New Delhi: The Supreme Court Friday issued notice on the plea by Tamil Nadu Minister V Senthil Balaji against the Madras High Court order allowing the Enforcement Directorate (ED) to take him into custody for questioning in connection with the cash-for-jobs scam.
Senior advocate Kapil Sibal, representing Balaji, submitted before a bench headed by Justice AS Bopanna that there are a lot of issues which have to be considered by the court -- there was a split verdict by a bench of two judges, then a third judge settled the conflicting view – and now the matter is before the apex court.
Sibal said if they are not police officers, ED officers cannot take his client under custody under section 167 of CrPC and therefore, will have to be sent to judicial custody and pointed out that his client was in the hospital for 15 days, which must be excluded.
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Sibal said this matter needs to be heard at length. Solicitor General Tushar Mehta, representing the ED, said the Prevention of Money Laundering Act (PMLA) does not provide for judicial custody.
Mehta said just sending that person into judicial custody does not make sense and the entire point of arrest will become futile. Mehta said the 15 days period is over and he was in the hospital but the HC held that ED had the right to take him into custody and emphasized that it is their duty to investigate the matter.
The bench, also comprising Justice M M Sundresh, suggested a date for a hearing. Sibal said it will be difficult for him to be available on that date. Mehta quipped, enough of luxury by the accused. After hearing submissions, the top court issued notice and fixed the matter for hearing on July 26.
Sibal sought interim protection for his client from police custody. Mehta said they can't take him in police custody because the third judge has said that the division bench will decide from when the 15th day will begin. Sibal said if the division bench decides against his client, where will he go?
The top court said nothing will happen and fixed the matter for a hearing on July 26. Senthil’s wife Megala also moved the apex court against the HC judgment. Megala’s plea challenged the validity of the Madras HC'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 the 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".
The plea, filed through advocate Amit Anand Tiwari, argued that the HC erred to hold that ED has the right to investigate further after making an arrest under Section 19 of PMLA (Prevention of Money Laundering Act) and then seeking custody for further investigation is permissible.
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