The third Judge held, the ED has power to arrest Senthilbalaji
Justice CV Karthikeyan, who was named as the third judge to hear the HCP after the split verdict given by a division bench, pronounced his final orders coinciding with the legal views taken by Justice Bharatha Chakravarthy
Minister V Senthilbalaji, Madras High Court
CHENNAI: The Madras High Court on Friday held that the Enforcement Directorate (ED) had the right to subjugate minister Senthilbalaji into police custody under PMLA act in the cash for jobs scam case after hearing the Habeas Corpus Petition (HCP) filed by Senthilbalaji's wife Megala.
Justice CV Karthikeyan, who was named as the third judge to hear the HCP after the split verdict given by a division bench, pronounced his final orders coinciding with the legal views taken by Justice Bharatha Chakravarthy. The judge opined that ED has the powers to arrest Senthilbalaji in this case. He further observed that the HCP is not maintainable and can't be entertained, as judicial custody given by the session's juge and ED arrest are legal. The court also observed that the period of hospitalisation can be excluded from the custodial period for the purpose of interrogation, however, the judge insisted that the division bench to determine the period when such custody can be taken by the ED.
Senior counsel Kapil Sibal appeared through video conference for Senthilbalaji, marveled that the Solicitor General (SG) took a U-turn that It is the SG who argued in SC that PMLA is not a penal statute and ED doesn't have the power to arrest now, the SG is arguing just the opposite.
The senior counsel contended that the Supreme Court (SC) said, PMLA (Prohibition of Money Laundering Act) empowers ED to summon bank officials, financial institutions, and brokers who deal with finances if, all that evidence is collected, it is the same evidence that would be used to file a complaint. As far as PMLA is concerned, ED has no police powers at all, they are neither officers in charge of a police station, that provision is absent under PMLA, hence, how do they take them to a Magistrate for remand, he added.
According to SC judgment in Vijay Madanlal Choudhary case, PMLA empowers ED to only conduct an inquiry and not an investigation, argued Kapil Sibal. ED powers may have a semblance of an investigation only because it involves search and seizure, such semblance is also only to satisfy the adjudicating authority, he added.
ED could have taken Senthilbalaji into custody after having obtained an order from the sessions court, however, after not subjugating him into custody, they cannot now say the circumstances were not conducive, he contended. The SC said, even during COVID times, the 15-day judicial custody period from the date of arrest, for the purpose of taking custodial interrogation, cannot be relaxed, he added.
After Kapil Sibal concluded his arguments the counsel for ED asked permission to submit their arguments as certain new points have been argued by the petitioner. However the judge denied permission stating that no new points have been argued by the petitioner's side.
After hearing all the arguments the judge pronounced his judgment in the open court, stating that HCP is not maintainable, ED has the right to arrest and the exclusion of 15 days from the date of arrest for the purpose of custodial interrogation is permissible. The judge also said that a copy of this order will be put before the Chief Justice to be placed before the division bench for further procedure.
