ED’s Power To Issue Summons Under Section 50 PMLA Does Not Include Power To Arrest: Delhi High Court

The Delhi High Court on Thursday ruled that the power of the Enforcement Directorate to issue summons to a person under Section 50 of PMLA does not include the power to arrest.

Justice Anup Jairam Bhambhani said that the power to arrest is “conspicuously absent” in section 50 of the PMLA which empowers ED officers to arrest any person, subject to satisfying the conditions mentioned therein.

“The power under section 50 of the PMLA to issue summons to a person and to require the production of documents and record statements, which is akin to the powers of a civil court, is different and distinct from the power under section 19 to arrest a person,” the court said.

It added, “Though section 19 of the PMLA empowers designated officers of the ED to arrest any person, subject to satisfying the conditions mentioned in that provision, it is clear that the power to arrest does not reside in section 50 nor does it arise as a natural corollary of summons issued under section 50.”

Justice Bhambhani said that Section 19 and 50 of PMLA are two separate and distinct provisions and the exercise of powers under one cannot be restrained on the apprehension that it could lead to the exercise of powers under the other.

“If that is permitted, any and every person summonsed under section 50 of the PMLA, to produce documents or give a statement on oath, could resist such summons expressing mere apprehension that he may face arrest at the hands of the ED, in exercise of the powers under section 19 of the PMLA. Such a position would be antithetic to the statutory scheme,” the court said.

The court made the observations while dismissing a plea moved by one Ashish Mittal seeking quashing of an ECIR registered by ED in 2020. Mittal also sought stay of all the proceedings emanating from the said ECIR.

This was after Mittal was issued summons requiring him to appear before ED on August 21. It was his case that he had a strong apprehension that he will be illegally detained or arrested and will be made a scapegoat. He submitted that he was not supplies with a copy of the ECIR.

Noting that the ECIR was not before the court nor Mittal was entitled as per law to be given a copy of the same, Justice Bhambhani said that there was obviously no way that the grounds on which quashing was sought could be assessed and evaluated.

“Based on the provisions and precedents referred-to above; on a bare perusal of section 50 of the PMLA under which summons have been issued to the petitioner; and the fact that the petitioner is not an accused in the proceeding under the PMLA, this court is not persuaded to agree with the petitioner‟s apprehension that he may be subject to coercive measures,” the court said.

It added that if it is true that Mittal is remediless in relation to his grievance, a writ petition invoking the extraordinary plenary jurisdiction under Article 226 of the Constitution of India would always lie.

“This court would hasten to clarify that it is not the purport of the present decision that the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, is per-se barred from entertaining a petition by a person who is not a named accused in a scheduled offence, or in a prosecution compliant arising from an ECIR,” the court said.

Also Read: Mere Non-Cooperation To ED Summons Not A Ground For Arrest Under PMLA; ED Can't Expect Admission Of Guilt From Person Summoned : Supreme Court

Counsel for Petitioner: Mr. Mohit Mathur, Senior Advocate with Mr. Shikhar Sharma, Mr. Mayank Sharma and Mr. Harsh Gautam, Advocates.

Counsel for Respondents: Mr. Anupam S. Sharma, Special Counsel with Mr. Prakarsh Airan, Ms. Harpreet Kalsi, Mr. Ripudaman Sharma, Mr. Abhishek Batra and Mr. Vashisht Rao, Advocates for Respondents/ED.

Title: ASHISH MITTAL v. DIRECTORATE OF ENFORCEMENT & ANR.

Citation: 2023 LiveLaw (Del) 992

Click Here To Read Order