BREAKING - Madras High Court Delivers Split Verdict In Habeas Corpus Plea By Senthil Balaji's Family Against His Arrest By ED

The bench of Justice J Nisha Banu and Justice Bharatha Chakravarthy said that the matter will now be placed before the Chief Justice for further orders.

Justice Nisha Banu observed that the Habeas Corpus petition is maintainable and that the Enforcement Directorate is not entrusted with the powers to seek police custody under the Prevention of Money Laundering Act. She also dismissed the application filed by the Enforcement Directorate seeking to exclude the period of treatment undergone by Balaji while calculating the period for custodial interrogation.

Differing from this opinion, Justice Bharatha Chakravarthy held that the Habeas Corpus Petition is not maintainable. He observed that normally HCP is not maintainable unless it is shown that the arrest and detention is illegal. He added 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. 

Justice Chakravarthy further observed that it was in the interest of the detenue that he has not been in ED's custody for even a day as he has been undergoing treatment from the day of the arrest. Thus, he found it fit to exclude the period of treatment undergone by Balaji while calculating the period for custodial interrogation. In this regard, he ordered that the period from June 14th to the date when he is discharged from the hospital shall be excluded.

Senthil Balaji’s wife Megala had filed the habeas corpus petition against his arrest by the Enforcement Directorate on June 14th. Earlier, the court had denied him interim bail but allowed the Minister to be shifted to Kauvery Hospital for treatment.

Senior Counsels NR Elango and Mukul Rohatgi, appearing for Megala had contended that the ED had violated Balaji’s fundamental and statutory rights. It was submitted that there was a violation of Section 41 CrPC and Article 22 of the Constitution by the central agency. The family had also contended that the remand order passed by the Principal Session Court, Chennai was a mechanical one, and thus, the Habeas Corpus petition was maintainable. It was also submitted that the ED was bound to follow the procedural laws as per decisions of the Supreme Court.

It was also argued that since the Prevention of Money Laundering Act did not give the ED powers of police, the ED could not seek for a police custody and in that regard, the order of Sessions court granting them custody for 8 days was also improper.

Solicitor General Tushar Mehta, along with Additional Solicitor General ARL Sundaresan and Special Prosecutor N Ramesh, on the other hand argued against the maintainability of the Habeas Corpus petition. It was submitted that since the trial court had not held the custody to be illegal, the High Court could not interfere in the order by was of a habeas corpus petition. It was argued that though executive actions can be challenged when they take away fundamental rights, in this case, the Sessions Court, after considering all the matters, had passed the orders and thus it was not a mechanical one warranting interference.

On Megala’s claims that the Minister was never informed about the grounds of arrest and thus procedures were not followed, the ED argued that they had served a Punchnama which the Minister refused to accept. The ED also argued that even the Sessions Judge had informed Balaji about the reasons for his arrest before passing the remand order which was on the same day.

The ED had also sought for exclusion of the period of treatment while calculating the period for custodial interrogation on the ground that ED could not interrogate Balaji during this period. To this, Balaji’s family had contended that there was no legal provision for the same and that once the period of 15 days is over, it could not be extended in any event.

Case Title: Megala v. State

Citation: 2023 LiveLaw (Mad) 184

Case No: HCP 1021 of 2023