Unlawful targeting of Jignesh Shah

Sameer Sharma Business/Economy, Top News

Jignesh Shah, the former chairperson of FTIL was taken into custody by the Enforcement Directorate using the PMLA Act to accuse him of payment defaults and conspiring with NSEL on the default crisis.  All this even though ED failed to show any hard evidence on any transactions and money trails linking back to Mr. Shah.

iIgnesh Shah, FTIL, Financial technologies

The ED have been investigating the case for almost 3 years and found no money trail linking directly to him or the group FTIL. ED summoned Mr. Shah for regular questioning in the NSEL case investigations and using the PMLA act arrested him. They justified their actions by saying they had fresh evidence which they failed to produce at the time of the arrest and also claimed noncooperation by Mr. Shah for arresting him again. The PMLA Court agreeing to ED’s plea have given the order of 7 days Non-bailable custody of Jignesh Shah till July 18. ED said that they’ve come across some new leads which can help them get at the root of this case, which in turn will prove him guilty. ED said that they have collected many plenty evidence which will shift the case at their side, but through this custody, they will try and get any other info that Jignesh Shah may not provide otherwise.

When contacted to KTS Tulsi who is the senior advocate in court and was asked for his stance on ED’s new move, he called the whole custody illegal and that goes against the set laws. According to Mr. Tulsi, the custody is illegal because if one will consider the act of 167 custody can be granted for 15 days, so this act of ED is basically a violation of the law.

The stench of conspiracy is visible in this case, as he pointed out and – how one can take someone in custody multiple times with different charge sheets each time of the similar offense?. Having spent 3 years investigating the case and having no head way on resolving the issue, the ED  desperately wants to prove that Jignesh Shah was the one who was running the show irrespective of any strong evidence to support these false allegations and not just that but, they are also not disclosing the fact or the basis in which they have arrested Mr. Shah. While discussing this arrest further Mr. Tulsi also highlighted the fact that may things done by the ED were against the set laws.

The power to file a supplementary chargsheet exists under the Section 173 of the Criminal Procedure Code(CrPC), but that power rests with only the police officials and not the ED. The ED dose not have the power to file a chargesheet  nor can their chargesheet be of relevance because the court cannot take cognizance on the basis of a chargsheet.

The power to file a supplementary chargesheet exists only under Sec. 173(8). There is no analogous provision to Sec.173(8) in chapter 15 of the CrCP which deals with complaints.

The entire approach of the ED based on non-existent powers (in the belief) that they can file subsequent complaints is bad in law

While there is a pending complaint before the Honorable Corut and it has not been dismissed, the ED has no power to file a second/repeated complaints in law. Normally a second complaint is entertained only in exceptional circumstances when the first complaint is dismissed and that too on an incomplete record or on the discovery of new facts. Unless the first complaint is dismissed, the ED cannot file a second complaint and without having any power to do so cannot arrest Mr. Shahs in the guise of further investigations. Furthermore there is no provision under the CrPC or the PMLA, allowing a person to be remanded to ED custody. The entire approach of the ED in summoning Mr.Shah is in utter violation of Sec 50 of the PMLA and ART 21 of the Constitution of India and reeks of conspiracy and actions deemed tainted.

 

 

 

 

Last modified: August 10, 2016

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