The Directorate of Enforcement (ED) has denied the charge of having illegally detained Minister V. Senthilbalaji from 7 a.m. on June 13 till his arrest at 1:39 a.m. on June 14.
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In a counter affidavit to a habeas corpus petition preferred by his wife Megala, the ED said, the Minister was just present during the search operation undertaken at his official residence in Chennai on June 13, under the Prevention of Money Laundering Act of 2002 and not detained as alleged by the petitioner.
Deputy Director Karthik Dasari, the investigating officer (IO) of the case, said, the Minister was served with summons under Section 50(2) of the PMLA after the completion of the search on June 13. But he refused to sign the acknowledgement and receive the summons.
“He started behaving in an intimidating manner, shouted and yelled at the officer that he is a sitting Minister in the State,” the counter affidavit filed through ED Special Public Prosecutor N. Ramesh read.
Left with no other option, the investigating officer attempted to record the Minister’s statement in the presence of two witnesses on June 14 but he did not respond to any of the questions posed and was completely non-cooperative.
As a last resort, the ED officials had to arrest the Minister because otherwise he could destroy material evidences and material objects besides influencing the witnesses to frustrate the PMLA proceedings, the IO said.
Further, recalling that the Enforcement Case Information Report (ECIR) against the Minister was registered in 2021 and he was issued with summons in 2022, the ED said, the Minister had even challenged those summons before the High Court and therefore it could be safely concluded that he was well aware of the PMLA proceedings pending against him for long and yet did not choose to cooperate with the investigating agency.
The officer also told the court that he had strong reasons to believe the Minister was guilty of the offence of money laundering since the materials gathered during the investigation and the statements given by some of the co-accused, victims and other witnesses clearly pointed out to the commission of the offence using the money received from a cash-for-jobs scam that took place when he was Minister for Transport in Jayalalithaa’s Cabinet in 2014-15.
“There was neither justification nor evidence to show that the source of huge cash deposits is from his genuine income,” Mr. Dasari said and pointed out the Minister was arrested by invoking Section 19(1) of the PMLA, 2002 read with Rule 6 of the PMLA (The Forms and Manner of Forwarding a Copy of Order of Arrest of a Person along with the material to the Adjudicating Authority and its Period of Retention) Rules, 2005.
At the time of arrest, the Minister was informed of the grounds of his arrest and they were read over to him but he refused to acknowledge and sign. Therefore, the arrest order/memo was executed in the presence of two independent witnesses.
Guidelines issued by the Supreme Court in D.K. Basu’s case as well as the ingredients of Article 22 (informing grounds of arrest) of the Constitution were fully complied without any omission, the ED asserted.
‘Minister’s family informed about arrest through SMS, e-mail’
Since the Minister was residing alone at his official residence at the time of arrest and his relatives were said to be in Karur, the investigating agency made phone calls to his brother Ashok Kumar and sister-in-law Nirmala at about 1:41 am to inform them about the arrest but the efforts turned futile since they did not respond to the calls. Immediately, the sleuths passed on the information about the arrest to Mr. Ashok Kumar through a text message at 1:44 am on June 14.
Thereafter, the arrest was intimated to the Minister’s wife, brother and his chartered accountant Sathish Kumar through e-mail at 8:12 am. Thus, due care was taken to comply with the procedures, established under the law, at the time of arrest and therefore the present HCP by the Minister’s wife to declare his arrest as illegal, for alleged non compliance to the procedures, need not be entertained, the ED said.
It further contended that the procedures laid down under Sections 41 (obtaining arrest warrant from a Magistrate), 41A (issuing notice of appearance before resorting to arrest), 50A (arrest intimation to relatives and friends) and 60A (arrest to be made strictly according to the code) of Code of Criminal Procedure (Cr.P.C.) would not apply to cases booked under the PMLA which had an overriding effect over all other laws.
The Supreme Court in Vijay Madanlal Choudhary’s case (2002) had upheld the constitutional validity of Section 19 of PMLA and observed that it could not be compared with the safeguards to be adhered to by a police officer before effecting arrest as stipulated in the Cr.P.C. Therefore, the question of following Section 41A of Cr.P.C., while probing a money laundering case, would not arise at all, the ED stated.
The investigation agency also relied upon Supreme Court’s 2019 verdict in Serious Fraud Investigation Office versus Rahul Modi to contend that a High Court need not entertain a HCP challenging the legality of arrest if the accused had subsequently been remanded to judicial custody. It relied upon the judgement of a five-judge constitutional bench in Sanjay Dutt’s case (1994) to canvass the same proposition.
Hospitalisation
Mr. Dasari said, the ED could not subject the Minister to custodial interrogation after his arrest since he was admitted to the Government Multi Super Speciality Hospital at Omandurar Government Estate, Chennai at around 2 am on June 14 and was shifted to Kauvery Hospital on June 15 on the basis of interim orders passed by the High Court in the present HCP. On June 16, the Chennai Principal Sessions Judge granted his custody to the ED till June 23.
However, the Sessions Court added a rider that the investigating officer could interrogate the Minister at the private hospital only after obtaining necessary opinion from the doctors about his fitness. Immediately, the ED sent an e-mail to the hospital seeking such opinion. The doctors replied at 7:45 am on June 17 stating: “He is advised bed rest and to avoid stressful conditions which might precipitate as adverse cardiac event.”
Subsequently, the hospital issued a press release stating the Minister had undergone ‘Beating Heart Coronary Artery By-pass surgery’ on June 21 and therefore, it must be deemed that he was not under any effective custody of the ED ever since his arrest and the investigating agency must be given an opportunity to interrogate him at a later point of time, it insisted.
Published - June 25, 2023 02:04 pm IST
