ED arrest illegal, violated fundamental rights: TN minister's counsel presses for admitting HCP

Pressing for the admission of the Habeas Corpus Petition (HCP), counsel for Tamil Nadu Minister Senthil Balaji's wife Meghala submitted before Madras High Court on Thursday that the Minister's arrest by the Enforcement Directorate (ED) itself was without following procedures established by law and hence illegal.

Chennai:Even as Tamil Nadu Minister Senthil Balaji, arrested by the Enforcement Directorate (ED), is convalescing at a private hospital following heart surgery, Madras High Court was told that the central agency had not followed the due procedure of law in the arrest, violating constitutional safeguards. The counsel for Balaji made a forceful plea that the court could use its discretion to admit the Habeas Corpus Petition even at this state.

Appearing before a Bench of Justices Nisha Banu and D Bharatha Chakravarthy, senior counsel NR Elango submitted that there was a breach of Section 41 of the Criminal Procedure Code (CrPC) since the ED had admitted to have not issued any notice to Balaji prior to his arrest. It was a violation of his fundamental rights and was illegal.

The present case arises out of the HCP filed by Balaji's wife, Meghala, on the day of his arrest (June 14). Earlier, the Bench had ordered the shifting of Balaji from the Omandurar Government Multi-Super Speciality Hospital to Kauvery Hospital but denied interim bail. On the same day, Principal Sessions Judge, S Alli remanded him to judicial custody and later granted conditional custody to the ED. The ED then unsuccessfully moved the Supreme Court, which had put the ball back into the High Court. Significantly, Balaji continues as a Minister without portfolio in the MK Stalin cabinet.

Puncturing the ED's demand for custody of the minister, he submitted under the Prevention of Money Laundering Act (PMLA), he contended that the agency does not have the power to seek custodial interrogation when the case is under investigation. Also, it was maintained that there is nothing wrong with law to secure bail in the instance case. Faulting the Sessions Court for allowing the ED's request for custodial interrogation, the court's attention was drawn to the fact that this was despite the Bench clarifying that the minister had to remain in judicial custody.

Solicitor General Tushar Mehta, who appeared through video conferencing, argued that the HCP was not maintainable since it had been filed after the remand order was passed. At this, Elango submitted that the HCP was filed earlier in the day and not after the passing of the remand order. Citing the Supreme Court judgment in the Gautam Navlakaha's case (Bhima Koregaon case), he pleaded that the High Court could use its discretion to admit the HCP even at this state. To substantiate that the ED arrest was malafide, the rulings in the sensational Sanjay Dutt case and the case pertaining to the arrest of 'Nakkheeran' editor Gopal under POTA were also cited.

According to Elango, the minister was arrested in violation of all norms despite extending full cooperation with the probe agency. “ Details of what transpired when the minister was in the ED's custody from June 13 to the early hours of June 14 had not been provided even to the court. Without serving a memo, questioning him by detaining at his residence is illegal,” he submitted. The Bench posted the matter to June 27 when the ED sought time.

Meanwhile, the principal opposition AIADMK had filed a Quo Warranto petition, seeking the removal of Balaji from the council of ministers. Petitioner, Ex-MP J Jayavardhan, son of former minister D Jayakumar, contended that a minister can continue in office at the pleasure of the Governor. Since Governor RN Ravi had opposed the continuation of Balaji as a minister, he prayed for a direction to sack him from the cabinet. It is expected to come up for hearing soon.