Supreme Court Dismisses TN Minister Senthil Balaji's Plea Challenging ED Custody

The Supreme Court on Monday dismissed Tamil Nadu Minister Senthil Balaji's plea challenging the custody by the Enforcement Directorate in the money laundering case. The Court allowed the Directorate of Enforcement to have Balaji's custody till August 12 in connection with the cash-for-jobs scam.A Bench comprising Justices AS Bopanna and MM Sundresh dismissed the petitions filed by Balaji and his wife Megala challenging the Madras High Court's judgment which held that the Enforcement Directorate was entitled to take Balaji into police custody. The Court also rejected their pleas that the ED's arrest was illegal.The Court held that writ of habeas corpus was not maintainable against the arrest by the ED. The order of remand cannot be challenged in a habeas corpus petition. If there is any violation of the procedure for arrest prescribed in Section 19 of the Prevention of Money Laundering Act, then action can be taken against the concerned officer in terms of Section 62 of the PMLA.The 2-judge bench also referred the judgment in Anupam Kulkarni, which held that police custody is not permissible beyond first 15 days of remand, to larger bench for reconsideration. Justice Sundresh read out the operative portion of the judgment, which was reserved on August 2.Conclusions in the judgment :i When an arrestee is forwarded to the jurisdictional Magistrate under Section 19(3) of the PMLA, 2002 no writ of Habeus Corpus would lie. Any plea of illegal arrest is to be made before such Magistrate since custody becomes judicial.ii. Any non-compliance of the mandate of Section 19 of the PMLA, 2002 would enure to the benefit of the person arrested. For such noncompliance, the Competent Court shall have the power to initiate action under Section 62 of the PMLA, 2002.iii. An order of remand has to be challenged only before a higher forum as provided under the CrPC, 1973 when it depicts a due application of mind both on merit and compliance of Section 167(2) of the CrPC, 1973 read with Section 19 of the PMLA 2002.iv. Section 41A of the CrPC, 1973 has got no application to an arrest made under the PMLA 2002.v. The maximum period of 15 days of police custody is meant to be applied to the entire period of investigation – 60 or 90 days, as a whole.vi. The words “such custody” occurring in Section 167(2) of the CrPC, 1973 would include not only a police custody but also that of other investigating agencies.vii. The word “custody” under Section 167(2) of the CrPC, 1973 shall mean actual custody.viii. Curtailment of 15 days of police custody by any extraneous circumstances, act of God, an order of Court not being the handy work of investigating agency would not act as a restriction.ix. Section 167 of the CrPC, 1973 is a bridge between liberty and investigation performing a fine balancing act.x. The decision of this Court in Anupam J. Kulkarni (supra), as followed subsequently requires reconsideration by a reference to a larger Bench.BackgroundBalaji, the Minister of Electricity, Prohibition and Excise, was arrested by the ED on June 15 in connection with a cash-for-jobs scam relating back to his term as Transport Minister during the 2011-16 AIADMK government. The arrest followed an order of the Supreme Court in May which set aside a direction of the Madras High Court staying the proceedings in the money laundering case against him.On the very day of the arrest, his wife filed a habeas corpus petition before the High Court contending that the arrest and detention was illegal. The High Court denied him interim bail but allowed him to be shifted to a private hospital named Cauvery Hospital after he complained of chest pain. A division bench of the High Court delivered a split verdict in the habeas plea. Justice Nisha Banu had held that Enforcement Directorate is not entrusted with the powers to seek police custody under the Prevention of Money Laundering Act. Differing from this opinion, Justice Bharatha Chakravarthy had held that the Habeas Corpus Petition is not maintainable and the ED was entitled to police custody of the accused. In view of the split, the matter was referred to a third judge, Justice CV Kathikeyan, who ruled in favour of the ED.What have the petitioners argued?Senior Advocate Kapil Sibal earlier argued that the power to make an arrest under the Prevention of Money Laundering Act could not be conflated with the power to seek police remand, and the Enforcement Directorate’s custody of the minister flew in the face of the 2022 judgment of the Supreme Court in Vijay Madanlal Choudhary. In other words, it was illegal inasmuch as ED officers were not ‘police officers’ under the Prevention of Money Laundering Act, as per the Vijay Madanlal Choudhary decision. The senior counsel also, inter alia, explained that there was a bar on the officers of the Enforcement Directorate from seeking police remand since ‘investigation’ under the governing statute was interpreted to be an ‘inquiry’ in this judgment, in addition to officers...

Supreme Court Dismisses TN Minister Senthil Balaji's Plea Challenging ED Custody

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