Chennai: In a major setback for the ruling DMK and the arrested Tamil Nadu Minister V Senthil Balaji, Madras High Court on Friday dismissed as not maintainable the Habeas Corpus Petition filed on his behalf by his wife, Megala, and upheld the Enforcement Directorate's (ED) power to take him into custody.
After marathon hearings which lasted for three days, Justice CV Karthikeyan delivered the verdict without even taking a lunch break. Soon after senior Advocate Kapil Sibal completed his submissions on behalf of Balaji, the judge started dictating the verdict in the open court. He has ruled in favour of the ED.
Upon his arrest by the ED past midnight on June 13, he was hospitalised and then remanded and granted custody by the Principal Sessions Judge. Then, hearing the HCP, a Division Bench allowed him to be shifted to a private hospital where he underwent heart surgery. Megala filed the HCP, contending that the arrest was in contravention of established procedures, violating fundamental rights. On the political front, Chief Minister MK Stalin retained him as a Minister without Portfolio, and the DMK had rallied behind Balaji, arrested under the Prevention of Money Laundering Act (PMLA). Post-surgery, he is still recuperating at the hospital.
The case was placed before Justice Karthikeyan after the Division Bench of Justices Nisha Banu and D Bharatha Chakravarthy pronounced a split verdict. Holding that the HCP is maintainable, Justice Banu declared the arrest illegal and ordered Balaji to be set free, Justice Charavarthy held that the ED was within its power to arrest and seek custody. Now, the third judge had concurred with Justice Chakravarthy. The ED speeding up the case followed the direction of the Supreme Court in the cash-for-job scam against Balaji, when he was Transport minister in the Jayalalithaa cabinet in 2015.
“I would hold that ED herein has a right to take Senthil Balaji into custody. I would align myself with the reasoning given by Justice D Bharatha Chakravarthy so far as this point is concerned. I would rest with the reasoning given (by the Supreme Court) in Vijay Madanlal Choudhary, where it is stated that even though ED officials are not police officers, they cannot be precluded from the investigation.” he said even while accepting the argument of Kapil Sibal that ED officials are not police officers.
But, with regard to Section 167 of CrPC, the Judge drew attention to the fact that following the remand by the Sessions Judge, the nomenclature of 'detenu' has changed into 'accused'. Further, custody for the first 15 days under CrPC has not been differentiated either as judicial custody or police custody.
While conceding the argument of Solicitor General Tushar Mehta that under section 19 PMLA, the ED could exercise police powers, he declined the contention of Sibal that custody could not be granted since the ED is not the police. Referring to Section 19 of PMLA, Justice Karthikeyan said ED officials can take advantage of the provisions of CrPC to take custody and the person so arrested will have to subjugate himself to the trial.
Rejecting the argument of the arrest being illegal, the Judge said “I reject the argument that grounds of arrest were not informed because money laundering is not a standalone offence that does not have any background. The respondents were at his doors since June 13. He should have known why? He can't claim innocence.” Holding that there is no exceptional circumstance to entertain the HCP, he said the instant case does not fall in that category and dismissed it as not maintainable. But, he conceded that time of exclusion of custody (while in hospital), he ordered that the HCP be placed before the Chief Justice for being reverted to the Division Bench for further procedure.
