Can't Say Mamata Banerjee Took Away Only TMC's Confidential Files Amidst I-PAC Raid : ED Tells Supreme Court

In its plea assailing West Bengal authorities' interference with its raid at IPAC office, the Enforcement Directorate has filed a rejoinder affidavit opposing West Bengal government's claim that Chief Minister Mamata Banerjee took away material from the search premises without the agency's objection.

The affidavit further says that once the material were taken away from the premises being searched, it was difficult to determine whether the material taken away was only confidential material of Trinamool Congress or also pertained to the offence being investigated by ED.

On maintainability of its writ petition, the ED has said that its petition canvasses the fundamental rights of 2 categories of persons - (i) the general public (having fundamental right to public order and rule of law) and (ii) officers and functionaries of ED (having fundamental right to personal liberty and to move freely in discharge of their duties).

The ED states that every citizen of the country has a fundamental right to proper implementation of law on money laundering, as such, any obstruction to a statutory authority lawfully implementing PMLA provisions results in the violation of rule of law and citizens' fundamental rights under Article 14. In this regard, it further says that the victim of the alleged laundering of proceeds of illegal mining in the present case is the general public, which has a fundamental right to fair investigation.

With regard to fundamental rights of ED officers, the rejoinder says,

"Acts of intimidation, use of force, wrongful confinement of the officer and abuse of state machinery to interdict the official from freely going to all places which are legally permissible and taking all legally permissible actions, violates the fundamental right of such an official."

The ED further claims that the respondents' objection to maintainability of its petition does not survive in view of the Court's earlier order issuing notice and staying further proceedings against ED officials, when it was observed that non-interference may lead to a situation of lawlessness.

On the respondents' claim that the case should go under Article 131 of the Constitution, since there is a dispute between the Centre and a State government, the ED disagreed, saying that the matter does not pertain to federal relations. Rather, it is seeking an FIR against the "blatant abuse of power" by state functionaries and commission of offenses by them.

The ED further argues that an accused (respondents in this case) has no role prior to registration of an FIR. An accused is not required to be heard prior to the registration of FIR or even at the stage of investigation, it claims, based on the decision in Union of India v. WN Chadha and Anju Chaudhary v. State of UP.

It is also ED's contention that at the present stage, since it is not seeking final adjudication of its factual averments, but rather registration of FIR and investigation, the only thing required to be considered is whether the allegations, when accepted at face value, disclose a cognizable offense.

The agency further contested the respondents' justification of their interference with the IPAC search on the basis of information that armed persons had entered the premises impersonating as central agency officers. Calling the same a "camouflage", it further claims that its officials duly identified themselves by showing their IDs and search authorization. Yet, the state police intentionally aided and assisted the State Chief Minister (Mamata Banerjee) in entering a premise where active statutory search was ongoing. The ED further added that "theft" of incriminating material was committed.

The ED has also countered the respondents' claim that Mamata Banerjee requested the ED officials to enter the premises and took away digital devices and documents without objection. "Nothing can be farther than the truth...the ED had no option but to wind up the search so as to avoid physical confrontation between security agencies", it says.

The affidavit adds, "The manner of entry constituted a clear show of force and numerical strength, during which documents and incriminating material were forcibly taken over and removed from the premises, despite repeated requests by ED officers to refrain from doing so. No investigation agency would ordinarily permit a third person to enter into premises of an ongoing search and take away materials."

The ED also seeks to justify a panchnama where it was recorded that search was conducted peacefully by saying that it was coerced. "[It] is to be understood as signifying that the ED officers did not employ any force or threat during the course of the proceedings. However, the said panchnama was recorded under duress and in a coercive atmosphere, owing to the presence of senior police officers of the Kolkata police at the premises."

It is further alleged that the affidavits of certain respondents are silent on the files taken by CM Mamata Banerjee, demonstrating bias, and there are discrepancies in the factual averments.