Calcutta High Court (Appellete Side)
Sanjay Basu vs Union Of India And Ors on 28 April, 2023
Author: I.P. Mukerji
Bench: I.P. Mukerji
28.04.2023 KC(20) WPA 6184 of 2023 Sanjay Basu
-versus-
Union of India and Ors.
With CAN 1 of 2023 Mr. Debasish Roy, Mr. Sagar Bandyopadhyay, Mr. Ayan Bhattcharjee Mr. Amit Kumar Nag Mr. Soumen Mohanty Mr. Ayan Poddar Mr. Piyush Kumar Ray Mr. Agnish Basu Mr. Kush Agarwal Mr. Riddhi Jain Mr. Aakash Mishra....................For the petitioner. Mr. A.K. Chakrabarti, Ld. A.S.G., Mr. Arun Kumar Maiti (Mohanty), Ms. Mary Datta....................For Union of India. Mr. Dhiraj Trivedi, Ld. D.S.G.I., Mr. Billwadal Bhattacharyya, Ld. D.S.G.I., Mr. Samrat Goswami......For Enforcement Directorate.
Re: CAN 1 of 2023.
The writ before us inter alia prays for quashing the proceeding ECIR/KLZO-1/29/2021 started by the Enforcement Directorate.
To ascertain whether there was a prima facie case or any ground for reasonable suspicion by the authorities of any offence having been committed by the writ petitioner, by our order dated 20th March, 2023, we had inter alia directed production of records by the Enforcement Directorate and temporarily exempted the appellant from being summoned by the Enforcement Directorate and restrained the authority from making 2 further search and seizure of the petitioner's premises. This order was appealed against by the Central Government before the Supreme Court.
By its order dated 11th April, 2023 the Supreme Court after setting aside that part of the impugned order by which this court declared that the petitioner would not be required to attend the office of the Enforcement Directorate was set aside and the entire application sent back to this court "to decide the main writ petition in accordance with law".
This application (CAN 1 of 2023) has been filed by the writ petitioner in aid of the main writ.
It appears that during the search and seizure operation carried out by the Enforcement Directorate in the residence of the writ petitioner certain articles like laptop, mobile phones etc. were seized by it from his custody.
In respect of this seizure on 29th March, 2023, the said authority issued a show cause to the writ petitioner under Section 8 of the Prevention of Money Laundering Act, 2002. With the notice was enclosed reasons in support of it under Section 8(1) of the said Act. He was asked to file a written reply to it on or before 18th May, 2023, as to why the said articles should not be permitted to be retained by the Enforcement Directorate. In paragraph 4 of the said statement of reasons attached to the notice it was mentioned that the writ petitioner received Rs. 83.25 lakhs from Pincon 3 Group of Companies and the firm which he runs Aquilaw received Rs. 23 lakhs. In the 4th last line of paragraph 4, it was specifically stated that the said sum received was "for providing legal assistance". However, the statement added that no official engagement letter issued by Pincon in favour of the firm or the writ petitioner could be produced or is available.
Mr. Debasis Roy, learned advocate for the petitioner submitted that the show cause notice could not have been issued when the very basis of initiating proceedings against the writ petitioner was awaiting adjudication before this court. He also contended that after the extensive search and absence of any material against the writ petitioner, the articles ought to have been returned to him. In any event, as an interim measure the court could consider retention of the articles by the Enforcement Directorate but the show cause not to be proceeded with.
On the other hand Mr. Trivedi, learned Deputy Solicitor General submitted that issuance of the said show cause was part of the investigation process. The issuance of notice under Section 8 of the P.M.L. Act was routine. Retention of the seized articles had to be justified by the authority by a decision after receiving a response from the noticee. He submitted that the court should not interfere with this routine procedure.
Secondly, he submitted that his client has not been given adequate notice of this application. It was 4 served on his client late in the evening yesterday and that he was not in a position to obtain proper instructions in the matter.
As far as the second submission of Mr. Trivedi is concerned, the records would speak for themselves. He has been able to adequately take the court through the records of the proceedings, namely the initial orders passed by this court, the order of the Supreme Court, the said show cause notice and the reasons in support thereof. We are unable to understand how instructions could improve the documentary records.
After having considered the above submissions of learned counsel for the parties we pass the following order:
Let affidavits be exchanged in the writ application as well as in the connected application according to the following direction:
Affidavit in opposition be filed by 18th May, 2023. Affidavit in reply by 9th June, 2023.
List the writ along with the connected application on 12th June, 2023.
In the meantime the petitioner shall file a reply to the show cause notice without prejudice to his rights and contentions. The adjudicating authority under the P.M.L. Act may proceed to adjudicate whether to retain the articles or not but keep the adjudication in a sealed cover and not communicate the same pending a decision in this writ application. This is so because the 5 validity of the whole action of the Enforcement Directorate is under challenge in the writ and prima facie only a receipt of Rs. 83 lacs by the petitioner and Rs. 23 lacs by his firm from Pincon is on record. The petitioner claims it as professional receipt.
The seized sealed articles shall be counter-signed by the writ petitioner and kept with the Enforcement Directorate for the time being.
(I.P. MUKERJI, J.) (BISWAROOP CHOWDHURY, J.)