation of constitutional right. Concededly, the person arrested, in terms of Section 19 of the 2002 Act, is contemporaneously made aware about the grounds of his arrest. This is compliant with the mandate of Article 22(1) of the Constitution. It is not unknown that at times FIR does not reveal all aspects of the offence in question. In several cases, even the names of persons actually involved in the commission of offence are not mentioned in the FIR and described as unknown accused. Even, the particulars as unfolded are not fully recorded in the FIR. Despite that, the accused named in any ordinary offence is able to apply for anticipatory bail or regular bail, in which proceeding, the police papers are normally perused by the concerned Court.
On the same analogy, the argument of prejudice pressed into service by the petitioners for non-supply of ECIR deserves to be answered against the petitioners. For, the arrested person for offence of money-laundering is contemporaneously Signature Not Verified Digitally Signed By:ANIL KUMAR BHATT Signing Date:31.10.2022 11:27:04 informed about the grounds of his arrest; and when produced before the Special Court, it is open to the Special Court to call upon the representative of ED to produce relevant record concerning the case of the accused before him and look into the same for answering the need for his continued detention. Taking any view of the matter, therefore, the argument under consideration does not take the matter any further".
3. It is thus evident that though there is no bar to supply the copy of the ECIR to the accused concerned, however, it is not mandatory and thus, providing of the copy of the ECIR has to be examined in the facts of each case, particularly keeping in mind, whether supply of copy of ECIR does not impede the investigation to be carried out by the Enforcement Directorate. In view of the decision rendered by the Hon'ble Supreme Court in Vijay Madanlal Choudhary & Others (supra), this Court vide order dated 7th October 2022 adjourned the proceedings so that learned counsel for the petitioner i.e. the Enforcement Directorate could take necessary instructions after examining the matter as to whether the petitioner has any objection in supplying the copy of the ECIR.
4. Learned counsel for the Enforcement Directorate has handed over a communication vide the Email dated 28th October 2022 wherein it has been instructed "keeping in view the fact that prosecution complaint is already filed and the nature of information in the ECIR and the stage of proceedings and without prejudice to the legal rights and contentions copy of ECIR can be given subject to the condition that he will not share it with any other co-accused".
5. Learned counsel for the respondent in response to this condition of not sharing the copy of ECIR with the co-accused contends that the onus put on the respondent will be too heavy, for the reason, even if the co-accused Signature Not Verified Digitally Signed By:ANIL KUMAR BHATT Signing Date:31.10.2022 11:27:04 procures the copy of ECIR from some other source/place, it may reflect as if it has been shared by the respondent.
6. The apprehension of the respondent appears to be justified and keeping in view the fact that the prosecution complaint which is the basis of the recording of the ECIR has already been filed which contains the gist of the nature of the information in the ECIR and having gone through the contents of the ECIR, this Court is of the considered opinion that there is no impediment in supplying the copy of ECIR to the respondent. Consequently, the petitioner is directed to supply copy of the ECIR to the respondent through the learned counsel within one week. In view of the subsequent developments pursuant to the judgment rendered by the Hon'ble Supreme Court in Vijay Madanlal Choudhary & Others (supra), though no case for setting aside of the impugned order is made out, however, it is clarified that any observations in the impugned order for and against any of the parties will not be treated as a precedent and will have no bearing on the merit of the case during the course of the trial.
7. Petition is accordingly disposed of.
CRL.M.As. 11154/2021 (for ex parte stay) and 13866/2021 (for direction to supply copy of PMLA Manual on behalf of Respondent
1. In view of the order passed in the petition, applications are disposed of as infructuous.
2. Order be uploaded on the website of this Court.
MUKTA GUPTA, J.
OCTOBER 28, 2022/akb Signature Not Verified Digitally Signed By:ANIL KUMAR BHATT Signing Date:31.10.2022 11:27:04