'Since ED Is Not Police, They Can't Keep Accused In Custody Beyond 24 Hrs After Arrest' : Senthil Balaji's Argument In Supreme Court

Tamil Nadu Minister V Senthil Balaji has approached the Supreme Court challenging the Madras High Court's judgment holding that the Directorate of Enforcement is entitled to take him into custody in connection with the cash-for-jobs scam.On 14th July, the third judge of the Madras High Court had ruled in favour of the ED, holding that the central agency is entitled to seek police custody of an accused in a money laundering case. The matter was referred to the third judge Justice CV Karthikeyan following a split in the division bench of Justices Nisha Banu and Bharatha Chakravarthy. Deciding a habeas corpus petition filed by Balaji's wife Megala, Justice 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.Justice Karthikeyan endorsed the view of Justice Chakravarthy by saying : "The fact that respondents(ED) can take custody for further investigation cannot be denied. The respondent, in this case, had a right to get custody. I would align my opinion with the reason given by Justice Bharatha Chakravarthy in this aspect". Justice Karthikeyan also agreed with Justice Chakravarthy in holding that the habeas corpus petition in the instant case was not maintainable as there was no illegality in the arrest of Balaji. Challenging the order of the Madras High Court Balaji has approached the Apex Court on the following grounds:ED's Power to seek CustodyBalaji has challenged the ED's power to seek custody stating that in the absence of a specific provision under the Prevention of Money Laundering Act, 2002 the power to arrest would not include to power to seek custody. Even though Section 19 of the PMLA 2002 contains the power to arrest it also requires the person arrested to be taken to the Special Court or Magistrate within 24 hours. Balaji contends that there is no specific provision that entitles the ED to keep the accused in custody beyond 24 hours, or any provision for the Magistrate to allow it. The petitioner has also referred to the Apex Court judgment in Vijay Madanlal Chaudhury which held that the ED is not the police. Since ED is not the police, the powers under the PMLA given to the ED for arrest of an accused cannot be stretched to include custody beyond 24 hours, it is argued. The petitioner also points out that various other statutes which provides the power to arrest to an Enforcement Agency, confers the same powers on the agency as the officer in charge of a Police Station. The petitioner refers to Section 35(3) of the FERA Act, Section 104(3) of the Customs Act, and Section 69 of CGST Act in this regard. The maximum period an accused can be kept in custody is 24 hours under Section 19(3) of the PMLA Act, which is in consonance with Article 22(3) of the Constitution and Section 57 of the CrPC, it is contended.Out Limit of 15 Days of Custody To Police From Date Of Arrest The petitioner also argues that the ED not being the police has no right to seek custody, but in the event of arrest by the ED the period of custody cannot extend beyond 15 days from the date of arrest. The petitioner argues that the ED was aware of the Balaji’s medical condition and yet sought for his police custody. It is also argued by Balaji that the ED seeking exclusion of the period for hospital treatment is an illegal way of enhancing the 15 days period of police custody prescribed. Balaji has taken the ground that in view of the judgements of the Apex Court in CBI v. Anupam J. Kulkarni, (1992) 3 SCC 141 and Budh Singh V State of Punjab (2000) 9 SCC 266, the time period of custody specified in Section 167 CrPC cannot be beyond 15 days. Balaji specifically refers to the judgement in CBI v. Anupam J. Kulkarni, which held that under the language of Section 167 CrPC makes it clear that any order of custody on the expiry of fifteen days from the date of production, can only be "otherwise than in the custody of the police". This was also followed in Budh Singh V State of Punjab, the petitioner submits. The petitioner also argues that the decision in CBI V Vikas Mishra on which the High Court has relied on, is not good in law and that the Court ought not to have deviated from the settled position of law overlooking Anupam J. Kulkarni and Budh Singh. The petitioner submits that the judgment of Justice D. Bharatha Chakravarthy, which was later accepted by Justice Karthikeyan held that the time spent by the accused in Hospital, till he is not in a position to be fit to be interrogated has to be excluded from the initial 15 days time for grant of custody to the ED. The petitioner submits that instead of relying on the settled position of law, the High Court proceeded on the principle of "unearthing of the truth" as its primary objective.Illegality of Arrest...

'Since ED Is Not Police, They Can't Keep Accused In Custody Beyond 24 Hrs After Arrest' : Senthil Balaji's Argument In Supreme Court

Sheryl Sebastian

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