It added that it did not get his custody in the initial 15 days after arrest due to his hospitalisation, and therefore those 15 days would be excluded from the legal requirement for custody under the PMLA.
Published Aug 03, 2023 | 6:18 PM ⚊ Updated Aug 07, 2023 | 1:36 PM
Supreme Court of India. (Wikimedia Commons)
The Enforcement Directorate on Wednesday, 2 August, told the Supreme Court that it was its “duty” to seek the custody of Tamil Nadu Minister V Senthil Balaji and interrogate him to unearth the cash-for-jobs scam.
It added that it did not get his custody in the initial 15 days after arrest due to his hospitalisation, and therefore those 15 days would be treated as excluded from the legal requirement for custody under the Prevention of Money Laundering Act.
Asserting its “duty” to subject Senthil Balaji to custodial interrogation as it is entitled under the anti-money-laundering law, ED told a bench of Justice AS Bopanna and Justice MM Sundresh that it was prevented from taking custody of Senthil Balaji because of a judicial order.
The ED’s emphasis on “duty” to seek custody of Senthil Balaji for interrogation was in response to senior advocate Mukul Rohatgi’s argument that the Central agency had no vested right to seek the custody of the accused, more so after the passing of 15 days from the date of his arrest.
Rohatgi, who appeared for Senthil Balaji on Tuesday and Wednesday, said that there could not be any exclusion of these 15 days even if the accused, being sought for custodial interrogation, was hospitalised for coronary surgery during the initial 15 days after his arrest.
He said that the hospitalisation of Senthil Balaji was on the strength of the high court, and the ED was permitted to interrogate him with the consent of the doctors attending to him.
On the conclusion of the arguments by both the petitioners — Senthil Balaji and his wife Megala — and the ED, the court reserved the order. It did not pass any interim order, as sought by the ED in the interregnum.
Senthil Balaji contended that the ED was barred from seeking his custody after the expiry of 15 days from the date of his arrest on June 14.
Referring to the “confusion” in the judgment of the high courts and the “conflicting” judgments of the top court, Rohatgi sought the reference of the issue to a larger bench for clarity.
In his argument that was spread nearly over the day, the Solicitor General cited several judgments of the top court to impress upon the bench that 15 days from the day of arrest during which ED is entitled to seek custody have to be excluded, if accused is not available to it for reasons beyond its control.
Referring to the provisions of the Code of Criminal Procedure, which were cited by Senthil Balaji to argue that after the expiry of the initial 15 days from the date of arrest, the ED could not seek his arrest as under the anti-money-laundering law, ED officials were not police officers in charge of a police station.
Solicitor General Mehta argued that Section 167 of the Code of Criminal Procedure cannot be read selectively to suit the accused while denying the ED access to the accused. Section 167 of the Code of Criminal Procedure provides for the procedure to be followed when an investigation cannot be completed in twenty-four hours. He said that it cannot be that when it comes to bail or default bail, the accused can invoke the Code of Criminal Procedure but shut it when it does not suit him.
The top court was hearing a challenge to the Madras High Court decision upholding the arrest of Senthil Balaji and subsequently magistrate court remanding him to judicial custody.
The high court order upholding the arrest of the minister, and also holding valid his subsequent remand in judicial custody came following the decision of a third judge, Justice CV Karthikeyan, holding that the accused had no right to frustrate the investigation.
The matter travelled to Justice CV Karthikeyan following a split verdict on 4 July by a division bench of Madras High Court comprising Justice Nisha Banu and Justice D Bharatha.
Justice Nisha Banu held that the Habeas Corpus plea filed (by Balaji’s wife Megala) for Senthil Balaji’s release is maintainable and should be allowed. Justice Banu further said ED is not entitled to get custody of Senthil Balaji.
However, Justice D Bharatha Chakravarthy said the habeas corpus plea was not maintainable after the remand order had been passed. He said that no case was made out to show that Balaji’s remand was illegal. Justice Chakaravarthy has also said that the period of Balaji’s stay at the hospital should be excluded from the ED’s custody period.
Senthil Balaji was arrested by the Directorate of Enforcement on 14 June in an alleged cash-for-jobs scam when he was the transport minister (2011-2015) in the government of late Tamil Nadu chief minister J Jayalalithaa.
The ED arrested Senthil Balaji in connection with a money-laundering case rooted in the scam that took place when Senthil Balaji was the transport minister in the AIADMK government. He crossed over to the now-ruling DMK in 2018.
The high court had permitted Senthil Balaji to be shifted to a private hospital for heart surgery and restricted his interrogation in the hospital.
Senthil Balaji was operated for the blockages of three coronary arteries at a local private hospital in Chennai.
