Settling conflicting views concerning the ability of the Enforcement Directorate to hunt police custody of the accused, the Madras High Court dominated that the central company was entitled to hunt the custody of Tamil Nadu Minister Senthil Balaji within the cash laundering case over the alleged cash-for-jobs rip-off.

Justice CV Karthikeyan, the third choose to whom the matter was referred to following a split within the division bench of Justices Nisha Banu and Bharatha Chakravarthy, dominated in favour of the ED. Deciding a habeas corpus petition filed by Balaji’s spouse Megala, Justice Banu had held that Enforcement Directorate is not entrusted with the powers to seek police custody beneath the Prevention of Money Laundering Act. Differing from this opinion, Justice Bharatha Chakravarthy had held that the Habeas Corpus Petition just isn’t maintainable and the ED was entitled to police custody of the accused.

Now, Justice Karthikeyan has endorsed the view of Justice Chakravarthy by saying : “The fact that respondents(ED) can take custody for further investigation cannot be denied. The respondent, in this case, had a right to get custody. I would align my opinion with the reason given by Justice Bharatha Chakravarthy in this aspect”.

ED officers not ‘law enforcement officials’; however they will get custody

Justice Karthikeyan accepted the argument made by Senior Advocate Kapil Sibal on behalf of the petitioner that ED officers are usually not law enforcement officials. This argument was primarily based on the Supreme Court’s judgment in the 2022 Vijay Madanlal Choudhary case. “The respondents are not police officers. They have never been characterized as police officers anywhere in the Act. This assertion of the learned counsel cannot also be denied or disputed by the respondents”, the choose said.

However, the choose famous that the Session Judge had remanded Balaji to judicial custody as per Section 167 CrPC, following which the nomenclature of “detenu” adjustments to “accused”. The choose additionally famous that Section 167(2) CrPC allows the remand of the accused to “such custody as such Magistrate thinks fit” through the first fifteen days and doesn’t specify whether or not it needs to be “police custody” or “judicial custody”.

While Sibal argued that custody can’t be granted except ED officers have been to be law enforcement officials, Solicitor General of India Tushar Mehta positioned reliance on Section 19 of the Prevention of Money Laundering Act to say that ED can train police powers. SG additionally contended that if judicial remand order might be handed, custodial interrogation order may also be handed.

Settling the difficulty, Justice Karthikeyan famous that Section 19 of the PMLA authorised ED officers to arrest an individual if there are causes to imagine that’s responsible of any offence punishable beneath the Act. Holding the phrase “punishable” to be of nice significance, the choose noticed that when the phrase punishment is used, then the provisions of CrPC will apply.  The individual so arrested should subjugate himself to the legal guidelines of trial and such trial should be beneath the method of CrPC.

It was held that officers like Director, Deputy Director or Assistant Director or another authorised officer who’re empowered to arrest an individual beneath Section 19 can make the most of the provisions of the CrPC although they aren’t “police officers”, because the PMLA says that CrPC will apply to proceedings beneath it.

“It had been held in Vijay Madanlal that ED are not police officials, but nowhere it was said that they cannot take custody. If investigation requires custody, then custody can be sought as a matter of right”, the Court dominated. When arrest is feasible, then in search of custody can also be potential.

“Detenu has to abide by law. Every accused has a right to prove innocence during trial but no accused has a right to frustrate an inquiry or investigation”, the Court added.

Argument that arrest was unlawful rejected

The Court rejected the arguments on the illegality of arrest.

“I reject the argument that grounds of arrest were not informed, because money laundering is not a standalone offence that does not have any background. The respondents were at his doors since June 13. He should have known why. He can’t claim innocence“, Justice Karthikeyan held.

The choose additionally famous that after the remand order handed by the Sessions Judge, the accused himself utilized for bail, which implies that he has submitted himself to the process of arrest.

No distinctive circumstance to entertain habeas after judicial remand

While opining that habeas corpus after an order of judicial remand is maintainable in distinctive circumstances, Justice Karthikeyan held that no distinctive circumstances have been current within the on the spot case to entertain the habeas corpus petition.

Whether the interval of hospital remedy ought to be excluded from the primary 15 days of remand?

On the third situation whether or not ED could be entitled to exclude the interval of hospital remedy of Balaji from the primary 15 days of remand (the interval throughout which they will search police custody), Justice Karthikeyan aligned with the view of Justice Chakravarathy. However, Justice Karthikeyan left it to the knowledge of the division bench to find out the primary date of police custody and the times for which exclusion ought to be granted.

“But as but as a statement of law, I would hold that exclusion of time is permissible”, Justice Kartikeyan stated. After answering the problems, he ordered that the habeas corpus petition be positioned earlier than the Chief Justice to be positioned earlier than the division bench for additional process.

Woes of the victims

In the order, Justice Karthikeyan made reference to the “woes of the victims” of the cash-for-jobs rip-off, who might need mortgaged their properties or bought the family jewelry to pay bribe to safe the a lot coveted authorities jobs. In this regard, the choose opined that the target of the PMLA is two-fold. . One is to figuring out the path of the quantity & if potential restoring it again to victims. The different is punishment for offence of cash laundering.

Senior Advocates Kapil Sibal and Elango had argued on behalf of the petitioner. Solicitor General of India Tushar Mehta and Additional Solicitor General ARL Sundareshan argued for the ED.

Background

Balaji, the Minister of Electricity, Prohibition and Excise, was arrested by the ED on June 15 in reference to a cash-for-jobs rip-off relating again to his time period as Transport Minister through the 2011-16 AIADMK authorities. The arrest adopted an order of the Supreme Court in May which set aside a direction of the Madras High Court staying the proceedings within the cash laundering case in opposition to him.

On the very day of the arrest, his spouse filed a habeas corpus petition earlier than the High Court contending that the arrest and detention was unlawful. The High Court denied him interim bail however allowed him to be shifted to a personal hospital named Cauvery Hospital after he complained of chest ache. He underwent coronary heart surgical procedure on the hospital whereas beneath judicial custody. Although the ED approached the Supreme Court in opposition to the Madras High Court’s order entertaining the habeas petition, the Top Court refused to interfere and decided to await the ultimate choice of the High Court.

To be up to date after the order is uploaded