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Synopsis

The Madras High Court on Tuesday delivered a split verdict on the habeas corpus petition moved by the wife of Minister V. Senthilbalaji.

Megala, the minister's wife, filed a habeas corpus plea before the high court against his arrest by the Enforcement Directorate (ED) on June 14, 2023, in an alleged cash-for-job scam.

She alleged that a Notice under Sec 41-A CrPC was not issued to the Minister and the grounds of arrest were not informed to him at the time of arrest and he was not permitted to avail the right to consult a legal counsel in violation of Article 22 (1).

The plea was placed before a division bench of Justice J. Nisha Banu and Justice D. Bharatha Chakravarthy who differed in their opinion. 

On the following points, the judges gave their opinions as follows: 

ED’s power to seek custody of the persons arrested:

Justice Nisha Banu held that ED is “NOT ENTITLED” to custodial interrogation of the accused under the PMLA, 2002 and Police custody to ED under PMLA is impermissible.

"...under Sec 167 CrPC, police custody can be given by a magistrate only to an officer who is competent to function as a Station House Officer. Under the PMLA, 2022, the ED Officers are not vested with the power to act as Station House Officers unlike in Customs Act, 1962, Central Excise Act, 1944 and even FERA enforced by its own Officers," observed Justice Banu.

Further, she held that the officers empowered to arrest under Sec 19 of PMLA, 2002, are required to produce the accused to the competent court within 24 hours of arrest and seek only Judicial remand and the same may be ordered by the judicial magistrate under the extant provisions of the Act.

ED cannot hold custody of any person beyond the first 24 hrs of arrest, Justice Banu held.

On the other hand, Justice Bharatha Chakravarthy held that ED officers are entitled to ask for custody.

Section 65 of P.M.L.A expressly makes it clear that the provisions in the Code of Criminal Procedure relating to investigation will apply to P.M.L.A, then Section 167 Cr.P.C., should be applicable to mutatis mutandis and therefore, the word “Police” has to be read as Investigating Agency or the Enforcement Directorate, Justice Chakravarthy observed.

"Merely because the express provision to act as Station House Officer is absent, the same will not in any manner disentitle the Enforcement Directorate from asking for the custody," he held.

On the question of the maintainability of a habeas corpus petition after a remand order:

Justice Banu held that in cases other than preventive detention, a failure to follow the procedural safeguards at the time of arrest will vitiate the proceedings and a writ of habeas corpus would lie.

"Failure to follow the procedural safeguards violating Article 22 will vitiate the arrest proceedings and render the remand order, if mechanically passed, also illegal," she held.

On the issue, Justice Chakravarthy held that a petition for habeas corpus agitating to produce the detenu and set him at liberty normally would not be maintainable after the order of judicial remand, but, only under the exceptional circumstances of absolute illegality.

However, he added that the illegalities or the procedural violations, etc., in respect of the said judicial order of remand can only be canvassed by way of appropriate appeal or revision proceedings under the CrPC and not in the habeas corpus petition.

ED's plea to exclude the period of Balaji's hospital admission from the remand period:

Justice Banu observed that it is settled law that except for extraordinary circumstances, the period of police custody cannot be extended beyond 15 days from the date of the initial remand.

She opined that such circumstances did not seem to exist in the present case as the ailment of the detenu appeared genuine and the ED officials themselves had after expert medical opinions thought it not fit his custody awarded to them. 

In view of the same, she held, "As, under the PMLA, 2002, the ED is not entitled for custodial interrogation...the question of exclusion of time ceased to arise. Accordingly, the miscellaneous petition seeking exclusion of time is liable to be dismissed".

On the contrary, Justice Chakravarthy held that since under exceptional circumstance, the rule of first 15 days is dispensable therefore, in the present case, where after the remand, the Minister was not available, not for even a minute, to the ED for custodial interrogation, when the first 15 days went in the hospital for Minister's own benefit, then the benefit of custodial interrogation cannot be denied in its entirety to the ED.

Non-applicability of Section 41A of Cr PC in respect of arrest made under Section 19 of PMLA:

Justice Banu held that in the present Habeas Corpus petition, the question of whether Sec 41 A CrPC is applicable to arrest proceedings under PMLA, 2002 and whether noncompliance of the said provision in cases attracting punishment of less than 7 years would vitiate the arrest proceedings under PMLA and subsequent remand, was of no consequence to the outcome of the matter. Therefore, she left it open. 

Whereas, Justice Chakravarthy observed that the principles underlying Sections 41 and 41-A of CrPC, are to be extrapolated and read into Section 19 of PMLA also. "That is in each and every case it is not mandatory to arrest the accused and the officers, exercising powers under Section 19, have to satisfy the ingredients as mentioned in Section 41(1)(b) of Cr.P.C., and in all the other cases, the arrest procedure need not be resorted to as the investigation can be carried on by issuing summons directing them to provide details," he held. 

Justice Chakravarthy held that on more than one ground mentioned in Section 41(1)(b) of CrPC, the arrest was necessary and the same is clearly mentioned in the grounds of arrest, thus, even in the absence of specific application, substantially the requirements under Section 41 and 41-A of CrPC, stood complied in the instant case.

Brief facts of the case: 

Allegedly, when Senthil Balaji, the present Tamil Nadu Electricity Minister, was serving as Transport Minister in Jayalalithaa’s Cabinet during 2011-15, a job racket took place where bribe was sought for jobs in the Metropolitan Transport Corporation. It is alleged that he had obtained money from third parties promising jobs in the Transport Department and thereafter cheated them.

The ED arrested the Minister on June 14 and he was remanded to judicial custody till June 28.

Meanwhile, after the Minister complained for chest pain, he was admitted to Tamil Nadu Government Multi Super Specialty Hospital at Omandurar Estate in Chennai for a medical checkup. At the government hospital, the Minister was advised CABG-Bypass surgery at the earliest.

On the same day, the Minister's wife moved the high court alleging that his arrest has been done without following the due procedure and sought his transfer to a private hospital for treatment. 

On June 15, though the high court denied the Minister interim bail but allowed him to be shifted to a private hospital in Chennai for treatment.

Now, after the split verdict of the division bench in the habeas corpus plea, the Madras High Court Chief Justice SV Gangapurwala has listed the matter before the bench of Justice CV Karthikeyan.

Case Title: Megala v. State