Embattled Tamil Nadu minister V Senthil Balaji and his wife Megala Wednesday assailed the Enforcement Directorate's decision to arrest him in a money laundering case, saying in accordance with an apex court judgement, the officials of the probe agency are not police officers and so they cannot make arrests.
Appearing for the minister and his wife before a bench of Justices AS Bopanna and MM Sundresh, senior advocate Kapil Sibal referred to various provisions of the Prevention of Money Laundering Act, Code of Criminal Procedure and the apex court judgement while trying to drive home the point that ED not being a police agency lacked the power to arrest.
"There is no provision under the PMLA for the Enforcement Directorate to seek remand of an accused into its own custody in the same manner as an officer in charge of a police station can do in exercise of power under section 167 of the CrPC," the senior lawyer said.
"If an officer of the ED is not a police officer when a person accused of predicate offence under the PMLA has to compulsorily answer questions or face prosecution, making their statement admissible in trial, then at what stage do they become a police officer," Sibal asked.
He referred to the top court's 2022 judgement in the Vijay Madanlal Choudhary case and said it had held that ED officers are not "police officers".
In the verdict, the apex court had upheld the ED's powers relating to arrest, attachment of property involved in money laundering, search and seizure under the Prevention of Money Laundering Act.
It had, however, said authorities under the 2002 Act are "not police officers as such" and the Enforcement Case Information Report cannot be equated with an FIR under the Code of Criminal Procedure.
The senior lawyer said though the 2022 judgement has several anomalies and has been challenged on several grounds, it did hold that ED officials are not police officers and hence, the powers available to police with regard to arrest and custodial interrogation were unavailable to the anti-money laundering agency.
"Personally, I feel Vijay Madanlal's judgement is wrong but that is for another court to decide. But here I am relying on that judgement to say that ED officials are not police officers," he said.
"Your contention is unless you are a police officer there is no question of (seeking) remand," the bench said.
Sibal said the normal notions of criminal law cannot be applied in this case.
Solicitor General Tushar Mehta, appearing for the ED, said the plea be decided expeditiously as the probe agency only has time till August 13 to quiz the minister in custody.
He said the 60 days time, prescribed under section 167 of the CrPC, to complete the probe and for filing the charge sheet is ending on August 13.
The bench took note of his submissions and said it will continue with the hearing on Thursday at 2 pm.
The top court had on July 21 sought the ED's response on the petitions filed by Balaji and his wife Megala challenging the July 14 order of the Madras High Court upholding his arrest by the probe agency in a money laundering case.
The minister and his wife have filed two separate petitions in the top court challenging the high court order.
Besides upholding the arrest of the minister, the high court had held as valid his subsequent remand in judicial custody by a sessions court in the money laundering case arising out of the alleged cash-for-jobs scam in the state's transport department when he was the transport minister.
Balaji continues to be a minister without portfolio in the Tamil Nadu cabinet.
The solicitor general had told the bench that the agency officers are entitled to make arrests.
"There can't be a situation where I (ED) arrest someone only to be sent to judicial custody because the very purpose of arrest is for the purpose of investigation," he said.
Justice CV Karthikeyan, who was named as a third judge by the high court to hear the habeas corpus petition of Senthil Balaji's wife, following a split verdict delivered by a division bench, had concurred with the conclusions arrived at by Justice D Bharatha Chakravarthy, who had upheld Balaji's arrest.
The third judge held that the accused had no right to frustrate the investigation.
Justice Karthikeyan had directed the registry to place the matter before Chief Justice SV Gangapurwala to refer it to the same division bench to determine the date on which the ED could take the custody of Senthil Balaji, who has undergone a coronary bypass surgery, and to shift him from the hospital.
Balaji was shifted to the Puzhal Central Prison in Chennai from a private hospital recently.
In his order, Justice Karthikeyan had said, according to the complainant, he had given Rs 2.40 lakh (for securing a job in a state-run transport corporation).
This was the specific offence of bribery for which an FIR was filed, after which the ED had registered the Enforcement Case Information Report (the ED's version of FIR).
The ED had subsequently arrested Balaji.
