There will be lawlessness if we don't intervene: Supreme Court in ED v. Mamata Banerjee case, WB CM asked to respond

The Supreme Court on Thursday issued notice to West Bengal Chief Minister (CM) Mamata Banerjee, Director General of Police (DGP) Rajeev Kumar and others on the Enforcement Directorate (ED)'s plea accusing them of obstructing the agency's recent searches at the premises of political consultancy firm I-PAC and the residence of its co-founder Pratik Jain.

A Bench of Justice Prashant Kumar Mishra and Justice Vipul Pancholi also asked Banerjee, Kumar and others to respond to the ED's prayer for a Central Bureau of Investigation (CBI) probe against them.

The Court said the petitions filed by ED have raised serious questions.

"We are of the prima facie view that the present petition has raised a serious issue relating to the investigation by the ED or other central agencies and interference by State agencies. According to us, for adherence of rule of law in country and to allow each organ to function independently, it is necessary to examine the issue so that offenders are not allowed to be protected under the seal of law enforcing agencies of a particular State," the Court observed.

The Court also opined that there would be lawlessness in the country if it does not examine the issues raised by the ED.

“According to us, large questions have been raised and are involved in the present matter which if allowed to remain undecided would further worsen the situation and there will be a situation of lawlessness prevailing in one or other state, considering that different outfits are governing different places," the Bench said.

The Court added that while no central agency has the power to interfere with the election work of any party, political parties cannot interfere with any bona fide investigation of investigating agencies.

Besides the prayer for a CBI probe, the ED has also sought a direction for the return of evidence that CM Banerjee is alleged to have taken from premises linked to I-PAC.

The ED had earlier moved a similar plea before the Calcutta High Court, which adjourned it on Wednesday on a request made by the central agency.

Making a direct intervention in the matter, the Supreme Court today asked Banerjee and others to file their response to the ED's petitions within two weeks.

"In the meanwhile, it is directed that the respondents shall preserve the CCTV cameras and other storage devices containing the footage of both the premises searched and the CCTV cameras and other storage devices containing the footage of near areas," the Bench added.

The Court also stayed the First Information Reports (FIRs) registered by the West Bengal Police against ED officers who had carried out the searches.

The matter will be heard next on February 3.

Last week, Chief Minister Banerjee entered the I-PAC office and the residence of its co-founder while the ED was conducting searches in connection with a money-laundering probe.

Banerjee is alleged to have removed some documents and electronic devices from the premises. She claimed that they contained information pertaining to her political party. I-PAC has been associated with the Trinamool Congress since the 2019 Lok Sabha elections.

On the other hand, ED in a statement said the searches were part of its investigation into a 2020 money-laundering case against businessman Anup Majee, who is accused of coal smuggling.

It said that Banerjee’s interference with its search operations constituted a direct assault on its powers under the PMLA and subverted the rule of law.

However, the TMC alleged that under the pretext of an investigation against I-PAC, the ED had tried to unlawfully gain access to the party’s campaign and political strategy ahead of the upcoming assembly elections in West Bengal. 

The ED on Wednesday told the Calcutta High Court that it had not seized anything during the searches. The statement was made during the hearing of TMC's plea seeking protection of any sensitive political data that the ED may have seized from I-PAC premises.

Arguments today

Before the Supreme Court, Solicitor General (SG) Tushar Mehta submitted that the case reflected a shocking pattern where a statutory authority (Chief Minister Banerjee) barges into premises being searched by a central agency.

"This is something very, very serious. Please take cognizance of what is happening," Mehta said.

Mehta also said that ED intimated local police before the searches and that CM Banerjee took away files from the search site.

"It is an offence of theft. She took a ED officer phone as well. This will only encourage such acts and the central forces will be demoralised. The State will feel they can barge in commit theft and then sit on dharna," he added.

In particular, Mehta sought a direction for the suspension of police officers who had accompanied CM Banerjee when she entered the premises being searched by the ED.

"Let an example be set that officers be placed under suspension and let there be departmental inquiry," the SG added.

Mehta also highlighted the commotion witnessed during last week's hearing of the matter before the Calcutta High Court. The SG alleged that this happened after the head of Trinamool Congress' legal cell asked its members to assemble in the courtroom. The SG also said that Additional Solicitor General (ASG) SV Raju's mic was repeatedly muted during Wednesday's hearing of the matter.

"We approached the HC. Now see what happens when mobocracy overtakes democracy. See what the HC judge observes in the order. It notes huge number of lawyers gathered, creating commotion. She (High Court judge) stated, the environment in court was not conducive for a hearing," Mehta said.

Mehta then informed the Court about the money laundering case being probed by the ED. He said that the State police, as well as the people connected to the premises, were informed in advance about the ED's search operation.

"I don't know what was there to hide that such a drastic step was taken that the Chief Minister herself barged along with the DGP and Commissioner of Police," Mehta said.

Mehta added that the accused then had "courage" to take incriminating material and show it in public.

"Let a message go once and for all," the SG, while seeking the Court's intervention against the CM and police officers in West Bengal.

ASG Raju, appearing for three ED Assistant Directors, Nishant Kumar, Vikram Ahlawat, and Prashant Chandila, submitted that since a cognizable offence has taken place, an FIR must be registered as per the settled law against those who obstructed the ED's search.

"Hearing an accused is unheard of before registering the FIR. This is a case of theft, robbery and dacoity," Raju contended.

Raju also said that the Chief Minister is an accused and the theft was committed in connivance with the DGP of West Bengal.

"Head of police in West Bengal is an accomplice. She is the home minister as well... that is why CBI probe is needed," the ASG said.

However, the Court asked Raju why the High Court should not hear the matter first. In the afternoon session, SG Mehta answered the query.

"Here, ED officers are before you to seek protection of their Article 21 rights ... They were threatened. I am here also for the rights of the victims of money laundering," Mehta said.

Raju also supplemented the submission and cited cases where the Supreme Court has transferred investigations to the CBI.

Raju added that four FIRs have been filed against ED officers by West Bengal police to put pressure on them. However, it was clarified that they have not been named in the FIRs.

Both SG Mehta and ASG Raju prayed for a stay on these FIRs. The Court was also urged to issue a direction for the preservation of the CCTV recordings of the premises searched by the ED.

Senior Advocate Kapil Sibal, representing CM Mamata Banerjee, argued that the matter should be heard by the High Court first where the ED has already filed a plea.

"They are filing parallel proceedings," Sibal said, adding that a hearing was held peacefully on Wednesday before the High Court.

On merits, Sibal said that I-PAC takes care of election campaigning for the Trinamool Congress and it possesses the information concerning the political party. The ED knew about it, he added. He argued that there is a pattern of ED interference in States where elections are scheduled.

"All election data is confidential and it is all kept there. There will be a lot of information on candidates etc. Why was the need to go there in the midst of election? Last statement in the coal scam was recorded on February 24, 2024. What were they doing since then? Once you have information.. how do we fight the election? Chairman (of the political party) has the right to protect it and thus went there," Sibal said.

Sibal argued that Banerjee had gone to the premises only as the Chairman of Trinamool Congress and not the Chief Minister. She took only a laptop and an iPhone that contained the party-related information, the Court was told.

He added that there was no obstruction to the ED's search operation, as revealed by the panchnama signed by the ED.

"It is a blatant lie that all digital devices were taken. See that panchnama also. This is just to create prejudice," Sibal said.

"It [devices] has party material. That is why you [ED] went there. It is a malafide action," Sibal added.

However, the Court remarked that no such data was taken by ED

"If they had any intention to seize your election data..they would have taken it but they did not. You cannot stop us from issuing notice," Justice Mishra said.

In response, Sibal said.

"Of course, we can't. We are only trying to persuade you."

Senior Advocate Abhishek Manu Singhvi, appearing for the State of West Bengal and the State's DGP, also objected to the maintainability of the plea filed by ED under Article 32 of the Constitution.

"If notice is issued it must be made clear that there is strong opposition to the maintainability of this petition. It is only allowed in exceptional circumstances where the ED is completely helpless. I appear for the State of West Bengal and the DGP. I also raise the issue of forum shopping where the prayers are same in HC and SC," he said.

The commotion witnessed in the High Court last week cannot be used to maintain parallel proceedings, Singhvi said.

"Yes, you had an issue on January 9 but that cannot be an excuse to ride two different horses. Sometimes emotions go out of hand and we understand what the court is saying. Relevant test is yesterday," he added, while referring to yesterday's proceedings before the High Court.

At this, the Court said,

"Emotions cannot go out of hand repeatedly."

Continuing with his submissions, Singhvi said the police was intimated about the ED searches hours but the information was not accurate.

"We were only informed by a casual email.. saying 11:30 am. You started searching at 6:45 am," the senior counsel said.

Singhvi also submitted that it was the DGP's duty to accompany the Chief Minister since she is a Z-category protectee.

Senior Advocate Shyam Divan appeared for two other police officers against whom action has been sought by the ED.

[Live updates from hearing]

Along with SG Mehta and ASG Raju, Special Counsel Zoheb Hossain appeared for the Enforcement Directorate.

Senior Advocates Kapil Sibal, Abhishek Manu Singhvi, Shyam Divan, and Kalyan Bandyopadhyay appeared for the respondents.