I-PAC raids: Supreme Court quizzes Bengal govt

The bench also comprising Justice N V Anjaria said that if the allegations are true, “it directly strikes at the rule of law”.

He said this as Senior Advocate Kapil Sibal told the bench that the petition was not maintainable and that the officers could have lodged a police complaint. “Your Lordships are getting upset for no reason … Your Lordships are now assuming that the CM has committed offences,” he said.

“No, we have not,” said Justice Mishra.

“You are,” said Sibal.

“That is the fact,” said Justice Mishra. “How is it a fact? It’s an allegation … Don’t say it’s a fact My Lord,” said Sibal.

“You are right. Don’t mistake us … It is an allegation. Allegation is always based on some facts. If there are no facts, there is no allegation. There has to be some factual foundation for every allegation,” added Justice Mishra.Sibal said: “That is a matter of investigation.”

The senior counsel said that as per section 66 (2) of the Prevention of Money Laundering Act (PMLA), if an offence under any other law comes to the notice of the ED during a probe, it should share the information with the agency concerned, which in the case is state police.

Sibal said that there is a case which had come to the SC in respect of the Karnataka Deputy Chief Minister where during the course of a tax raid, it was found that certain other offences had been committed. Those were then referred to the state agency, he pointed out.

Justice Anjaria said “the questions involved here are far larger … If the allegations are true, then it directly strikes at the rule of law”.

“Why Section 66 PMLA may not apply is … There are two distinct allegations … PMLA allegations which ED is inquiring about. Then the second set of offences … which the petitioners herein are alleging. That (second set) has not been committed in continuation of or while the investigation of PMLA offence was undergoing,” the counsel said.

Sibal argued that even assuming for the sake of argument that the offences were committed, the ED still has no right to file a petition under Article 32 which is available only to citizens to seek enforcement of their fundamental rights. The statutory remedy is that it can be investigated only by the police within whose jurisdiction it was allegedly committed. Any other interpretation will open a pandora’s box, he added.

Justice Mishra asked if the ED officers can’t approach personally under Article 32 and wondered if they cease to be citizens of India merely because they are ED officials.

“Please concentrate on the fundamental right of the officers of the ED qua whom the offence has been committed … Just because they are officers of the ED, they cannot approach under Article 32? Suppose there is no petition of ED and there is only one petition filed by the officers of ED, [then] what way will you deal with that?… Merely because at that point of time they are officers of the ED do they cease to become citizens of India?” Justice Mishra said.

Senior Advocate Kalyan Bandopadhyay, who appeared for CM Mamata Banerjee, said the officers belonged to the Ministry of Revenue, who are posted under the ED and are not per se ED officials. They were performing their official duties and hence cannot invoke Article 32, he said.

Justice Mishra said the problem is that different political parties come to power at the Centre and states and the court is trying to find a solution in case a similar situation emerges in the future with the positions reversed. “The whole difficulty is that now different political parties come to power in different states and Centre. Suppose you come to power at the Centre and the situation is reversed, in some other states they are in power, and some CM of the other side does this … what will be your legal reaction?” Justice Mishra asked.

Bandopadhyay said: “We have to go by law. Finally Your Lordships are the final interpreter of the Constitution.”Senior Advocate A M Singhvi, who appeared for the West Bengal DGP, said there is Article 131 to take care of disputes between the Centre and states. He urged the court to first decide the issue of maintainability of the petition by referring to a larger bench, the question of law whether the Union or its department can invoke the writ jurisdiction in such a situation.

The hearing will resume next month.