ED Can't Question Integrity Of Judiciary In Kerala : State, M Sivasankar Oppose Plea To Transfer Gold Smuggling Case Trial

The State of Kerala has opposed the transfer petition has stating that the petition is not maintainable under Section 406 of the Code of Criminal Procedure as ED is seeking to transfer trial under PMLA from Kerala to Karnataka while the Scheduled Offence under Sections 16, 17 and 18 of the UAPA is pending trial in Kerala.

"The transfer sought for the PMLA case to another state while the scheduled offence is pending trial is with ulterior motive to tarnish the Government of Kerala by raising baseless allegations and averments that fair trial is not possible in Kerala", the counter stated.

Pointing out that the ED has completed the invesitgation and has also filed a supplementary complaint with 38 items of evidence, the State says, "after having completed the investigation and collection of evidence and submission of the supplementary complaint, the prosecuting agency cannot seek transfer of the PMLA case to another State merely on the ground of alleged interference in the investigation by State Police."

ED has failed to establish with any kind of material that the State Police and Government of Kerala have hindered the investigation. The Government of Kerala has assured all necessary assistance and support to the agencies. Immediately after the seizure of the Gold, the Chief Minister of the State had sent a letter to the Prime Minister inviting his attention to the attempt at smuggling the gold through diplomatic baggage and requested that an effective and coordinated investigation into the incident by all the agencies.

It can be made out from the Grounds in the Transfer Petition that the main reason for seeking transfer of the PMLA case are registration of two FIRs by the Kerala Police and the appointment of a one man Judicial Commission to probe alleged fabrication of evidence in relation to gold smuggling case probe.  As the said FIRs and the the appointment of the judicial commission was the result of investigation being conducted by the State Police on the request of the ED itself, the ED cannot raise a complaint.

The State also refuted the averments in the Transfer Petition that the Respondent 4, M. Sivashankar was a highly influential person in the State of Kerala and that the Kerala Police was trying to subvert the investigation at his behest. "It is trite and settled that mere apprehension of the accused or any of them being influential cannot be a ground to transfer", the counter stated.

It has also been contended by the State that the transfer of the trial would also cast aspersions on the independence of the Kerala Judiciary

M. Sivasankar has contended that the transfer petition filed by ED is "highly politically motivated and the very institution of the proceedings is done to appease the political dispensation ruling the Centre who are the masters of Enforcement Directorate."

He added that the trials before the court have not yet commenced thus, the institution of the Transfer Petition is very premature and that ED's apprehensions are misplaced.

Sivasankar also rebutted the averment of ED that he had control over the State's machinery stating that he was in judicial custody for nearly 100 days and was placed under suspension by the State Government for one and a half years and thus was not in a position to influence in any manner. He also added that he is due to retire on 31st January 2023 when his association with state government would come to an end and there would exist no real or apparent control over the State Machinery. Sivashankar further pointed out that the investigation was complete after the filing of the supplementary complaint by the ED therefore the allegation that the investigation would be hampered by the State Machinery at his behest is out of place.

Sivashankar also stated that the matter is seized of by the Special Court for PMLA Cases, Ernakulam and ED has not made out the case that the Judiciary in Kerala will be biased or will be influenced, thus mere apprehension cannot be a ground for transfer and the petitioner should also not be allowed to question the integrity of the Judiciary in Kerala. Sivashankar also stated that transferring the case would amount to irreparable and disproportionate logistical and financial difficulty to the accused.

It was also pointed out by Sivashankar that the Transfer Petition is filled with malafides and collusion with Swapna Prabha Suresh (Respondent 2) who in her earlier statements had maintained that Sivashankar was innocent in the matter but later the ED was able to coerce her to win over her illegally and have obtained statements that reflect his involvement. Sivashankar added that ED has also got her to make statement under 164 CrPC tarnishing the ruling political dispensation in the State Government of Kerala at the behest of the rival political party who is running in the Central Government.

Sivashankar has furthered the arguments stating that ED's case relies upon Swapna's statement to show that he as well as the State are scuttling the investigation and that they are concocting stories and giving out interviews in a politically charged manner. Supporting the State Sivashankar stated that the State Governement has played a very fair role in the matter and the ED has not made out any case in law warranting the transfer of the case.

A bench led by the Chief Justice of India UU Lalit has posted the case for disposal on October 20.