The Madras High Court on Tuesday, June 27, 2023 completed hearing arguments on a habeas corpus petition (HCP) filed by Minister V. Senthilbalaji’s wife Megala challenging his June 14 arrest by the Directorate of Enforcement (ED) in a money laundering case registered in 2021, in connection with the 2014-15 cash-for-jobs scam in the Transport Department.
Justices J. Nisha Banu and D. Bharatha Chakravarthy heard Solicitor-General Tushar Mehta and Additional Solicitor-General AR.L. Sundaresan for the ED and senior counsel Mukul Rohatgi as well as N.R. Elango for the petitioner for nearly seven hours on Tuesday before asking them to submit their written submissions by Wednesday.
In his arguments, Mr. Mehta questioned the maintainability of the HCP. He contended that the High Court could not issue a writ of habeas corpus directing the ED to produce the Minister before the court and set him at liberty after the Chennai Principal Sessions Court had remanded him in judicial custody at 3.45 p.m. on June 14.
“I am on the very competency of the present proceedings initiated under Article 226 [of the Constitution]. The proceedings are completely incompetent. As on date, the petitioner’s husband is not in my custody. He is in judicial custody. So, today, how can the High Court direct me to produce him and release him,” the Solicitor-General wondered.
He also denied in toto the allegation that the Minister was not informed of the grounds of arrest at 1.39 a.m. on June 14. The Solicitor-General accused the Minister of refusing to receive the grounds of arrest and sign the acknowledgement and said the grounds of arrest were read out to him by the Sessions Judge herself at 3.30 p.m. the same day.
Mr. Mehta contended that the Minister ought to have challenged either the judicial remand order passed on June 14 or the subsequent custodial interrogation order passed on June 16 by filing a revision petition. Instead, his wife could not be heard to attack those orders in a habeas corpus plea without even a prayer challenging their validity.
He added that there was no necessity for the ED officials to follow the process of issuing notice to the accused under Section 41A of the Code of Criminal Procedure since it was a bare minimum requirement, compared to the rigour placed upon the investigating officer under Section 19 of the Prevention of Money Laundering Act, 2002.
Section 19 requires the investigating officer to record in writing his reasons to believe that a particular person had committed an offence under the Act and submit such reasons, along with supporting materials, to the adjudicating authority, appointed by the Centre, after arresting an accused. The provision also requires the submission of documents in a sealed envelope.
“The adjudicating authority (comprising a chairperson and two others), in turn, seals the envelope, once again, and by the time these documents reach the jurisdictional court during trial, they are double-sealed. Such a stringent provision has been incorporated since the investigating officer is liable to be prosecuted for a wrong arrest,” Mr. Mehta said.
Further, disagreeing with the petitioner’s argument that the ED officials had no authority to seek custodial interrogation, the Solicitor-General said the powers exercised by the local police under Section 167 of the Cr.P.C. could be exercised by the ED officials, too, because that Section was not inconsistent with any of the provisions of the PMLA.
The Solicitor-General said the Supreme Court itself had been ordering custodial interrogation of many accused by the ED.
On the other hand, Mr. Rohatgi contended that the Supreme Court had permitted such custodial interrogation since the authority of the ED officials to subject a person to custodial interrogation had not been questioned in those cases.
He further contended that there were no documents to prove the Minister was informed of the grounds of arrest by the investigating officer. No judicial remand order had been passed when the present HCP was filed at 10.30 a.m. on June 14 and therefore the petitioner had questioned the legality of the arrest itself.
Subsequently, utilising the liberty granted by the High Court on June 15, the petitioner had filed the remand order and raised additional grounds, the senior counsel said, asserting that the legality of the arrest as well as the remand order passed by the Principal Sessions Judge could be assailed in the present HCP itself without any need to file a revision petition.
Citing the arguments advanced by the Solicitor-General that the Cr.P.C. provisions which were not inconsistent with the provisions of the PMLA could be invoked by the ED, Mr. Rohatgi said Section 41A of the Cr.P.C. was not inconsistent with any of the provisions of the special enactment on money laundering and therefore, it ought to have been followed.
He also contended that the ED had no authority under law to seek custodial interrogation since it had not been specifically empowered under the PMLA to exercise the powers of a Station House Officer (inspector or sub-inspector of police in charge of a police station). He said such an argument had been raised for the first time in this case for laying down the law.
Even otherwise, a person arrested by any investigating agency could be subjected to custodial interrogation only within the first 15 days of his arrest as held by the Supreme Court in a 1992 judgment in Gautam Navlakha’s case and such a period could not be extended at any cost, be it an earthquake, a pandemic or his hospitalisation during such a period, he said.
Senior counsel further requested the court to consider granting interim bail to the Minister if it was convinced with the submissions made on behalf of the petitioner.
