Chennai: Countering the argument that the Enforcement Directorate (ED) does not have the power or authority of the police to seek custody of embattled Tamil Nadu Minister V Senthil Balaji in the money laundering case, Solicitor General Tushar Mehta submitted before Madras High Court that explicit absence of such powers could not deprive the agency of its right to investigate and interrogate an accused.
He was appearing before Justice CV Karthikeyan, the third judge hearing the Habeas Corpus Petition of Balaji's wife Megala against his arrest by the ED on June 14, after a Division bench had given a split verdict last week. Megala had contended that the arrest without adhering to established procedures was illegal.
Senior counsels Kapil Sibal and NR Elango have on Tuesday argued that the ED does not have police powers to seek custody and the Prevention of Money Laundering Act (PMLA) is only regulatory. Sibal's contention was that the ED was acting as though it is an authority investigating a predicate offence. To substantiate their argument, they cited Supreme Court judgments that have made it clear that the ED is no police.
Representing the ED, Mehta argued that the ED's power to investigate and interrogate could not be taken away. “Just because the SC had said that ED officials are not police officers, it would not strip me of my power to investigate. The SC's finding we are not police officers was in a different context, not to deprive us of our right to investigation. The SC had not excluded the right or duty of ED to investigate or interrogate,” he submitted.
Upon his arrest, which is under challenge, Balaji was admitted to the hospital and remanded by the Principal Sessions Court. Then, he was shifted to a private hospital on the orders of the High Court where he underwent heart surgery and is still convalescing. His judicial custody has been extended further today.
On the applicability of CrPC 167, Mehta asked “If 167 does not apply, what is the sessions judge supposed to do?” and said “Investigation is an inbuilt part of the fabric of PMLA. ED officers may not be police officers but they are conferred with the powers of investigating officers. It is settled law that investigation necessarily includes interrogation. Even after the arrest, my interrogation continues. If I have the power to file a closure report, I have powers to investigate too.”
Emphatic on the necessity for custodial interrogation, he submitted that the ED could not take Balaji into custody since the conditions imposed made the remand a mockery adding in a lighter vein that he might develop chest pain. “For no fault of the investigating agency, the opportunity of custodial interrogation should not be denied, " he argued and said “Sometimes, the stakes are so high that in money laundering cases, getting operated upon is found to be better than getting interrogated.”
Questioning the maintainability of the HCP, he said the very fact that he had applied for bail, is an admission that he is in judicial custody. Of the two remedies available, viz., HCP and Bail, he had chosen the latter and therefore HCP is not maintainable. When the petitioner had selected bail remedy, HCP should not be entertained, he argued. “If after the filing of HCP, a judicial order is passed (remand), then it can't be said to be illegal custody at all. Habeas would not lie because the person would be under judicial order,” he contended.
Also read: Senthil Balaji's judicial custody extended in money laundering case
