ED does not have the power to seek police remand, Tamil Nadu Minister Senthilbalaji argues in Supreme Court

ED urges the court to decide the appeals expeditiously, says the maximum 60-day period for police remand expires on August 14

Updated - July 28, 2023 01:31 pm IST

Published - July 27, 2023 02:51 am IST - NEW DELHI

Tamil Nadu Minister V. Senthilbalaji. File

Tamil Nadu Minister V. Senthilbalaji. File | Photo Credit: B. Jothi Ramalingam

Tamil Nadu Minister V. Senthilbalaji, who is facing money-laundering charges in the cash-for-jobs scam, said on Wednesday in the Supreme Court that the Enforcement Directorate (ED) does not have the power to seek his police custody.

The Minister is now in judicial remand.

Appearing before a Bench of Justices A.S. Bopanna and M.M. Sundresh, senior advocate Kapil Sibal, for Mr. Senthilbalaji, said the anti-money laundering law requires the ED to collect the evidence, complete its inquiry and find a person prima facie guilty before finally arresting him.

The Prevention of Money Laundering Act, in order to prevent any misuse of authority, gives only 24 hours to the ED to “confront” the arrested person with the collected material before producing him before the magistrate, Mr. Sibal contended.

He argued that the magistrate’s authority was confined to the question whether the accused should be let off on bail or remanded in judicial custody. There is no question of police remand.

“What is the point of remanding a person to police custody and interrogation? Is it to start a further investigation? The inquiry should be complete before the arrest itself… My Lords will have to consider this question of law,” argued Mr. Sibal, assisted by advocate Amit Anand Tiwari.

“Then what is the need for judicial custody… Why do you even go before the magistrate at all,” Justice Sundresh questioned.

“There is a need. It is for the magistrate to decide whether there is a crime and whether the person needs to be let off or not… whether he needs to be granted bail or not. If no bail, then remand him to judicial custody,” Mr. Sibal responded.

The Bench was hearing the appeals filed by Mr. Senthilbalaji and his wife, Megala, against the July 14 decision of a third judge of the Madras High Court. Following a split verdict by a Division Bench, the third judge upheld the ED’s power to seek police remand of the Minister.

Solicitor-General Tushar Mehta, for the ED, urged the court to decide the appeals expeditiously. He said Section 167 (procedure when investigation cannot be completed in 24 hours) of the Code of Criminal Procedure (Cr.PC) provides for a maximum police remand of 60 days for these offences. “The 60 days would be over on August 14. So, we may not be able to interrogate him even if we succeed here,” Mr. Mehta said.

Mr. Sibal said the ED could interrogate the Minister even in judicial remand. “What prevents you from interrogating him even now,” he asked.

In the hearing, Mr. Sibal argued that ED officers were not police officers and did not have the right to seek custody in the first place. “An ED officer does not have the status of an officer in charge of a police station. Section 167(2) of the Cr.PC empowers a magistrate to authorise 15 days’ remand only when an accused is produced by a police officer,” he argued.

Justice Sundresh questioned Mr. Sibal’s argument, observing that the ED had never said they were “police officers per se”. The Bench said the ED was only seeking to sustain its powers under the Prevention of Money Laundering Act to inquire into the charges against the Minister.

But Mr. Sibal responded that unlike the “enforcement officers” under the Customs Act or the Foreign Exchange Regulation Act or the Central Goods and Service Tax Act, an ED officer did not enjoy the “deemed fiction” of having the same powers as a police officer.

“A bare perusal of Section 167 of the Cr.PC makes it clear without any doubt that it contemplates the first 15 days of custody for police officers only and not for other authorities,” he submitted.

The hearing would continue on July 27.

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