A Delhi court has pulled up the Enforcement Directorate for using the stringent PMLA law to record the statements of doctors treating an accused in a money laundering case, observing that history teaches that strong leaders, laws and agencies generally come back to bite the very citizens they vow to protect. Special Judge Vishal Gogne made the observation while deciding an application moved by Amit Katyal, seeking extension of his interim bail granted on February 5 on medical grounds in a money laundering case linked to the railways land-for-jobs scam.
The judge declined the extension of the interim bail on April 30, noting that Katyal was “manifestly on the road to recovery and can follow the prescribed lifestyle within jail premises.”
However, the judge noted that the objection raised by senior advocate Vikas Pahwa, appearing for Katyal, to the use of section 50 of the PMLA (Prevention of Money Laundering Act) by the ED in recording the statements of doctors whom the accused was consulting at Apollo Hospital, Delhi, and Medanta Hospital, Gurugram, after getting interim bail.
The judge said there was absolutely no justification for the ED to subject an ordinary citizen to the “stringent process of section 50” without an iota of allegation of nexus of the doctors with the accused.
“If there are any lessons to be learnt from history, it would be observed that strong leaders, laws and agencies generally come back to bite the very citizens they vow to protect. After the masculinity of the law has been expressed against the stated targets, such laws are invariably alleged to have been employed against average citizens. The use of section 50 by the ED against the law abiding doctors of private hospitals is a contemporary contribution to this perception,” the judge said.
He said such negation of the intended purpose of strict legislations was required to be avoided by probe agencies and consciously monitored by courts.
During the proceedings, Pahwa said the process was not only a violation of permissible action under section 50 but also an intrusion into the privacy of medical treatment which was a fundamental right.
He claimed “concerted effort” by the ED to bring the weight of its authority upon medical practitioners resulted in reticence on part of the doctors at the Apollo Hospital in treating the accused. The accused was ultimately treated at Medanta Hospital.
Accepting Pahwa’s submission, the judge said, “By no stretch of interpretation can the expanded ambit of section 50 be considered to include recording of statements of citizens, including doctors who may have been associated with the accused ‘de hors’ (not including) criminal activity relating to the proceeds of crime”.
The judge said the powers of the ED under section 50 PMLA does not extend to private (including health) affairs of the accused or his vocation in life as long as these do not have incriminatory connect with the allegations under section 3 read with section 4 PMLA.
It also does not extend to the performance of vocational functions or duties by private persons or professionals like doctors who have not been alleged to have been involved in any activity linked to the accused, the judge said.
The court termed as “impermissible” the ED using section 50 to record statements of doctors at Apollo and Medanta Hospitals who were treating the accused.
“The ED, as an investigative agency, is bound by the rule of law and cannot be seen as acting mighty against the ordinary citizen who is not even a suspect,” the judge said.
He said it was a startling proposition for any citizen and that too doctors who are mostly in aid of the courts in various litigations.
“The citizens possess rights while the state has certain duties. This fundamental relationship cannot be inverted to invoke an authoritarian argument that the State has certain rights against citizens who are expected to reciprocate by submission through their duties,” the judge said.
He said 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,” the judge said.
He said the rights of the citizens against being subjected to invalid processes completely trump the over reach of the law by ED.
Katyal had sought extension of interim bail by two more months, claiming he had recently undergone a surgery and the jail infrastructure and environment would not permit the optimum recuperation.
“Moreover, interim bail is not a substitute for regular bail and cannot be extended indefinitely. The accused must, therefore, be required to surrender to judicial custody,” the judge said.
According to the ED, the accused operated companies as a front for purchasing immovable properties at under valued rates on behalf of other accused persons, including RJD leader Lalu Prasad Yadav, his family members and associates in lieu of wrongful appointment of various persons to Group D posts in the Indian Railways during Yadav’s tenure as Railway Minister.
These companies were then transferred to the family members of Lalu Prasad Yadav at undervalued shares, the ED alleged.
