'Admission to hospital not physical custody': SC allows ED custody of TN minister Senthil Balaji

The Supreme Court has dismissed a plea filed by Tamil Nadu Minister V Senthil Balaji against his arrest by the Enforcement Directorate (ED) and the Minister will now be sent to Enforcement Directorate (ED) custody till August 12.

New Delhi:The Supreme Court Monday allowed the Enforcement to take Tamil Nadu minister V Senthil Balaji into custody for interrogation till August 12. The apex court held that no writ petition of habeas corpus would be maintainable if a person is produced before a judicial officer within 24 hours of arrest and stressed that Balaji’s admission to the hospital cannot be termed as physical custody.

A bench comprising justices A S Bopanna and M M Sundresh Solicitor General Tushar Mehta was right in his submission that apart from the fact that the word “custody” is different from “detention”, it can only be physical. “As pointed out by him even the High Court has observed that the appellant continues to be in judicial custody. Admittedly, physical custody has not been given to the respondents. Admission of the appellant to the hospital of his choice cannot be termed as physical custody in favour of the respondents”, said the apex court, in its 87-page judgment.

Justice Sundresh, writing the judgment on behalf of the bench, said custody could not be taken on the basis of the interim order passed by the high court which certainly shall not come in the way of calculating the period of 15 days. The top court said an investigating agency is expected to be given reasonable freedom to do its part. “To say that the respondents ought to have examined the appellant in the hospital, and that too with the permission of the doctors, can never be termed as an adequate compliance”, said the bench.

The top court junked pleas filed by Balaji and his wife Megala challenging the Madras High Court's judgment allowing ED custody of Balaji and rejecting a habeas corpus petition. The court referred the matter to the Chief Justice of India to set up a bigger bench “to decide the larger issue of the actual import of Section 167(2) of the CrPC, 1973 as to whether the 15 days period of custody in favour of the police should be only within the first 15 days of remand or spanning over the entire period of investigation of 60 or 90 days (of filing the charge sheet), as the case may be, as a whole”.

The bench ruled that no prior notice under Section 41A of the Criminal Procedure Code was required to be issued to the accused by the ED officer. The top court said when an arrestee is forwarded to the jurisdictional magistrate under Section 19(3) of the Prevention of Money Laundering Act (PMLA), 2002 no writ of habeus corpus would lie and any plea of illegal arrest is to be made before such Magistrate since custody becomes judicial.

The bench said words “such custody” occurring in Section 167(2) of the CrPC, 1973 would include not only police custody but also that of other investigating agencies and the word “custody” under Section 167(2) of the CrPC, 1973 shall mean actual custody. The top court refused Balaji’s contention that the ED sleuths are ‘police officers’ so they cannot use Section 167(2) of the Criminal Procedure Code to seek police remand.

The apex court said the period of 15 days being the maximum period that can be granted in favour of the police would span from time to time with a total period of 60 or 90 days (of filing the charge sheet) as the case may be. It said, “any other interpretation would seriously impair the power of investigation. We may also hasten to add that the proviso merely reiterates the maximum period of 15 days, qua custody in favour of the police while there is absolutely no mention of the first 15 days alone for the police custody”.

Megala’s plea challenged the validity of the Madras High Court's orders of July 14 and July 4, dismissing her habeas corpus petition as not maintainable. A single judge bench on July 14 concurred with a view of one of the judges on the division bench allowing the ED to take him into custody.

The plea said: “not being a ‘police officer’, there is no law that confers powers on the ED to seek police custody of the accused. There is no provision in the PMLA that confers powers to the ED to seek an order of remand to its own custody in the same manner as ‘an officer in charge of a police station’ or ‘a police officer making the investigation’ exercises on production before a Magistrate under section 167 CrPC post-arrest”.