M/S Humara India Credit Cooperative Society Lmt. Thru. Its Dir. Dhananjay Subramanium and 3 Others v. the Directorate of Enforcement (Ed) Deptt. of Revenue Thru. Direct. and 3 Others

Allahabad HC5 Nov 2024A482/8822/2024

Case brief

AI extract

What is this about?

Petition under Section 482 Cr.P.C. seeking quashing of search and seizure proceedings pursuant to an ECIR arising from an IPC FIR in which a final report was filed. Maintainability objection raised by ED. Court directed counter affidavit, ordered investigation to continue per law with petitioners' cooperation, and listed the matter.

What the court decided

AI extract

M/S Humara India Credit Cooperative Society Lmt. Thru… — Money Laundering | Allahabad HC (2024)

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Court No. - 11

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Case :- APPLICATION U/S 482 No. - 8822 of 2024

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Applicant :- M/S Humara India Credit Cooperative Society Lmt. Thru. Its Dir. Dhananjay Subramanium And 3 Others Opposite Party :- The Directorate Of Enforcement (Ed) Deptt. Of Revenue Thru. Direct. And 3 Others

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Counsel for Applicant :- Ram Sajan Yadav,Amrendra Nath Tripathi,Nadeem Murtaza,Sameer Singh,Sheeran Mohiuddin Alavi

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Counsel for Opposite Party :- Rohit Tripathi

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Hon'ble Rajesh Singh Chauhan,J.

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Heard Shri Kapil Sibbal, learned Senior Advocate assisted by Shri Nadeem Murtaza, learned counsel for the petitioners and Shri Shashi Prakash Singh, learned Senior Advocate and Additional Solicitor General of India assisted by Shri Rohit Tripathi along with Shri Ankit Khanna, Assistant Legal Advisor, Enforcement Directorate, Kolkata Zonal Office, for the opposite parties.

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Shri Kapil Sibbal, learned Senior Advocate has appeared virtually and Shri Nadeem Murtaza has assisted him physically.

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This Court, on 25.10.2024, had passed following order :-

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".1. Heard Shri Amrendra Nath Tripathi and Shri Nadeem Murtaza, learned counsel for the petitioners and Shri Rohit Tripathi, learned counsel for the Enforcement Directorate.

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2. On 21.10.2024 this Court passed following order :-

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"1. Heard Sri Nadeem Murtza, learned counsel for the applicant, Sri S.P. Singh, learned Senior Advocate and Additional Solicitor General of India assisted by Sri Zulfikar Naqvi holding brief of Sri Rohit Tripathi, learned counsel for the Enforcement Directorate.

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2. Second supplementary affidavit filed by Sri Ram Sajan Yadav is taken on record.

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3. Sri S.P. Singh, learned Senior Advocate has informed that his assisting counsel Sri Rohit Tripathi has not come to the Court today, therefore, he is unable to address the Court in the absence of his assisting counsel. He requested that the matter may be listed on Friday and in the meantime he will seek complete instructions and he will also seek instructions on the

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second supplementary affidavit filed by the learned counsel for the applicant.

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4. Considering the aforesaid request of Sri S.P. Singh, learned Senior Advocate, list/put up on Friday i.e. 25.10.2024 in the list of fresh cases, if possible as a first case."

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3. Today on account of the poor connectivity the Additional Solicitor General of India Shri S.P. Singh, Senior Advocate, could not be connected from Allahabad and Shri Rohit Tripathi has stated that as per specific authorization, this case may be addressed by learned Additional Solicitor General on behalf of the opposite parties and he is only the assisting counsel of learned A.S.G. Shri Tripathi has further submitted that the learned A.S.G. shall address the court on the ground of maintainability as there is specific objection of opposite parties regarding maintainability of this petition.

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4. Shri Amrendra Nath Tripathi, learned counsel for the petitioners has precisely contended, at this stage, that the ECIR in question has been registered on scheduled act which is of Indian Penal Code vide F.I.R. No.142, dated 03.07.2020, registered at Kharbelnagar, Police Station District Bhubaneshwar, Odisha and in the aforesaid F.I.R. final report has been filed and accepted by the learned trial court. Therefore, if the scheduled offence goes, further investigation, etc. pursuant to the ECIR may not carry on.

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5. Since, on account of poor connectivity, the learned Additional Solicitor General of India could not be connected from Allahabad on virtual hearing, therefore, for the aforesaid reason the case is adjourned for today. It is expected that on the next date, if possible, the learned A.S.G. may address the court physically.

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6. Shri Rohit Tripathi has informed the Court that learned A.S.G. may likely to come to Lucknow on 5th November, 2024, therefore, this case may be listed on 5th November, 2024 fixing specific time for this case. Shri Rohit Tripathi has further stated that only the investigation is going on where authorized persons of the society are required to co-operate and till date no authorized person/director of the Society has been arrested, therefore, it may be observed that such investigation may go on.

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7. Considering the submission of learned counsel for the parties, list/put up this case on 5th November, 2024. This matter may be taken up after Lunch at 2.30 P.M.

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8. By the next date of listing, the investigation may go on in the

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same manner as the same is going on today."

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At the very outset, Shri Kapil Sibbal has submitted that as a matter of fact the petitioners have not assailed the ECIR in question but the subsequent proceedings of investigation by the respondents in pursuance thereof, therefore, he has pressed his first prayer vehemently, which reads that "(a) to quash the entire proceedings of search and seizures conducted by Respondents at Petitioners' office in Lucknow and other locations, during 03.07.2024 to 05.07.2024, in pursuance of the Authorization order dated 02.07.2024 issued by respondent no.2".

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Shri Sibbal has also submitted that the Enforcement Case Information Report (ECIR) is dependent upon the scheduled offence bearing F.I.R. No.142, dated 03.07.2020, under Sections 120B, 417 and 420 of IPC, at Police Station - Kharbelnagar, District Bhubneshwar, Odisha and in that scheduled offence Final Report has been filed by the police, therefore, the proceedings in pursuance of the ECIR in question may not continue.

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Shri S.P. Singh, learned Additional Solicitor General of India has vehemently opposed the aforesaid submission by submitting that the present petition, by the petitioners, under Section 482 Cr.P.C. is not maintainable. He has also cited the recent judgment of the Hon'ble Apex Court, reported in (2024) 5 SCC 419 in Re: Directorate of Enforcement Vs. Niraj Tyagi and others with other connected matters , referred in paragraphs 20 and 21, whereby the Hon'ble Apex Court has held that the remedy under Section 482 Cr.P.C., challenging the ECIR, may not be substituted by Section 438 Cr.P.C., inasmuch as, both are the distinct remedies.

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Replying the aforesaid contention, Shri Kapil Sibbal has placed reliance upon the dictum of Hon'ble Apex Court in Re : Pavana Dibbur Vs. Directorate of Enforcement, reported in 2023 SCC Online SC 1586 , referring paragraph 15, which provides that the condition precedent for existence of any proceedings relating to ECIR is a scheduled offence and in the present case the Final Report has been filed in the scheduled offence, therefore, challenging the impugned proceedings the petitioners may very well file the petition under Section 482 Cr.P.C. Shri Sibbal also submitted that the response from the opposite parties may be called on counter affidavit, so that, he could address such response by filing reply thereof.

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Accordingly, let counter affidavit be filed by the opposite parties, within a period of three weeks. In such counter affidavit

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the objection regarding maintainability of the petition may be taken and before proceeding further the objections on maintainability would be decided first.

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Shri S.P. Singh, learned Additional Solicitor General of India has informed the court that the investigation is going on where the authorized persons of the Society are required to co-operate, therefore, the petitioners may be directed to co-operate in the investigation proceedings. Shri Singh has also stated that the authorities are only conducting the investigation, without having any prejudice or malafide intention against the petitioners, who are the Societies and whatever would be required, strictly in terms of law, would be done by the investigating agency, therefore, no order be passed restraining the investigation proceedings.

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Considering the aforesaid submission of learned Additional Solicitor General of India, it is expected that the investigation proceedings against the petitioners may go on, strictly in accordance with law, and the petitioners shall co-operate in the investigation.

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List on 2nd December, 2024, within top 10 cases.

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It is also expected that the copy of counter affidavit may be served upon the learned counsel for the petitioners on or before 26th November, 2024, so that, the copy of rejoinder affidavit, if any, could be filed on or before 30th November, 2024, after supplying advance copy to the learned counsel for the opposite parties.

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(Rajesh Singh Chauhan,J.)

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Order Date :- 5.11.2024 ML/-

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Digitally signed by :- MUNNA LAL High Court of Judicature at Allahabad, Lucknow Bench

M/S Humara India Credit Cooperative Society Lmt. Thru. Its Dir. Dhananjay Subramanium and 3 Others v. the Directorate of Enforcement (Ed) Deptt. of Revenue Thru. Direct. and 3 Others

Case brief

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M/S Humara India Credit Cooperative Society Lmt. Thru. Its Dir. Dhananjay Subramanium and 3 Others v. the Directorate of Enforcement (Ed) Deptt. of Revenue Thru. Direct. and 3 Others

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