Supreme Court dismisses Senthil Balaji's plea challenging grant of his custody to Enforcement Directorate

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The top court has also ordered that Balaji would remain in ED's custody till August 12, 2023.

A division bench of the Supreme Court has today dismissed the appeals filed by Tamil Nadu Minister and DMK leader Senthil Balaji and his wife Megala, challenging the order granting Enforcement Directorate his custody in a money laundering case.

Bench comprising Justices AS Bopanna and MM Sundresh has further held that no plea of habeas corpus lies.

On the court's decision to allow Balaji's custody to ED till August 12, 2023. Semnior Advocate Mukul Rohatgi, submitted that Balaji was still unwell and may require medical attention.

In response, Solicitor General Tushar Mehta said, "We will provide a doctor, no issues."

Last week, the Supreme Court had reserved its verdict in the plea filed by Tamil Nadu Minister V Senthil Balaji challenging Madras High Court's decision holding that the Enforcement Directorate had the right to get his custody. 

Notably, top court had also declined the ED's request to pass urgent orders allowing the agency to take Balaji into custody.

Solicitor General Tushar Mehta had argued before the bench that the issue regarding applicability of Section 167 of the Criminal Procedure Code, 1973 was already settled, and did not require any reference to a larger bench.

Senior Advocate Kapil Sibal, appearing for Balaji had told the bench earlier that the case involved certain complex legal questions. 

"In Madanlal Chaudhary, this court held that ED officers are not police officers. So they have to sent to judicial custody, that is the first aspect. Second thing is while he was in judicial custody, the 15 day period they are saying that 15 day period should be excluded.. as per Kulkarni judgment, if he is hospital, the 15 days shall be included. Therefore a question arises which law will apply. My request is that the court may have it this that they can take custody, if at all..", Sibal told the bench.

On the other hand, Solicitor General Tushar Mehta had submitted, 

"Section 19 PMLA empowers us to take custody, Sec 167 CrPC will apply in the Magistrate thinks fit. Here on an admitted ground that 167 applies..The question is now on police custody. PMLA says CrPC will apply unless there is inconsistency..with regard to S 167, there are many inconsistencies. So the HC held that 167 will apply..A similar argument was raised in Deepak Mahajan case wherein FERA was invoked."

SG Mehta had further submitted that it was not the ED's right, but its duty to investigate the case.

Justice Karthikeyan of the Madras High Court had recently opined in the impugned order that once an arrest and remand are made legal, a habeas corpus plea would not lie, therefore, in the present case, though the habeas corpus plea may be maintainable, it was not entertainable.

Further, on the point of exclusion of Balaji's period of hospitalization from the period for custodial interrogation, Justice Karthikeyan held that it was permissible. 

In the SLP filed by Balaji's wife Megala, the Court has been told that the Enforcement Directorate authorities not being police officers have no power to seek custody of a person arrested, under Section 167 of Code of Criminal Procedure, 1973. Reliance in this regard is placed on Vijay Madanlal Chaudhary v. Union of India, 2022 SCC OnLine 92 where it was categorically held that the officers of the ED are not police officers.

"This finding is based on the larger overall finding that the object of the Act is not penal but regulatory in nature, and that the Act only empowers the ED to conduct an inquiry and not an ‘investigation’ as understood under the provisions of the CrPC. Once ED officers have been held not be police officers, there is no question of them seeking custody under Section 167 CrPC, which provision is only applicable to a “officer in charge of a police station” or “police officer”", the plea submits.

Supreme Court has been further informed that the High Court erred to hold that ED has the right to investigate further after making arrest under Section 19 of PMLA and then seeking custody for further investigation is permissible.

"ED being aware of the medical condition of the accused, consciously sought and obtained the police custody of the detenue on 16.6.2023. ED though claims to be aggrieved, has till date did not challenged the order dated 16.6.2023 passed by the Session Judge granting it police custody", the plea filed through AOR Misha Rohatgi Mohta adds.

Case against Balaji:

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.

Thereafter, a division bench delivered a split verdict in the plea, after which High Court Chief Justice SV Gangapurwala listed the matter before the bench of Justice CV Karthikeyan.

Notably, a division bench of the Supreme Court had asked the Chief Justice of Madras High Court to place the habeas corpus petition before a larger bench as soon as possible, within a week.