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A petition in the Bombay High Court states that there is a lack of transparency in the way the Enforcement Directorate (ED) functions. The plea urges for directions that all ED Case Information Reports (ECIRs) and orders refusing the registration of ECIR are displayed on the official website of the ED.
On the basis of August 16 representation sent to ED, the Petitioner and Advocate Ghanshyam Upadhyay states that no communication channel is available for common people to assist the agency with information especially "when nationalist/ patriotic citizens want to approach ED to provide valuable inputs."
The plea adds that when any investigating agency registers a “scheduled offence” (as defined under PMLA), such agency should be under an obligation under Section 39 of the CrPC, read with Section 176 of the IPC, to forward a copy of the FIR to the ED. This is so as to enable the ED to perform its own statutory obligation of examining such case to decide whether an ECIR would be registered for the commencement of an investigation by the ED.
"In each case relating to ‘scheduled offence’ referred by any investigating agency wherein ED decides not to register ECIR, it shall record reasons thereof. All ECIRs and orders refusing registration of ECIR shall be displayed on the official website of ED."
reads the plea.
Upadhyay has further requested the Court to direct that adjudication proceedings, as well as orders relating to attached properties, should be displayed on the official website of the ED.
The plea states that under the PMLA, there is no right conferred on citizens on the lines of Section 190 or Section 156(3) of the CrPC to approach any Court for taking cognizance or for ordering the registration of a crime.
"If any citizen is victim of money laundering, he can very well approach the ordinary criminal court with regard to ‘scheduled offence' but no remedy is provided to him to insist for adding the offence of Money Laundering or to seek attachment of properties of the accused person."
the petitions says.
Citing a September 2016 judgment in the Youth Bar Association case, the plea states that it was directed that all investigating agencies including the Central Bureau of Investigation (CBI) should display the FIR on their official website within 24 hours.
However, ECIRs registered by ED are not being uploaded on its official website, the petitioner says.
The plea states that a August 16 representation to ED was sent by a group of public spirited lawyers who have organized themselves as “Hindu Vidhidnya Parishad”
The aforesaid representation referred to letters submitted to ED’s office about Nirav Modi scam that resulted in a loss of over Rs. 13,000 Crores to Punjab National Bank.
The petitioner claims to have obtained copies of such previous letters and was "shocked to realize that though there was a serious effort to provide valuable inputs to ED way back since February 2018, none of the ED officials have bothered to respond or act on the said letters."
"The conduct of ED shows a contemptuous attitude in obtaining assistance from informed or public spirited citizens in its investigation. It is necessary to state that till date the 'trail' of money has not been traced by ED and the acts and actions of ED are confined only to 'attaching' domestic assets of Nirav Modi and his associates, most of which actually constitute security for secured loans of the Nirav Modi Group."
reads the plea.
The plea further avers that out of a few thousand “scheduled offences” that might have arisen in the year 2020 itself, nobody knows as to how the ED chooses its targets and what is the basis of picking up a particular case for investigation or otherwise.
It has cited examples of the persons involved in HDIL/PMC Bank Scam and how the ones arrested by ED succeeded in obtaining bail only for the reason that the ED failed to file a charge-sheet in the stipulated time frame of 60 days.
"If ED is created for public good, it is quite necessary that people feel proud about such prime agency and would come forward as whistleblowers, informers, witnesses etc. with a hope and confidence that their contributions would ultimately add to nation’s exchequer and augment the wealth of India by confiscation of every single property that represents “proceeds of crime”, reads the plea.