The Directorate of Enforcement (ED) on Monday told the Madras High Court that sidelined AIADMK leader T.T.V. Dhinakaran was attempting to protract the proceedings in a 21-year-old case booked against him under the Foreign Exchange Regulation Act (FERA) of 1973 by now insisting upon examination of as many as 17 witnesses in the case.
The submission was made before Justice S. Vimala who was seized of a criminal revision petition preferred by Mr. Dhinakaran challenging an order passed by an Additional Chief Metropolitan Magistrate (Economic Offences-II) court at Egmore here on December 5 denying permission to summon the 17 individuals and examine them as defence witnesses.
Representing the ED, Additional Solicitor-General G. Rajagopalan told the court that most of the witnesses sought to be examined by the accused were either dead or aged. When Ms. Justice Vimala asked why shouldn’t the accused be given a chance to examine at least those who were available, he took time till Tuesday to obtain instructions from the directorate. Earlier, Senior Counsel B. Kumar, appearing for Mr. Dhinakaran, contended that the ED could not object to examination of witnesses by the defence when it had taken about 14 years to examine the prosecution witnesses between 1996 and 2010. He claimed that examination in chief of just one prosecution witness in the case was dragged for about eight years.
The case against Mr. Dhinakaran was that he had allegedly acquired $1,04,93,313 in foreign exchange from unauthorised dealers in violation of FERA provisions. Magistrate S. Malarmathy rejected his plea to examine 17 witnesses on the ground that their non-examination would neither cause prejudice to him nor help in proving his innocence.
Right of the accused
Assailing the rejection, the accused said: “The Magistrate has mechanically, for each witness, posed the same questions namely: How will the petitioner/accused be prejudiced if this witness is not called upon? How will this witness be useful to prove the innocence of the accused?... These are all questions which ought not to have been framed by the Magistrate.”
“Just as the prosecution is at liberty to examine any witness on their behalf to unravel the prosecution case, accused also has a equal right to examine witnesses to prove his defence... It is not necessary, and in fact, it will be detrimental, to require the accused to disclose how and in what manner the witnesses will be useful to him in establishing his defence.”
Mr. Dhinakaran went on to point out that out of the 17 witnesses whom he wanted to examine, 12 were those who had been cited as prosecution witnesses but not examined by the prosecution for reasons best known to it. One of those witnesses sought to be examined now was S.P. Kala, former Special Director of ED, who had investigated the case in the initial stages.
“The importance of this person and his evidence as a witness cannot be gainsaid. It appears to be a settled law that if witnesses cited by the prosecution are not examined by the prosecution, for any reason, then the accused has an untrammelled right to call them for examination on his behalf,” the petitioner’s affidavit read.
