You are not above law: Delhi court slams Enforcement Directorate

The Enforcement Directorate (ED) is bound by rule of law and cannot act mighty against ordinary citizens, a Delhi court observed as it admonished the probe agency for recording statements of doctors of private hospitals under Section 50 of the Prevention of Money Laundering Act, 2002 (PMLA) to oppose extension of interim bail of an accused..Special Judge (PC Act) Vishal Gogne of the Rouse Avenue Courts said that there was absolutely no justification for the ED to subject ordinary citizens (doctors) to the stringent process of Section 50 PMLA without an iota of allegation of nexus of the doctors with the allegations of money laundering against the accused.The Court said that in a democracy like India, the citizens possess rights while the State has certain duties and this fundamental relationship cannot be inverted to invoke an authoritarian argument that the State has certain rights against the citizens who are expected to reciprocate by submission through their duties.“Not only would the acceptance of such an argument be an inversion of the social contract on which every liberal democracy is based but also a violation of the constitutional scheme and constitutional morality. As an agency answerable to the law and the courts, the ED cannot arrogate powers unto itself. While a government agency too is expected to be a votary of civil rights, the court will certainly not remain amiss in highlighting and rejecting an entirely high handed act of the ED,” Judge Gogne said.The judge warned that strong leaders, laws and agencies generally come back to bite the very citizens they vow to protect and that after the “masculinity of the law has been expressed against the stated targets”, these laws are "invariably alleged to have been employed against the average citizens".“The use of section 50 [PMLA] by the ED against the law-abiding doctors of private hospitals is a contemporary contribution to this perception. Such negation of the intended purpose of strict legislations is required to be avoided by the investigation agencies and consciously monitored by the courts.”The rights of the citizens against being subjected to invalid processes completely trump the over reach of the law by ED, the Court said..These stern observations were made by the Court in an order passed on April 30 in the plea filed by businessman Amit Katyal seeking extension of the interim bail granted to him.Katyal stands accused of transacting with the family members of former railways minister Lalu Prasad Yadav in connection with land for railway jobs scam.He had undergone a surgery for bariatric procedure at Medanta Hospital, Gurgaon on April 9.Katyal’s lawyers raised a strong objection to ED recording statements of Apollo and Medanta Hospital doctors who were treating him after being granted interim bail on February 5, 2024.It was argued that this was not only in violation of the permissible action under Section 50 PMLA but also an intrusion in the privacy of the medical treatment which was an accused’s fundamental right..While the Court denied extension of interim bail to Katyal, it dealt strongly with ED on its conduct..Judge Gogne said that Section 50 PMLA has no application in verification of medical or other similar documents in proceedings for interim bail.“The court is thus entirely unable to agree with the submission of the Ld. ASG that section 50(2) is wide enough to include any proceedings which may occur during the course of a trial before the Special Court dealing with PMLA matters… The right of the ED to reply or oppose an application from the accused which is limited to a prayer for interim bail on medical grounds cannot be considered as an investigation or proceeding related to the proceeds of crime and is therefore beyond the explicit framework of section 50(2) PMLA.”The Court also found it interesting that the ED took care to avoid examining any of the doctors from the government hospitals under section 50 PMLA.“Evidently, caution was exercised by not invoking judicial proceedings under section 50 against government servants. It does unavoidably beg the question as to why the private practitioners of Apollo hospital and Medanta Hospital were put to the yoke of section 50, with all the associated menace of sections 193 and 228 IPC. Probably being aware of the non-tenability of the use of section 50, the ED chose to play it safe qua the government doctors but readily brought the private doctors under the big shadow of section 50,” the Court said. .On the alleged violation of right to privacy of Katyal, the Court did not render a conclusive finding but said that the actions of the ED would have been more appropriately protected if the verification of the medical records of the accused had taken place entirely under the court directions.Finally, the Court directed a copy of the order to be sent for information and sensitization to the Director of ED, Chairperson of National Medical Commission, the Medical Superintendents of RML Hospital, DDU Hospital Apollo Hospital, Sarita Vihar and Medanta Hospital. .Senior Advocate Vikas Pahwa argued the case for Amit Katyal.Additional Solicitor General (ASG) SV Raju argued for the ED.