‘Fundamental And Statutory Rights Violated’: TN Minister Senthil Balaji's Family To Madras High Court In Habeas Corpus Plea Against ED Custody

The submission was made by Senior Advocate NR Elango before the bench of Justice Nisha Banu and Justice Bharatha Chakravarthy during the hearing of habeas corpus petition filed by Balaji’s wife. While Solicitor General Tushar Mehta, representing the ED, argued that the habeas corpus plea is not maintainable, Elango said the court has the discretion to entertain the case.

“There is a distinction between order and a valid order. If someone comes and says there is a violation of fundamental rights, your honour has to look whether it is a valid order,” the senior counsel said, while referring to the order remanding him to custody.

The senior counsel further submitted that from morning to evening, he had fully cooperated with the central agency. “At 2:30 am, they have recorded that a Punchnama was served to me and I have refused to accept it. What happened between this time (11 pm and 2:30 am) is not known,” Elango added.

It was also submitted that ED has argued that CrPC is not applicable to it “but there is no finding as such. In the Satendar Kumar Antil case, the court said that liberty is one of the essential requirements of modern men…”

“The court explicitly and purposefully mentioned the investigating agency and not police officers. After this judgment, is it not procedure of law, that every investigation agency must follow procedure and wouldn't its non-compliance affect the rights," he added.

When Elango argued the ground of malice, SG Mehta took objection and said that the same is not part of the pleading. “Malice is also not part of the pleading. You can't bring in points from your personal knowledge without mentioning it in the pleading,” Mehta said, adding that the same should be argued in a petition for quashing and not habeas corpus plea.

The court said it will take note of the objection made by the SG.

Arguing further, Elango said that Balaji was initially sent to judicial custody and the ED sought change in the nature of custody.

“To the utter disregard of division bench's order, how can they go to Sessions Judge and how could the judge look into the matter. This is the gravest illegality on the part of the ED in the history of India,” the senior counsel said, adding that the ED even claimed the minister feigned ill health.

“But yesterday, he underwent a bypass surgery. Will a person fake illness and undergo surgery?”, he continued.

Interrupting, Mehta said: “Let me say this. We still have reservations. But a person's health should not be trivialised. That would be improper.”

Elango also argued that the Supreme Court has made it clear that the 15 day custody period could not be extended in any circumstances. "That lakshman rekha cannot be crossed," he argued.

It was also submitted that unlike the Customs Act, GST Act etc where the investigating agency is given the powers of police, in PMLA no such power is given to the investigating agency. The senior counsel questioned the power of the ED to seek for police custody before the Sessions Court and added that even as per law, the investigating agency, under the PMLA can have custody only for 24 hours which they have already exhausted.

The matter has been posted to June 27 for arguments on behalf of Enforcement Directorate. Meanwhile, the SG also requested the court to consider the matter of exclusion of period of hospitalization from the custody period on the same day. The court agreed with the request to consider the issue.

Case Title: Megala v. The State

Case No: HCP/1021/2023