Legal Eagles slug it out in Senthil Balaji's case before HC

With Solicitor General Tushar Mehta appearing for the Enforcement Directorate (ED), it was former Attorney General Mukul Rohatgi who advanced arguments to demolish the claims of the probe agency in defence of embattled Tamil Nadu Minister Senthil Balaji, arrested in a money laundering case and currently in hospital following heart surgery. The two legal bigwigs were fighting it out before a Division Bench of Madras High Court, hearing the Habeas Corpus Petition (HCP) filed by the minister's wife, Megala.

Chennai: Questioning the maintainability of the Habeas Corpus Petition (HCP) challenging the arrest of Tamil Nadu Minister V Senthil Balaji in a money laundering case, the ED contended that the High Court could not interfere and entertain in this matter when the Sessions Court has not deemed the custody as illegal.

During a more than 8-hour-long marathon hearing before a Bench of Justices Nisha Banu and D Bharatha Chakravarthy, Solicitor General (SG), highlighting the limitations of the HCP, submitted that once a judicial mind is applied and found that custody is not unauthorised, it would be legal unless challenged. “If detention is by way of a judicial order, the remedy lies elsewhere. HCP will not lie. Despite judicial remand, writ of habeas corpus can't be issued,” Mehta said adding, “It is his responsibility to assist the court so that no wrong law is laid down.”

“Even in the case of an unlawful detention, which is the stage in which the courts can intervene?” he asked and argued “If the illegality is cured thereafter, the High Court cannot interfere in it through a HCP. Order of any judicial authority has to be challenged.” Then, the SG drew attention to the fact that the petitioner had not challenged the remand order passed by the Principal Sessions Judge. Even in the HCP, there is no challenge to it because interrogation permitted in the hospital was in their favour, it was pointed out.

Citing many judgments of the Supreme Court, granting custodial interrogation to ED in PMLA cases, Mehta said it had been recorded in P Chidambaram's case itself. Hence, Senthil Balaji cannot claim that the ED lacked the power to seek custodial interrogation. “Having custodial interrogation is not only our right but a duty to be performed. It is not just the right of prosecution but the right of thousands of complainants who have lost their money in the cash-for-jobs scam,” he said, adding that all provisions of CrPC will apply in money laundering cases too as long as they are not inconsistent with the provisions of the PMLA.

“Even Section 41A of CrPC will not apply to the facts of the case where the witnesses have been won over by the accused. Section 41A is the bare minimum requirement and does not prescribe stringent conditions such as Section 19 of PMLA, which requires the investigating officer to record reasons for arrest and put it in a sealed cover,” he submitted. Further, the SG said the law only requires the ground of arrest to be informed 'as soon as possible' and not immediately. However, he said the ED was seeking not custody at present but only exclusion of the hospitalisation period since taking custody would arise only after that.

Countering the ED on the maintainability of the HCP, Rohatgi argued, “If my arrest is illegal and my remand is illegal, I am entitled to a Writ of Habeas Corpus. My case is that the arrest as well as remand is illegal and Habeas Corpus is maintainable.” To substantiate, he read out portions of the Supreme Court judgment in the Gautam Navlakha case wherein it was held if a remand order was illegal or without application of mind and mechanical, HCP will lie. Further, he explained that Balaji's arrest and remand were in violation of Section 19 of the PMLA Act and Section 41A of the CrPC.

Even if there is an earthquake or pandemic, custodial interrogation cannot be granted beyond the period of 15 days of arrest was his contention. “The entire period of 15 days since the arrest is going to expire tomorrow and ED cannot take custody of the Minister at all. The investigation is not being thwarted. What is thwarted in only custodial interrogation and there is no principle to extend the 15-day period,” he argued and said “The clock ticks from the moment the ED arrests a person. Even the Supreme Court cannot put the clock back once the 15-day period is over.”

Responding to the SG on the remand order not being challenged, Rohatgi pointed out that when the HCP was filed on the morning of June 14, there was no remand order at all. His contention was that the ED should have necessarily complied with Sec 41A of the CrPC, mandating the issuance of notice before arrest. In P Chidambaram's case, he explained that there was no argument that the ED cannot ask for custodial interrogation and therefore the court had no opportunity to test the argument being canvassed now.

When Justice Chakravarthy asked whether there is a necessity for the ED to follow Section 41A of CrPC and issue summons before arrest if the officer was satisfied with the reasons for arrest, senior counsel NR Elango submitted that the ED had not established the absolute necessity for arrest. “ED does not have the power to subject an accused to custodial interrogation. No such power has been given by Parliament, consciously, to the ED under the PMLA. As such courts could not grant such power on them,” he submitted and also pointed out that in the arrest memo, a handwritten para was inserted stating that the arrest was intimated to the Minister's brother bringing out the inconsistencies of the ED.