Have powers to arrest and take custody of Senthil Balaji, ED tells HC

The Enforcement Directorate (ED) on Wednesday informed the Madras high court that it has powers to arrest and take custody of Tamil Nadu minister V Senthil Balaji under the Prevention of Money Laundering Act .

Solicitor General of India Tushar Mehta made his submission to this effect before Justice C V Karthikeyan, who was named as a third judge to hear the habeas corpus petition filed by Balaji’s wife, following a split verdict delivered by a division bench last week.

Balaji was arrested by the ED last month under the PMLA in a cash-for-jobs scam when he was Transport minister in the earlier AIADMK regime.

Mehta said the ED has to exercise its statutory duty. Once it has enough material relating to proceeds of crime, it can arrest a person, attach his properties and confiscate the same.

He said investigation was contemplated after filing of the complaint and also after arrest. Merely because the ED officers were not police officers, it does not mean they have no power to investigate.

In the money laundering case, there was only one offence and the punishment was 7 years RI. Besides it was a non-bailable offence. Therefore, the ED has no power to release an accused. He can be released only by a court. So the ED officers cannot be treated as station officers, he added.

Citing a Supreme Court judgment, Mehta said it was the moral duty of the ED to investigate or interrogate an accused in a money laundering case. As per the scheme of the Act, the ED has to collect material, investigate, search, seize and attach properties, besides arresting the person.

Thereafter, if no case was made out against the accused, closure report has to be filed. When the ED has powers to file closure report, definitely it has power to conduct further investigation, he added.

He said the procedures while effecting arrest, were fully followed in this case. Soon after the arrest, the grounds of arrest in the presence of two witnesses were informed to Balaji, but he refused to receive it. This was recorded in the order of the Sessions Judge, Mehta added.

He said in its interim order, the Division Bench while permitting Balaji to take treatment in the private Kauvery hospital said he will continue to be in judicial custody. Therefore, the ED moved the Sessions Judge and obtained an order for taking custody of him.

Before this order was passed, he was shifted to the private hospital. Moreover, the conditions imposed by the sessions judge were unworkable. Hence, the ED did not implement the order, he added.

He said one of the conditions imposed by the sessions judge was that the ED can interrogate him without hindrance to his health and treatment. Therefore, the ED obtained the opinion of the doctors of Kauveri hospital and based on which,it chose not to interrogate him there.

Moreover, without obtaining an order of custody, the ED cannot seek exclusion of the period of treatment of Senthil Balaji subsequently. Therefore, the ED got an order of custody. It also informed the Supreme Court and the Sessions Judge that it could not execute the order of custody considering the health condition of Senthil Balaji, he added.

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He said if after filing of HCP, the judicial order of remand intervenes then the custody cannot be illegal. Senthil Balaji was under judicial order of custody, when the HCP was filed. Therefore, the present HCP will not lie. The judicial order cannot be questioned in HCP. Moreover, the arrest and remand were not challenged before the appellate forum, he pointed out.

After Mehta completed his arguments, the judge posted the hearing to July 14 for the reply of Senior Counsel Kabil Sibal, appearing for the arrested minister.

Meanwhile, a city court on Wednesday extended the remand of Senthil Balaji to judicial custody till July 26.

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