‘PMLA Abused Enough; Govts Toppled On Basis Of ED’, Says Kapil Sibal In Senthil Balaji Case; Solicitor General Objects To 'Political Arguments'

Senior Advocate Kapil Sibal expressed his apprehension over the ‘abuse’ of the Prevention of the Money Laundering Act, 2002 to target political opposition in the country. He made this remark on Thursday during the Supreme Court hearing on the legality of DMK MP and Tamil Nadu minister V Senthil Balaji’s custody by the Enforcement Directorate (ED) in connection with a cash-for-jobs scam in the state. Balaji and his wife have both filed separate petitions challenging a verdict of the Madras High Court holding that the central agency was entitled to seek police remand and take him into custody. The senior counsel told a bench of Justices AS Bopanna and MM Sundresh: “What I am worried about is that the Prevention of Money Laundering Act has been used and abused enough. My worry is that. We stand here for our clients, who may win, or lose. But, the more important thing is the future of India in terms of the powers of the Enforcement Directorate, which has come into question. This is not straightforward.” “Please confine yourselves to the facts and the law,” Solicitor-General Tushar Mehta sharply interjected in response to Sibal’s comment, before deprecating ‘emotive and political arguments’. The law officer added, “I have demonstrated that since 2002, when the act came into force, the total number of arrests by the Enforcement Directorate has not exceeded 300.” Sibal shot back, “I have not made this political. But if he wants to make it political, then I must ask, what about the governments that have been toppled on the basis of the ED?” “There is also a two years’ sentence on any person making any wrongful arrest,” Mehta continued, referring to Section 62 of the Prevention of Money Laundering Act, 2002, which lays down that any authority or officer who without reasons recorded in writing, either conducts a search of any property or detains, searches, or arrests any person may be handed a prison sentence of a maximum period of two years for such wrongful search, detention, or arrest. “Oh I see,” Sibal retorted, before asking, “Who, in this country, is ever sentenced?” Mehta attempted, “If there is a wrong arrest…” “There is never a wrong arrest,” Sibal exclaimed. “Let us get back to the legal problem,” Justice Bopanna intervened. Sibal, appearing for the embattled legislator, reiterated today that the Enforcement Directorate seeking police remand was illegal inasmuch as they were not ‘police officers’ under the Prevention of Money Laundering Act, as per the decision of the Supreme Court in the 2022 Vijay Madanlal Choudhary judgement. He stressed that the Prevention of Money Laundering Act did not even confer on the officers of this agency, the powers of an officer in charge of a police station, unlike other regulatory statutes like the Customs Act, 1962, and the Foreign Exchange Regulation Act, 1973. He told the bench: “If FERA and customs officers cannot seek police remand, despite fact that they are conferred with the powers of an officer in charge of police station, in the absence of even this provision, how can it be said that ED officers have the power to seek police remand? There is nothing different under the PMLA. This act even excludes officers’ status as officers in charge of police stations. This act also makes it amply clear that the only procedure to be followed is the procedure prescribed in concerned sections.” Sibal also expressed his surprise over the Centre placing its reliance on a 1993 judgement of the Supreme Court in the Deepak Mahajan case, saying, “I do not understand…This judgement is in my favour because it says that Section 167 of the Code of Criminal Procedure, 1973, in truncated form, will apply. There can be no police remand, because the first part of Section 167 will not apply.” He also repeated his submission from the previous day of hearing that the Vijay Madanlal Choudhary dictum placed a bar on the officers of the Enforcement Directorate from seeking police remand insofar as an ‘investigation’ under the governing statute is interpreted to be an ‘inquiry’ for the purposes of the act, and the officers are held to not be police officers. Section 167 of the Code cannot apply ‘wholesale’ to the Prevention of Money Laundering Act, the senior counsel insisted. He called into question the power of the ED to take Balaji into custody by asking: “In light of the judgements of this court in Vijay Madanlal Choudhary, and Deepak Mahajan, in view of the specific provision existing in the Customs Act and FERA, and keeping in mind that the inquiry is complete in this case, under what provision of the law, either under the PMLA or otherwise, will the Enforcement Directorate seek police remand?” Sibal also told the bench that for the Enforcement Directorate’s contention to be accepted, its officers would have to be deemed to be in charge of police stations, before quickly outlining how...

‘PMLA Abused Enough; Govts Toppled On Basis Of ED’, Says Kapil Sibal In Senthil Balaji Case; Solicitor General Objects To 'Political Arguments'

Awstika Das

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