ED Officer's Writ Filed With Ulterior Motives, Hidden Agenda: Kerala Govt Tells High Court

The Kerala Government has filed its counter affidavit against the writ petition filed by P Radhakrishnan, Deputy Director of the Enforcement Directorate (ED) challenging the investigation instituted by the Kerala Crime Branch into allegations of Swapna Suresh being forced into implicating the Chief Minister and others in the smuggling case. In its counter, the Kerala Government charges the ED that it had ulterior motives in filing the writ petition and publishing statements made by the various accused during the course of its investigation into the gold smuggling scam and its various manifestations. In this respect, it is averred, It is amply clear that the writ petition has been instituted with an ulterior motive, with some hidden agenda, apart from mere challenging of the FIR and the investigation which is being undertaken by the State Police. Barring few averments in the writ petition, seemingly the attempt of the petitioner, in filing the writ petition, is to put up various allegations, speculations and rumours, that have been tossed up in the air in relation to the recent investigations in the State by the Central Agencies, to the public arena, through production of some legally unsustainable documents, so as to malign and to make imputations against even some highly reputed persons in the political arena of the State, who are not parties to the proceedings. Also, it is stated, "Production of documents…is with ulterior motives and malafide interests, which is particularly discernible from the manner in which these documents have been leaked to the media" The submissions in the rather extensive counter affidavit may broadly be categorised as Submissions on procedure and proprietySubmissions on factsSubmissions on law Submissions on procedure and propriety Firstly, the affidavit asserts that the writ petition is not maintainable on law or facts The Crime Branch raises concerns about the legality of the petitioner filed the writ petition in his personal capacity through a private lawyer, when 'he is not figured as an accused in the said FIR and no report has been filed against him in jurisdictional court'. The counter also raises the question of whether it is proper for the petitioner to have produced statements which came into his possession in his official capacity for making use of it for his personal purposes. It is stated, " It is not expected of an officer of the Government to make use of the documents which he has access by reason of his official capacity, for redressal of his personal grievance. It is also said, "It seems that the case file of investigation was made available to private persons who are not involved in the investigative process, for the personal gain of the petitioner to file this Writ Petition." Again asserting that the petitioner is attempting to make use of the process of the court for reasons best known to him alone, it is urged that the documents produced (WhatsApp conversations between accused M Sivasankar and Swapna Suresh) "have no bearing on the facts and circumstances and the subject matter of this Writ Petition and FIR". They have "been only made to divert the attention of this Court and gain media attention", it is submitted. Questioning the manner in which the documents have been marked, the counter states that the procedure of producing documents is contrary to Rule 147(2) of High Court Rules, 1971, It is also asserted that the statements produced are not statements under Section 50 of the Prevention of Money-Laundering Act (PMLA) because the provision requires the any person with information to be summoned and statements given voluntarily, whereas Swapna Suresh and others whose statements were recorded were in custody. These statements had previously been produced in Court in a sealed cover but now has been made public by unauthroisedly producing oit along with the writ petition. Therefore, when arguing that the production of documents has no role in determining whether the bar of Section 195 is to apply, the counter also states, "Court may be pleased to consider as to whether the petitioner has any illegal intention in revealing the materials which he came into possession by reason of his official capacity to the public (by producing the same before the court through a private lawyer) since as aforementioned – documents have no bearing on issues in writ…Petitioner is liable to be dealt according to law for having produced what he ought not to have produced." Submissions on facts The Crime Branch argues that the Audio clip wherein Swapna Suresh raised allegations of being coerced into implicating the Chief Minister was authentic. The ED made request to DGP for inquiry relating to leak of alleged clip, it is revealed. Swapna on two occasions one to the police and once during a preliminary inquiry admitted to the voice in the...

ED Officer's Writ Filed With Ulterior Motives, Hidden Agenda: Kerala Govt Tells High Court

Lydia Suzanne Thomas

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