Supreme Court Reserves Verdict in TN Minister Senthil Balaji’s Plea Against HC Verdict Allowing ED Custody

The Supreme Court on Wednesday reserved its verdict on a batch of pleas in connection with the Directorate of Enforcement (ED) seeking custody of DMK leader and Tamil Nadu minister Senthil Balaji 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 take him into custody. A bench of Justices AS Bopanna and MM Sundresh also declined the request of the central agency to pass any urgent order regarding their request to take Balaji into custody. Solicitor-General for India Tushar Mehta also argued that the question of the applicability of Section 167 of the Code of Criminal Procedure, 1973 had already been settled, and as such, there can be no reference of this issue, as prayed for by the petitioners, to a larger bench. “I only have two requests. First, I do not see any reason for reference to a larger bench since the issue over Section 167 of the Code is clear. There cannot be a reference. It was prayed for and rejected. Second, as we are running against time, Your Lordships may consider passing some operative order, so that we may know what…” Senior Advocate Mukul Rohatgi protested, saying, “Your Lordships may decide it at the earliest.” “You will get the full order. We will consider this and if necessary, if there is some difficulty, we can list it on some day and pronounce only operative portion. Today we will not say anything,” Justice Bopanna said, before reserving the judgment in the clutch of appeals. 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 not being held to be police officers. Section 167 of the Code cannot apply ‘wholesale’ to the Prevention of Money Laundering Act, Sibal insisted. His contention was that only a ‘truncated’ form of the section would apply, starting from the time when an accused is produced before a magistrate leading to the magistrate taking cognisance of the offences. Senior Advocate Mukul Rohatgi supplemented these contentions by arguing that investigating agencies like the Directorate of Enforcement (ED) had no vested right to take an accused into police custody, even within the first 15 days since the permission of a magistrate was a necessary prerequisite then. The senior counsel insisted that judicial custody was the rule, and police custody the exception. In support of this contention, he relied on the 1992 Anupam Kulkarni ruling, in which the top court had said that an accused could not be detained in police custody after the expiry of 15 days from their initial arrest. Notably, Rohatgi also questioned the correctness of the Supreme Court’s decision in the April 2023 Vikas Mishra judgment, in which a bench headed by former judge MR Shah called for reconsideration of the Anupam Kulkarni bar on police custody beyond 15 days from the date of arrest. This ruling, the senior counsel told the bench, was made in per incuriam since it ignored the decision of a coordinate bench. Owing to the conflicting positions adopted by previous benches, Rohatgi urged the court to refer the matter to a larger bench. Both Sibal and Rohatgi have also doubted the necessity of custodial interrogation saying that the minister, who is currently in a prison hospital under judicial custody, may still be interrogated by the Enforcement Directorate without police remand. Yesterday, Rohatgi told the apex court bench: “It is not as if some golden right is lost forever. The Enforcement Directorate can still interrogate while the accused is in judicial custody. Just that, they will have to make an application. As of today, Senthil Balaji is recovering from a bypass. He is in a prison hospital. For some time every day, he can still be interrogated. We are willing to make this concession.” What has ED argued? The main thrust of the Enforcement Directorate’s objection to Senthil Balaji and his wife’s pleas was the applicability of Section 167 of the Code of Criminal Procedure to the provisions of the Prevention of Money Laundering Act dealing with police remand. “Section 167 of the Code applies to the...

Supreme Court Reserves Verdict in TN Minister Senthil Balaji’s Plea Against HC Verdict Allowing ED Custody

Awstika Das

'To say Section 167 CrPC would not apply is a dangerous proposition,' Justice MM Sundresh remarked during the hearing.

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