#MadrasHC continues hearing of the Habeas Corpus plea filed against the arrest of TN Minister #SenthilBalaji by the #EnforcementDirectorate
Justice CV Karthikeyan is hearing the plea following a split verdict by a division bench
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
In the previous hearing, SG Tushar Mehta, representing the ED submitted that it was not precluded from carrying out investigating and interrogation
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#MadrasHC #SenthilBalaji
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Senior Counsel Kapil Sibal, appearing for Megala, senthil balaji's wife will be replying to the submissions made by the SG
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Sibal: The objective of the Act is to protect the money laundered proceeds. Attach the proceeds as property and confiscate it at the end of the trial if found guilty. The object is not to punish, which is why it's not a penal statute
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Sibal: It's the solicitor who argued in SC that it's not a penal statute, that it's for investigation. Now he's arguing the opposite. Kudos to him
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Sibal: My next limb of argument is whether the word Investigation used in PMLA must be read as inquiry. The SC says investigation really means inquiry. That there's a semblance of investigation and it's only inquiry
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Sibal: PMLA empowers ED to summon bank officials, and collect evidence. This material is used to file a complaint. You search, seize, get statement. You call banks/financial institutions and confront him. You take a statement. Then based on material you arrest him. I don't say…
Sibal: SG mentioned about foreign regulations. We're not concerned with foreign regulations.Senthil Balaji is not that important that the whole world will be affected by this judgement.
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Sibal: My learned friend relied on Deepak Mahajan judgment. It deals only with FERA and not whether a person can be sent to judicial custody. Instead of reading out specific paragraphs, my learned friend should have told you lordship how Deepak Mahajan came to be decided…
Sibal: Then my learned friend cited some other judgments which were all prior to Vijay Madanlal Choudhary. So we don't have to consider all that.
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Sibal: The aegis of the case is, under S. 167 only a police officer can go to the Magistrate. ED is neither an SHO nor a police officer. Then how can they go to Magistrate. So the constitutional provision comes into play because you have to produce him before the Magistrate and…
Sibal: PMLA empowers only inquiry and not an investigation
Sibal takes the court through the judgment in Vijay Madanlal Choudhary which dealt with the scheme of the Act.
#MadrasHC #SenthilBalaji
Sibal takes the court through the judgment in Vijay Madanlal Choudhary which dealt with the scheme of the Act.
#MadrasHC #SenthilBalaji
Sibal: In other words, this legislation is an amalgam of different facets, including setting up of agencies and mechanisms for coordinating measures for combating money laundering.
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Sibal reads from the judgment
"...they are tasked with dual role of conducting inquiry and collect evidence to facilitate adjudication proceedings before the Adjudicating Authority in exercise of powers conferred upon them under Chapters III and V of the 2002 Act and also to use…
"...they are tasked with dual role of conducting inquiry and collect evidence to facilitate adjudication proceedings before the Adjudicating Authority in exercise of powers conferred upon them under Chapters III and V of the 2002 Act and also to use…
Justice Karthikeyan: So you want to convey that whatever is collected as evidence till that stage is to be used. This would include a statement under S.50.
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Justice Karthikeyan: It makes a statement under S.50 admissible. The statement recorded by the police is usually not admissible. But here it is admissible. They use the word "same" to show that even if there is a doubt about its admissibility you can use it. It doesn't put an…
Sibal: Milord I'm just reading paragraphs from the judgment, not the intent with which the judges made it. If your Lordship says the same material before arrest, and yet they have power to investigate as a police officer, you can say that I'm not saying no, I'm only reading the…
Justice Karthikeyan: As you say, he can record statements under S 164 CrPC. It's admissibility is a separate issue. Recording statements also come under the Evidence Act. In PMLA statement recorded before arrest is admissible. So the SC says that such statement is admissible even…
Sibal: The SC says they're not police officers. Then how can they record statement after arrest. They can only record statement before arrest under S.50. That is why S.19 says arrest only if guilty of offence
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Sibal: When you look at the ocean, you only see the waves, not what's under the ocean. Unfortunately, here We're dealing with the mayhem that happens under the waves.
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Sibal: Kindly look into S.50 PMLA. It's not just the statement of the accused. It is a full fledged, complete enquiry where the authorities inquire where the proceeds of crime have entered into the legitimate market, which makes it money laundering. The scheme is entirely…
Sibal: The ED are not police officers. It's not a penal statute. You collect materials, confront the accused with the materials, arrest him and produce him for judicial custody and nothing more
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Sibal: My learned friend can't say that they can investigate, but nothing else applies. The SC has said that investigation is not how it is used in the code but in the nature of an inquiry which is why they said it can be interchangeable
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Sibal: SG argued that investigation is investigation. We know that. But the SC does not think so. There's no provision which empowers ED to seek custodial interrogation. Look into S.167 CrPC for a moment.
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Sibal: S.167 reads "officer in charge of police station" or "officer not below the rank of sub-inspector". ED is neither. Then how can S.167 apply. The constitutional provisions will apply. The Act does not give him that power. Then how can any court give him that power.…
Sibal: PMLA empowers ED to examine people on oath. He can do this because he is not a police officer. This is a comprehensive process of acquiring materials relating to money laundering from all persons involved. Otherwise, the meaning under S.19 would be unconstitutional.…
Sibal: It's the power which is exercised on the basis of materials in his possession on the basis of which he finds that he has been guilty of the offense. If he doesn't do all this, if he doesn't collect all this, then it'll be an unbridled power
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Sibal: Now we may look into S.66 PMLA which requires disclosure of information. If ED is police officer, it can straightaway start investigation and need not share info with other agency
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Sibal: We had argued before SC that PMLA was unconstitutional. But SC upheld it based on interpretation that ED are not police officers and what is contemplated under the Act is inquiry not investigation
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Sibal: They are saying that S.167 cannot be applied in part. I'm not saying that. I'm just saying what the SC said. ED has neither been given the powers of SHO or police officer.
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Sibal: Before going into Deepak Mahajan, kindly come to FERA. I'm sorry my lord I'm having a little pain because of a medical procedure yesterday.
Justice Karthikeyan: Please take a break. I'm not running a school or college here. Do take a break and come back at 12:15
#MadrasHC…
Justice Karthikeyan: Please take a break. I'm not running a school or college here. Do take a break and come back at 12:15
#MadrasHC…
Arguments continue
Sibal takes the court through provisions of FERA
Sibal: These officers are given the same powers as ED but is also given powers of officer under S.167. the SG's submission that this power is only qua bail is not true
#MadrasHC #SenthilBalaji
Sibal takes the court through provisions of FERA
Sibal: These officers are given the same powers as ED but is also given powers of officer under S.167. the SG's submission that this power is only qua bail is not true
#MadrasHC #SenthilBalaji
Sibal: I don't know why 1 hour was spent yesterday for academic discussion on Deepak Mahajan case. That case is neither relevant, nor apt for the case before us. The question in Deepak Mahajan is in the context whether the power of the magistrate under S. 167 stands excluded when…
Sibal: The law has deliberately chosen to neither deem the authorities as officers in charge of a police station or to be police officers. Full effect must be given to intention of legislature
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Sibal: Now coming to exclusion, ED should have taken him to custody after obtaining the order. They should have come to the HC for variation of the order or should have challenge it. But they did neither.
Justice Karthikeyan: You also did not do either. This is essentially an…
Justice Karthikeyan: You also did not do either. This is essentially an…
Sibal: We have taken in up in additional grounds
Justice Karthikeyan: They've said you've not challenged it technically. You've not amended prayer.
Sibal: A technical thing your honour.
Justice Karthikeyan: Anyway I'll not stand on technicalities.
#MadrasHC #SenthilBalaji
Justice Karthikeyan: They've said you've not challenged it technically. You've not amended prayer.
Sibal: A technical thing your honour.
Justice Karthikeyan: Anyway I'll not stand on technicalities.
#MadrasHC #SenthilBalaji
Sibal: My learned friend has argued that there can be further investigation even after lodging of complaint PMLA. They can collect materials, but that does not mean they are police officers. That will be a tall claim to make
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Sibal: My learned friend also argued that this is only a prima facie case. S.19 says based on material in his possession, has reason to believe a person to be guilty and that reason to be recorded. Where is the question of prima facie when S.19 says guilt
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Sibal concludes.
Sibal: It was a pleasure to appear before milord.
Justice Karthikeyan: The pleasure is on both sides. It's equal on both sides
#MadrasHC #SenthilBalaji
Sibal: It was a pleasure to appear before milord.
Justice Karthikeyan: The pleasure is on both sides. It's equal on both sides
#MadrasHC #SenthilBalaji
Senior Counsel NR Elango also appears for Megala and submits another SC judgment of 3-judge bench which had approved Gautam Navlakha proposition
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
ASG ARL Sundaresan: Kindly permit me to circulate the medical bulletins issued from time to time
Advocate Zeb Hossain (appearing for SG): Some new points have been argued by the learned senior counsel today. We would just like to submit additional reply to these new points…
Advocate Zeb Hossain (appearing for SG): Some new points have been argued by the learned senior counsel today. We would just like to submit additional reply to these new points…
ASG Sundaresan: I would also like to bring to the court's attention that the brother of detenue has also submitted a letter saying he has heart ailment and so don't do anything to me for 4 weeks. This has become a habit.
Elango: How is this relevant?
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Elango: How is this relevant?
#MadrasHC #SenthilBalaji
Judge records the history of the case starting from the search at the Minister's premises and the split verdict by the division bench which necessitated the present hearing.
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Justice Karthikeyan (dictating order): Entire issue surfaced owing to the fact that a complaint was raised that the entire process had directly affected the physical and other well being of the detenu. It was submitted that grounds were not intimated and that arrest has violated…
Justice Karthikeyan (dictating orders) : Contrasting with this particular statement, ED stated that there was complete non cooperation by the detenue from the time statement under S. 50 was sought to be recorded. They say detenue had thrown tantrums and threatened the officials…
Judge records the application before the Sessions Court and the proceedings that took place in the before the Sessions Judge and the Division Bench
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Court dictates the facts that led to the registration of the Enforcement Case Information Report (ECIR) by the ED. Judge records the SC judgments briefing the allegations against the detenu
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Judge records the observations made by SC where the SC recorded that "it is ironic that persons who are victims go for a huge jobs for cash scam are alleged to have come to court with unclean hands by persons whose hands were allegedly tainted with corrupt corruption money"…
Justice Karthikeyan (dictating orders): These are telling observations by the SC and these facts are required to understand why a further search was conducted on June 13th and the conduct of the detenu as stated by ED
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Justice Karthikeyan (dictating orders): The Supreme Court took judicial note of a peculiar fact and according to them, in May 2021 the political climate in the state changed, but still, though the principle actors changed, the script remained the same for the victims and the…
Justice Karthikeyan(dictating order): This judgement of SC was not brought to the notice of the division bench by either side. But I will be failing my duty if I were not to examine this judgment which is the crux that led to ED proceedings
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Justice Karthikeyan records the submissions by petitioner regarding details of search and arrest. Records her submission that the detenu was illegally detained and not allowed to meet anyone and that she came to know of the arrest only when news was flashed on TV
#MadrasHC…
#MadrasHC…
Judge records the petitioner's submission that the ED was politically motivated being an agency of the Union Govt and used to defame and demoralise the detenu who, according to her, was a successful minister of the Government of TN Cabinet
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Justice Karthikeyan(dictating orders): Before going into the arguments advanced, it would be interesting to note that ED was established in 1.5.1956 which means as an agency it has been in public field for more than half a century
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Order: It is stated to be a law enforcement agency and charged with the responsibility for enforcing economic loss and for fighting economic crimes.
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Order: The objects state that it is an act to prevent money laundering, and to provide for confiscation of property derived from or involved in money laundering and for matters connected therewith or incidental.
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Judge goes through the provisions of PMLA
Order: I must point out with much anguish that though arguments have been advanced holding that the detenu is the victim, not one word or letter was spoken about the actual victims of what can be called predicate offence. A predicate…
Order: I must point out with much anguish that though arguments have been advanced holding that the detenu is the victim, not one word or letter was spoken about the actual victims of what can be called predicate offence. A predicate…
Order: In the instant case, the predicate offense was that the detenue or persons working under him, either directly or indirectly, or and or with his knowledge or without his knowledge or in whatever manner, had received as bribe amount from various individuals holding out a…
Order: This court has not forgotten their woes. Even if they are hidden and even if it is to be taken that they had willingly partaken with those whom they are now categorized as accused in the various calendar cases, still, it shouldn't be forgotten that such money would have…
Order: Object of PMLA is two fold. One is determining the train of amount & if possible restoring it back to victims. The other is punishment for money laundering. That is a penal procedure
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Order: The object of both is different. One results in recovering the tainted money and the other is imposing punishment. This distinction must always be kept in mind
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Order: Statement is recorded under S.50 before arrest. This does not preclude ED from proceeding further with the investigation.
Judge now records the judgement in R v. May by House of Lords
#MadrasHC #SenthilBalaji
Judge now records the judgement in R v. May by House of Lords
#MadrasHC #SenthilBalaji
Order: Now, let me address the points of difference. The first, whether ED has power to seek custody of a person arrested. Mr. Sibal relied on SC judgment in Vijay Madanlal Choudhary. It is their contention that they are not police officials
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Order: This assertion is correct. The respondents are not police officers. They have never been characterized as police officers anywhere in the Act. This assertion of the learned counsel cannot also be denied or disputed by the respondents.
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Order: Consequent to judicial remand, the nomenclature changes and the detenu becomes accused. The Sessions Judge had granted custody which can be granted under S 167 CrPC. In the instant case, the fact remains that the detenu had been arrested by the ED. I'll deal with the…
Order: The word "such custody" will refer to judicial custody and police custody. The legislature, in any of the enactments, does not specifically state police custody. It could be there in the rules but in the primary enactment legislature never thought it advisable
#MadrasHC…
#MadrasHC…
Order: Fundamental provision based on which this particular provision will have to be tested is on the basis of Constitution which provides for life and liberty to be granted to any individual which should not be restricted except by a due process of law
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Order: Mr.Sibal argued that Custody cannot be granted unless ED officials were to be police officers. SG on the other hand argued that S.19 has inbuilt provisions. He wondered if S.167 CrPC were not be read inapplicable in entirety and when a person was arrested, there is an…
Order: Now, let us look at S.19. Mr.Sibal argued that statement had already been recorded, materials also had been collected. He submitted that it is a restraint, and such restraint is legalized by the word arrest and the person is handed over to judicial custody, that detention…
Order: There is a small fallacy in the argument. Chapter V of PMLA deals with summons, search and seizure. Survey under S.16 is consequent to informs already in possession of ED. This provides for survey and survey alone
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Order: S.17 goes a step further. Quite in contrast to survey, search and seizure can be by any officer not below the rank of Deputy Director nominated by Director. The nature of authorisation changes.
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Order: S.19 relates to search and arrest of a person. The distinction is forming an opinion that the person must be punished. The person so arrested will have to subjugate himself to the laws of trial and such trial must be under the process of CrPC
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Order: If they are inconsistent then the provisions of this act only will apply. This is placed by me on record since an argument was raised regarding the applicability of S.41 and S.41A CrPC vis a vis S. 19 of PMLA
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Order: In Vijay Madanlal, the SC had stated that any material collected can be used by ED to bolster their complaint relating to offence under PMLA. This indicates that materials collected can also form part of the basis for preferring complaint
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Order: It must be made clear that PMLA is an independent act in itself but it requires a predicate offence before an information is registered by the respondent.
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Judge quotes from Vijay Madanlal
Order: Investigation is used interchangeably with the function of inquiry which relates to collecting materials for the purpose of provisional attachment.
#MadrasHC #SenthilBalaji
Order: Investigation is used interchangeably with the function of inquiry which relates to collecting materials for the purpose of provisional attachment.
#MadrasHC #SenthilBalaji
Judge now deals with the judgement in Deepak Mahajan
Order: Mr.Sibal pointed out that in FERA, specific provisions exist for investigation. SG stated that police officers have not been used because it deals with non-bailable offence
#MadrasHC #SenthilBalaji
Order: Mr.Sibal pointed out that in FERA, specific provisions exist for investigation. SG stated that police officers have not been used because it deals with non-bailable offence
#MadrasHC #SenthilBalaji
Order: I would rest with the reasoning in Vijay Madanlal Choudhary which states that though ED are not police officials, they cannot be precluded from investigation
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Order: It would be wrong on the part of petitioner to say that the SC had passed the order without valid consideration. Any order is passed only after taking into consideration all aspects, whether argued or not, including this judgement
#SenthilBalaji
#SenthilBalaji
Order: It had been held in Vijay Madanlal that ED are not police officials, but nowhere it was said that they cannot take custody. If investigation requires custody, then custody can be sought as a matter of right
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Order: Detenu has to abide by law. Every accused has a right to prove innocence during trial but no accused has a right to frustrate an inquiry or investigation
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Order: In Manik Bhattacharya case, SC was presented with a representation that petitioner was taken to custody inspite of protection from an order of arrest. SC had categorically stated that money laundering was an independent offence and though petitioner could have been…
Order: The concept of custody cannot be extended even if further materials are collected, but the fact that respondents can take custody for further investigation cannot be denied. The respondent, in this case, had a right to get custody. I would align my opinion with the reason…
Order: I'll now go to the third point and then answer the second question. It had been contented that the respondents should have taken custody, irrespective of the conditions imposed. It had been stated that the respondents in this case did not even attempt to take custody…
Order: I reject the argument that grounds of arrest were not informed, because money laundering is not a standalone offence that does not have any background. The respondents were at his doors since June 13. He should have known why. He can't claim innocence.
#MadrasHC…
#MadrasHC…
Order: If the reasons to grant remand outweighs the objections to remand, then certainly such remand will have to be granted. After the remand, the accused himself had applied for bail. That means he has submitted himself to the procedure of arrest. There can't be bail without…
Order: Once there is an order of remand, the custody of the accused is taken away from the ED and vests with the learned sessions judge. Ed had no control over the accused/detenu. It vests with the Sessions Judge
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Order: Once arrest was effected and it was stated by ED that he had turned violent and refused to receive, a reasonable inference can be drawn that grounds were informed
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Order: Once arrest and remand is made legal, an HCP will not lie. In this matter, I concur with the opinion of Justice Bharatha Chakravarthy that though an HCP is maintainable, in this case, certainly, it is not entertainable
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Order: On the point of exclusion, I once again align with the judgement of Justice Bharatha Chakravarthy and hold that the period of 15 days from the date of arrest
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Order: But I division bench to decide the first day of custody since that is the bench dealing with hcp but as a Statement I would hold that exclusion of time is permissible
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Order: In view of above reasons, the HCP may be placed along with a copy of this order before the Chief Justice to be placed before the division bench for further procedure
#MadrasHC #SenthilBalaji
#MadrasHC #SenthilBalaji
Justice CV Karthikeyan alligns with the opinion of Justice Bharatha Chakravarthy
Issue no. 1- ED had the right to get custody
Issue 2. Once arrest and remand are made legal, HCP will not lie. Thus, though HCP may be maintainabke, in the present case, it is not entertainable.…
Issue no. 1- ED had the right to get custody
Issue 2. Once arrest and remand are made legal, HCP will not lie. Thus, though HCP may be maintainabke, in the present case, it is not entertainable.…
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