Kerala State Machinery Turned Against Gold Smuggling Probe After Role Of CM's Principal Secretary Was Detected : ED To Supreme Court

The Enforcement Directorate has denied the allegation made by the Kerala Government that its plea to transfer the trial of gold smuggling case from the State is "politically motivated".

In a rejoinder filed to the Kerala Government's counter affidavit, the ED stated that the transfer of the case from Kerala is necessary and that the petition had been filed on the basis of material facts leading to reasonable apprehension regarding lack of possibility of free and fair trial in the State.

ED has pointed out that if the trial is allowed to continue in Kerala, the case can be derailed due to the influence of accused M. Sivashankar IAS, the former Principal Secretary to the Chief Minister.

Its rejoinder stated :

"Even though a letter was sent by the CM of Kerala to the PM, when the investigation progressed and the role of his own then Principal Secretary was detected, the State Machinery turned against ED and registered false cases by influencing the accused and making efforts to derail the investigation and trial. The 4th Respondent in the petition, one of the key accused, who was then the Principal Secretary, is continuing in a high ranking position in the Government of Kerala even today. If the trial continued in the State of Kerala, the high profile accused will influence the accused persons and witnesses and thereby derail the fair and independent trial of the case."

ED also pointed out that the constitution of a Commission of inquiry by the State Government into an investigation which is already being conducted by a central investigating agency is testament to the fact that powerful people involved in the case are willing to misuse the State Machinery in order to thwart and derail the proceedings in the case. ED also pointed out that the offence of money laundering is a stand-alone offence and is separately tried and investigated and the proceedings under the NIA has no relevance to the question of transfer of trial.

ED has enumerated the reasons which make the transfer of trial to Kerala necessary, they are:

1. Sabotaging the investigation will take place which vitiates the fairness in trial

2. Fairness is wiped out as there is misuse of the State Machinery against the Investigation Agency and its Officers

3. Interference of the State Machinery was arbitrary and unfair when a one man Judicial Commission was appointed on 07.05.2021

4. Influence by High Profile accused will whittle down fairness in trial

5. False and Frivolous statements and Complaints by the Accused against the Investigation Officer vitiate fairness

6. To safeguard rule of law and to assure fair trial"

ED further stated that the "transfer is not being sought on account of any apprehension against the judiciary, such transfer would not cast aspersions on the State judiciary. The question here is not pertaining to independence of Judicary but to uphold the sanctity of fairness in trial."

ED pointed out that the State of Kerala had in its application for impleadment admitted that one statement made by Respondent 2 i.e., Swapna Suresh under Section 164 was enough to cause wide spread riot. ED thus stated that, "It is therefore evident from the pleading of the State of Kerala in its impleadment application itself that the atmosphere in the State of Kerala is so charged in relation to this case that a free, fair, tranquil and independent trial free from external and extraneous influence would be almost impossible"

ED has also highlighted that once the investigation progressed and the role of his own then Principal Secretary was detected, the State Machinery turned against ED and registered false cases by influencing the accused and making efforts to derail the investigation and trial. It has also been pointed out that the State Machinery with the help of the Police is pressurizing the accused to make false allegation against the ED Officials and thereby registering false cases.

ED has averred in its rejoinder that the Government of Kerala is resorting to double standards as the statement given by Swapna Suresh before the Chief Judicial Magistrate Ernakulam under Section 164 is being investigated. ED stated that, "The very respondents who are objecting to the transfer of trial on the ground of independence and integrity of judiciary are now questioning the veracity of the statement given before the judiciary reflects the double standards of the position."

The State of Kerala and M. Sivashankar had earlier filed a counter affidavit before the Supreme Court alleging that the transfer is sought with a motive to tarnish the Government by raising baseless allegations. It was also contended by the State that the transfer of trial would cast aspersion on the independence of the Kerala Judiciary. M. Sivashankar had in his counter alleged that the transfer petition was politically motivated and filed to appease the political dispensation ruling the Centre. He had also rebutted the allegations that he had control over the State's machinery and had stated that the transfer petition had been filed with malafides.

The smuggling came to light after the Customs Commissionerate (Preventive), Cochin, seized gold worth ₹14.82 crore at the Trivandrum International Airport in July 2020. The contraband was carried in the diplomatic baggage addressed to the consulate of the United Arab Emirates (UAE) at Thiruvananthapuram. A UAPA case is also charged with respect to the smuggling, which is before the Special NIA Court at Kochi.

Directorate of Enforcement versus Sarith PS and others | TP (Crl) 449/2022