The High Court of Madras on Friday ruled that the Enforcement Directorate had the power to seek the custody of Tamil Nadu Electricity Minister Senthil Balaji in connection with the alleged cash-for-job scam.
The order was passed by Justice C.V. Karthikeyan, the third judge assigned by Madras High Court Chief Justice Sanjay Vijaykumar Gangapurwala, after the Division Bench of Justice Nisha Banu and Justice Bharatha Chakravarthy gave a split verdict in the case.
On July 4, the High Court had delivered a split verdict on the Habeas Corpus petition filed by Balaji’s wife and placed the matter before Chief Justice Gangapurwala for further orders.
While Justice Banu rejected the ED’s plea seeking Balaji’s police custody under the Prevention of Money Laundering Act (PMLA), Justice Chakravarthy held that the Habeas Corpus petition was not maintainable.
Ruling that the Habeas Corpus petition was maintainable, Justice Bhanu contended that ED was not entrusted with the powers to seek police custody under PMLA. She further dismissed the ED’s application seeking to exclude the period of treatment undergone by Balaji while calculating the period for custodial interrogation.
Justice Chakravarthy ruled that the Habeas Corpus plea was not maintainable in this case since it did not show that the arrest and detention of Balaji was illegal. The High Court judge further noted that in the present case, the petitioner had not made out a case to hold that the remand was illegal and thus, the HCP was not maintainable.
He further pointed out that since Balaji had been arrested, he has not been in the ED’s custody for even a day as he has been undergoing treatment from the day of the arrest.
The Judge directed that the period of treatment undergone by Balaji, starting from June 14 and till he gets discharged from Kauvery Hospital, should be excluded while calculating the period for custodial interrogation.
Siding with the view endorsed by Justice Chakravarthy, Justice Karthikeyan stated that he could not deny the fact that the respondents (ED) could take custody for further investigation. In this case, the respondents had a right to get custody, he added.
While acceding to the arguments made by Senior Advocate Kapil Sibal that ED officials were not police officers, Justice Karthikeyan noted that the Session Judge had remanded Balaji to judicial custody as per Section 167 CrPC, following which the nomenclature of ‘detenu’ had changed to ‘accused’.
The High Court judge further took in view the fact that Section 167(2) CrPC enabled the remand of the accused to ‘such custody’ as such Magistrate ‘thinks fit’ during the first 15 days and which did not specify whether it has to be a police custody or a judicial custody.
Sibal had placed reliance on the Supreme Court judgement of 2022 in the Vijay Madanlal Choudhary case. Solicitor General Tushar Mehta responded by saying that ED could exercise police powers under Section 19 of the Prevention of Money Laundering Act.
SG Mehta further argued that if the judicial remand order can be passed, custodial interrogation order can also be passed.
Justice Karthikeyan stated that Section 19 of PMLA authorised ED officials to arrest a person if there were reasons to believe that he was guilty of any offence punishable under the Act.
He said once the word punishment was used, then the provisions of CrPC would apply. The person so arrested would have to subjugate himself to the laws of trial and such trial must be under the process of CrPC, he added.
The judge further said that that officers like Director, Deputy Director or Assistant Director or any other authorised officer who were empowered to arrest a person under Section 19 could take advantage of the provisions of CrPC, though they were not ‘police officers,’ as the PMLA said that CrPC would apply to the proceedings under it.
The Vijay Madanlal case held that ED officials were not police officers, but nowhere it was said that they cannot take custody. If investigation required custody, then custody could be sought as a matter of right, it noted.
The judge further said that when arrest was possible, then seeking custody was also possible.
“Detenu has to abide by law. Every accused has a right to prove innocence during trial but no accused has a right to frustrate an inquiry or investigation”, the Court added.
Justice Karthikeyan further rejected the arguments on the illegality of arrest. He said money laundering was not a standalone offence, which did not have any background. The respondents were at his doors since June 13. He should have known why. He cannot claim innocence, noted the judge.
He further ruled that after the remand order was passed by the Sessions Judge, the accused himself applied for bail, which meant that he had submitted himself to the procedure of arrest.
Justice Karthikeyan, while acknowledging that a habeas corpus petition was maintainable after an order of judicial remand in exceptional circumstances, held that no exceptional circumstances were present in the instant case to entertain the petition.
Regarding the exclusion of the period of hospital treatment of Balaji from the first 15 days of remand (the period during which the ED could seek police custody), Justice Karthikeyan endorsed the views expressed by Justice Chakravarathy and ruled that exclusion of time was possible under the law.
The High Court judge, however, left it to the wisdom of the Division Bench to determine the first date of police custody and the days for which the exclusion should be granted.
The High Court judge then ordered to place the habeas corpus petition before the Chief Justice to be placed before the division bench for further procedure.
Justice Karthikeyan mentioned in his order the ‘woes’ of the victims of the scam, stating that they might have mortgaged their homes or sold the household jewellery to pay bribe and secure the much-coveted government jobs.
He said the objective of PMLA was two-fold. One was to determine the trail of the amount and if possible, restoring it to the victims.
The other was punishment for the offence of money laundering.