‘ED Is Acting Like An Authority Investigating Predicate Offence’: Senior Advocate Kapil Sibal To Madras High Court On Senthil Balaji’s Arrest
Challenging the arrest of Tamil Nadu Minister Senthil Balaji by the Enforcement Directorate, his wife Megala on Tuesday argued that the ED officials do not have powers of a police officer and are acting like an authority investigating the predicate offence. The submissions were made by Senior Advocate Kapil Sibal on Megala's behalf before Justice CV Karthikeyan. Earlier, a division...
Challenging the arrest of Tamil Nadu Minister Senthil Balaji by the Enforcement Directorate, his wife Megala on Tuesday argued that the ED officials do not have powers of a police officer and are acting like an authority investigating the predicate offence.
The submissions were made by Senior Advocate Kapil Sibal on Megala's behalf before Justice CV Karthikeyan. Earlier, a division bench of Justice J. Nisha Banu and Justice D. Bharatha Chakravarthy had given a split verdict in the matter.
“The investigation is to be done by ED. But I need to have that material in my possession which would allow them to investigate. They can't start investigation to know if I have material. That is why there is a difference between the definition of proceeds of crime and money laundering. So, the Officers must have info that I am projecting something as untainted when it is tainted,” Sibal argued.
Sibal submitted there was nothing on record to show that the ED had any such information and argued that the central agency was “acting like an authority investigating the predicate offence”
When Justice Karthikeyan pointed out that the ED can also arrest a person if they have a reason to believe that he is guilty and that it would be based on the authority’s objective satisfaction, Sibal pointed out that such objective satisfaction should also be based on some objective fact.
Arguing that ED does not have powers of police, Sibal said Balaji’s arrest was not one under the Code of Criminal Procedure, but one under a special statute.
“My point is that this is not an arrest under the CrPC. This is an arrest under a special statute. The officers here do not have powers of the police ... Scheme of PMLA is regulatory. SC says that it is not investigation but enquiry. Why such drastic powers are given is because they already have materials in their possession,” Sibal argued.
On the aspect of exclusion of time, Sibal argued that though the Sessions Judge had already granted police custody on June 16, the ED had filed a memo saying that they could not execute the custody. He added that the ED cannot seek exclusion of period of hospitalisation, after failing to implement an order of custody.
"The judge never passed any order on the memo they filed saying they could not execute the custody. They could have gone to high court. They did not. So they had an order of custody and they did not implement. They couldn't have assumed what'll happen. When you have an order, and you did not implement it, and the 15 days period is over, then it's over. You cannot seek a remand," Sibal submitted.
Sibal also submitted that the ED had returned the custody saying that they could not interrogate Balaji in the way they wanted. He submitted ED could have interrogated him either in their own custody or the custody of the court.
"Sometimes we don't quite understand the meaning of judicial custody and police custody. There's nothing preventing you from interrogating him while in judicial custody. In police custody, he's in your possession and in judicial custody, he's in court's possession. But the nature of interrogation will not change. Situs is not important. Exclusion can come only if they take custody. What prevented them from taking custody?" Sibal asked.
When the court observed that the ED may not have interrogated Balaji due to his hospitalisation and subsequent surgery, Sibal argued that the doctors had permitted interrogation, but the ED did not carry out the same citing that it could not be done in an effective manner.
"Nothing prevented them. They could have taken custody. His condition would have improved after some days and they could have interrogated. They said they could not interrogate in the manner they wanted. They chose not to execute the order. That cannot be permitted. Their memo says that the doctors had permitted interrogation, but they could not carry it out in an effective manner. That is different. They could have interrogated either in their custody or in court's custody. But they did neither," Sibal submitted.
Senior Counsel NR Elango, also appearing for Megala, submitted that the words used in the PMLA is "reason to believe" which would mean that there should be evidence to show that the person is guilty of the offence.
"The words used in PMLA is "reason to believe" that a person is guilty of offence. This language has not been used in any other statute. What happens when there's reason to believe? He's arrested and brought before the Magistrate. In PMLA, there should be evidence that he is guilty of an offence. The officials are not given powers of police because they are already elevated to the level of judge. They have to conclude that a person is guilty before resorting to arrest, " Elango submitted.
Elango also contended that the order of remand passed by the Sessions Judge was without application of mind as the judge had failed to consider the application of rejection of remand. He added that though the law requires grounds of arrest to be given in writing, in the present case, Balaji was not informed of the grounds of arrest.
The court, however, criticised the action of Balaji for not cooperating with the arrest. The court remarked that Balaji had a duty to abide by the law and cooperate with the officials.
"First before pointing fingers at them, you should inform your stand. Why did you refuse to accept it? You have a duty also. Justice Chakravarthy uses the word "drama". You put on the drama at the time of the arrest. Why did you resist at 1:39 am? You are to abide by the rule of law. You don't abide and put on tantrums. When ED is informing the grounds of arrest, you are not willing to hear it, nobody can do anything about it," the Judge said.
To this, Elango submitted that though the ED claimed that they had to arrest Balaji because of his non-cooperation, during the search he had given a sworn statement showing that he had cooperated. He added that in the present case, the ingredients under Section 41(1)(b) of the CrPC were not satisfied and the procedure under Section 41A CrPC was not followed. He thus argued that there was a violation of Articles 21 and 22 of the Constitution.
The court will hear the arguments on behalf of the Enforcement Directorate on July 12.
Case Title: Megala v State
Case No: HCP 1021 of 2023