Recruitment scam: Calcutta High Court cautions ED not to arrest Abhishek Banerjee without following Section 19 PMLA

The Calcutta High Court has cautioned the Enforcement Directorate (ED) against taking any coercive steps against Trinamool Congress (TMC) leader Abhishek Banerjee in connection with the primary teachers recruitment scam without complying with Section 19 of the Prevention of Money Laundering Act (PMLA). [Abhishek Banerjee v. The Directorate of Enforcement].The Court, however, rejected Banerjee's plea to quash the ED complaint filed against him in the case, opining that this plea was premature..The order was passed by Justice Tirthankar Ghosh on Friday after he noted that the ED only presented a statement by a co-accused to link Banerjee to the case. Apart from this aspect which was part of the ED's fourth supplementary complaint, there was no material presented to connect Banerjee with the scam, the judge found. "Having regard to the same I direct that no coercive measures would be taken against the petitioner by the E.D. without adhering to Section 19 of the PMLA, 2002 as explained in paragraph 39 of the judgment of the Hon’ble Supreme Court in V. Senthil Balaji –Vs. – State," the Court ordered. Section 19 of the PMLA details the circumstances in which a person can be arrested in a money laundering case..Among other factors, the arresting officer must have a reason to believe that a person is guilty of a PMLA offence and such reasons must be recorded in the arrest order. These grounds of arrest must also be provided to the arrested person. In the Senthil Balaji case, the Supreme Court had also held that any non-compliance with this provision would vitiate the very arrest. .The probe against Banerjee followed an April 13 Calcutta High Court judgment, wherein Justice Abhijit Gangopadhyay directed that a public speech by Banerjee "should also not be outside the investigation (in the recruitment scam) of CBI and if necessary by E.D."That order was passed on a plea filed by the ED seeking protection from action by the State Police against its officers as an accused, Kuntal Ghosh had made some allegations against Banerjee.The ensuing ED probe against Banerjee went through multiple rounds of litigation before the High Court as well as the Supreme Court..The petition decided on Friday by Justice Ghosh concerned Banerjee's challenge to the ED's Case Information Report (ECIR) in the case as well as a summons issued to him earlier this year..Banerjee's lawyers asserted that the ED’s probe was politically motivated, based on guess work and speculation, and triggered only on account of the High Court’s April order. Central Agencies were being misused by the Central government to specifically target and harass Banerjee and his family since they belonged to an opposition political party, it was argued.The ED, however, countered that the ECIR was merely an internal document, which cannot be quashed. It was further submitted that the ED’s power to probe the matter was not dependent on any court order and also alleged that Banerjee was not cooperating with the probe..The Court disposed of Banerjee's plea by directing the ED not to take any coercive steps against Banerjee without complying with Section 19 of PMLA.“Except the statement of Sujay Krishna Bhadra (an accused who is in custody) no materials were produced by E.D. before this Court to relate the petitioner with the ECIR under challenge,” the judge observed in his order. .Senior Advocates, Dr. AM Singhvi, and Kishore Datta, and advocates Sanjay Basu, Soumen Mohanty, Ayan Poddar, Piyush Kumar Ray, Agnish Basu,and Riddhi Jain appeared for Banerjee. Additional Solicitor General SV Raju, and advocates Phiroze Edulji, Samrat Goswami, Zoheb Hossain, Anamika Pandey, Amrita Pandey, and Ghanashyam Pandey represented the ED.Senior Advocate Bikash Ranjan Bhattacharya and advocates Firdous Samim, Gopa Biswas, Payel Shome, Sampriti Saha, Arindam Jana, Sudipta Dasgupta, Bikram Banerjee, Arka Nandy, Sagar Dey, and Sutirtha Nayek appeared for two persons affected by the scam..[Read Judgment]