New Delhi: Enforcement Directorate (ED) officials on Monday took custody of jailed Tamil Nadu minister Senthil Balaji in a money laundering case pertaining to an alleged cash-for-jobs scam in the state’s transport department during 2011-15, hours after the Supreme Court permitted the agency to question the DMK leader till August 12.
Balaji, who was lodged in the Puzhal Central Prison, was taken to ED’s office in Chennai, with personnel of the Central Armed Police Forces providing security, officials familiar with the matter said.
The development came hours after a bench of justices AS Bopanna and MM Sundresh dismissed the petitions filed by Balaji, who was arrested on June 14, and his wife Megala, challenging a Madras high court order upholding his arrest by ED.
Noting that the 15-day custody of Balaji, as granted to ED by the principal sessions judge, will expire on August 12, when the minister’s arrest completes 60 days, the top court allowed the federal agency to interrogate him for five days.
Section 167(2) of the Code of Criminal Procedure (CrPC), 1973 places a restriction on keeping any accused in custody — police or judicial — beyond 60 days [and 90 days in cases punishable with death penalty, life term or over 10 years sentence].
“Conscious of the time constraint, we are inclined to permit the respondents (ED) to have custody of the appellant till August 12,” the bench said.
Balaji and his wife, through separate petitions, challenged ED’s right to take him in custody, arguing the anti-money laundering agency is not “police” under Section 167(2) CrPC. They further argued that police custody can be granted only in the first 15 days of arrest, a view cemented by a 1992 Supreme Court verdict in CBI v Anupam Kulkarni.
Rejecting the arguments, the bench held: “The words ‘such custody’ occurring in Section 167(2) CrPC would include not only a police custody but also that of other investigating agencies. The word ‘custody’ shall mean actual custody.”
The bench further referred the 1992 decision for reconsideration by a larger bench. “Allowing the said interpretation which in our respectful view is contrary to the very mandate of Section 167(2) of the CrPC, would cause serious prejudice to the investigation,” it said.
Referring the question whether the 15-day period of custody in favour of police should be only within the first 15 days of remand or spanning over the entire period of investigation – 60 or 90 days —, the bench directed the registry to place the file before the Chief Justice of India (CJI) for constituting a larger bench on this limited issue.
The bench said admittedly, physical custody of Balaji was not given to the central agency as he was in hospital for a bypass surgery since his arrest on June 14.
“Even assuming that such custody can only be sought for by an agency within the first 15 days, there has to be a physical custody to count the days…the starting point will be from the actual custody,” Justice Sundresh, writing the 87-page judgment for the bench, said.
The case against Balaji pertains to allegations of bribe being allegedly taken by him — now a DMK minister— from people seeking jobs in the state transport department during his stint as the department’s minister in the AIADMK-led government from 2011 to 2015.
The bench had reserved its order on August 2 after hearing submissions of Solicitor General Tushar Mehta, appearing for ED, and senior lawyers Kapil Sibal and Mukul Rohatgi along with advocate Arjun Garg, who represented Balaji and his spouse in the case.
Earlier, ED had submitted that despite CBI v Anupam Kulkarni, the agency got orders of custody in several cases under the Prevention of Money Laundering Act (PMLA). The solicitor general had questioned the correctness of the 1992 decision and argued that physical custody of the minister could not be possible due to Madras high court permitting him to be questioned only at the hospital.
“An investigating agency is expected to be given a 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 [under CrPC],” the bench said.
The court relied on the 37th report of the Law Commission of India that said Section 167 of CrPC is meant for “not only protecting the liberty of a person but also to conclude the investigation in a fair manner.”
The minister’s wife had approached the high court by filing a habeas corpus writ challenging the arrest of her husband. The Supreme Court held that a detention can be illegal if it does not follow the statutory mandate. But in this case, following the arrest, a magistrate court directed judicial custody and subsequently the bail application of the minister was rejected. The court said that the correct approach was to challenge the order of magistrate granting remand for inadequate or wrong reasons before the higher court.
The court even discarded the argument that ED did not comply Section 41A of CrPC by giving notice to appear before the police. The bench said that applying this rule for an arrest under PMLA, would “defeat and destroy” the inquiry/investigation as “any prior intimation might seriously impair the ongoing investigation.”
On May 16, the Supreme Court had allowed ED to proceed with the investigation against him that led to his arrest in the case.
