Senior counsel N R Elango, appearing before the Madras High Court for arrested Minister V. Senthilbalaji’s wife Megala, on June 22 questioned the authority of Directorate of Enforcement (ED) to insist upon custodial interrogation of her husband. He contended the Prevention of Money Laundering Act (PMLA) of 2002 does not confer the powers of a Station House Officer (officer in-charge of a police station) on any official of the ED and therefore the latter cannot seek custody of an arrested person.
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Arguing Ms Megala’s habeas corpus petition before a Division Bench of Justices J. Nisha Banu and D. Bharatha Chakravarthy, the counsel said, though the petitioner had challenged the arrest as such for not having followed the procedure of issuing notice of appearance for inquiry under Section41A of the Code of Criminal Procedure, the ED had opposed the ground by contending that Cr.P.C. would not apply to PMLA cases.
“It is their argument that the PMLA is a complete code by itself. If that is so, when the PMLA does not specifically confer the power of a SHO on ED officers, how can they seek custodial interrogation?” the counsel asked. He pointed out the Parliament had thought it fit to confer the powers of a SHO on the officials under the Customs Act of 1962 as well as the Central Goods and Services Tax Act of 2017 but not under PMLA.
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He took exception to the act of the ED in having approached the Principal Sessions Judge in Chennai after the Division Bench had on June 15 ordered shifting of the Minister from a government hospital to a private hospital for a bypass surgery. The counsel said: “This is the greatest illegality ever committed by the ED. They should not have approached the PSJ after High Court’s order and the PSJ ought not to have permitted custodial interrogation in the hospital itself.”
He also asserted that no investigating agency could be allowed to subject a person to custodial interrogation beyond 15 days from the date of arrest, as held by the Supreme Court in 1992 in Anupam J Kulkarni case, irrespective of any reason be it a tsunami or a pandemic. Therefore, the Division Bench need not consider at all the ED’s plea to exclude the period of hospitalisation while granting Minister’s custody for interrogation, he said.
Mr. Elango cited a host of Supreme Court verdicts to support his argument on the maintainability of the habeas corpus petition. He said, the arrest must be declared illegal and the Minister must be set at liberty since the ED officials had not informed the grounds of arrest to Mr Senthilbalaji at the time of his arrest at 1:39 am on June 14 and had also not followed the procedures under Section 41A of Cr.P.C. before resorting to arrest.
After hearing his arguments for over two-and-a-half hours, when the judges wanted to know whether Solicitor General Tushar Mehta, representing the ED, could present his counter arguments in the afternoon, the SG expressed some difficulty and sought an adjournment to Monday for making his submissions. Then, Mr. Elango requested for an adjournment to Tuesday instead. The judges acceded to their request and adjourned further hearing to June 27.