Supreme Court Reserves Orders On Plea By Abhishek Banerjee, Wife Challenging ED Summons In Coal Scam Case

The Supreme Court today reserved verdict on a plea filed by TMC MP Abhishek Banerjee and his wife-Rujira Banerjee challenging Enforcement Directorate's summons in relation to a coal scam case. The duo, which claimed Calcutta to be its ordinary place of residence, challenged the ED summons insofar as they required attendance at New Delhi.A bench of Justices Bela M Trivedi and Satish Chandra Sharma was dealing with two petitions - one, filed by Abhishek Banerjee and his wife-Rujira, and second, filed by ED against Banerjee's assistant Sumit Roy.Senior Advocate Kapil Sibal led arguments for Abhishek Banerjee, and Rujira Banerjee was represented by Senior Advocates Dr Abhishek Manu Singhvi and Gopal Sankaranarayanan. Insofar as ED is concerned, submissions were made by Additional Solicitor General SV Raju and Advocate Zoheb Hossain.An account of previous hearings can be read here.During today's hearing, Hossain argued that Section 50 PMLA is not pari materia to Section 160 CrPC and up till arrest, provisions of PMLA are to hold the field if there is inconsistency with any other law.Contrasting the provisions, Hossain submitted that Section 50 PMLA does not have the limitations contained in Section 160 CrPC (such as on territorial jurisdiction) and while only witnesses can be called under Section 160 CrPC, anyone can be summoned under Section 50 PMLA."It does not come hedged with limitations in S.160. S.50 being a special provision will prevail. Not only because of Sections 65 and 71 PMLA, but also Sections 4,5 of CrPC", he said.In support, Hossain cited the decision in CBI v. State of Rajasthan, where as per him, a similar issue was raised and the Supreme Court took the view that CrPC was ousted, and special provisions of Foreign Exchange Regulation Act were to apply.On facts of the present case, the counsel claimed that proceeds of crime were transferred to Delhi, and that also gave jurisdiction to ED at Delhi: "In our counter, we have stated that Rs.168 crores were transferred to Delhi and overseas...Transfer of proceeds of crime to a particular place also assumes jurisdiction...(therefore) Delhi assumes jurisdiction".When Sibal took to rejoinder submissions, he urged that ED did not address the primary issue that PMLA does not provide any "procedure" for summoning and hence CrPC provisions shall apply.Countering Hossain, the senior counsel cited the decision in Nandini Satpathy v. PL Dani and said that Section 160 CrPC applies to both witnesses as well as accused.Insofar as the ED relied heavily upon the decision in Vijay Madanlal Choudhary (VMC), Sibal claimed that the observations in VMC were not being contested in the present case. If there is inconsistency between PMLA and CrPC provisions, the special law will prevail and there was no dispute in that. The only issue was that PMLA does not stipulate a procedure for summons and as such, there is no inconsistency with CrPC."I am not disputing any of this. What I am saying is how is interrogating me in Calcutta inconsistent with...they have not answered the issue of territorial jurisdiction under S.50(1) PMLA. VMC is not some appellation in the sky!" Sibal said.So far as ASG Raju mentioned during the last hearing that Abhishek Banerjee suppressed his Delhi address, which gave jurisdiction to ED even if CrPC provisions were to apply, Sibal argued that the same was a "Member of Parliament's" address, which is different from actual residence."My ld. friend pointed out that in a letterhead, my MP address is given...residence can't be determined by MP residence. All summons have been sent to me in Calcutta. MPs go for the session and come back. Every summon sent in Calcutta. Suddenly they find that I reside in Delhi", Sibal said.The senior counsel also argued that ED's stance was not clear, inasmuch as it was going back and forth on whether or not CrPC provisions were to apply."Why are they inviting concept of residence from CrPC when they say CrPC does not apply? They are now using CrPC which they say can't be used prior to arrest."Contesting the agency's reliance on CBI v. State of Rajasthan, Sibal also urged that in FERA, unlike CrPC, there is in fact an inconsistent provision (Section 40). As such, the decision was of no help to ED.He concluded with the following remarks,"They have not answered basic question what is the prejudice caused to them for interrogating me in Calcutta. They haven't been able to show. They say I'm not accused. If they want information, they can come and ask. Already interrogated me in Calcutta...Procedure can't be will of authority. A special statute which does not have procedure is "procedure established by law" under Article 21 according to them. How power to summons includes power to summon anywhere - is not answered. This is a matter where ED is using a procedure inconsistent with Article 21 and CrPC. This summons shall be struck down."Supplementing Sibal, Singhvi addressed the court on behalf of Rujira Banerjee and said that if...

Supreme Court Reserves Orders On Plea By Abhishek Banerjee, Wife Challenging ED Summons In Coal Scam Case

Debby Jain

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