KOCHI: The Kerala High Court here on Tuesday adjourned the bail petition of M Sivasankar, former principal secretary to the Kerala Chief Minister Pinarayi Vijayan, in a money laundering case related to the gold smuggling case to December 18.
Jaideep Gupta, the Senior Advocate of the Supreme Court, who is representing Sivasankar, completed his arguments. Now, the Enforcement Directorate (ED) will make a submission through Additional Solicitor General Raju on December 18.
Sivasankar's counsel submitted that the entire role of ED in a case initially registered by NIA is to investigate regarding the proceeds of the crime and its laundering.
The ED has made glaring contradiction in this very aspect of proceeds of the crime, conjuring up a narrative as and when they require Sivasankar’s arrest, custody or remand as the case may be on that particular day in court.
This is highly suspicious and smacks of malice and such an investigating agency ought not to be trusted for the proper presentation of facts before the court.
Denying ED's allegations that Sivasankar contacted customs officials to clear the baggage suspected of containing smuggled gold without check, Sivasankar's counsel submitted the statements made by co-accused Swapna Suresh about Sivasankar's involvement are not credible as they were made after her arrest.
Statements of the accused recorded under section 50 of the PMLA after the arrest were inadmissible in evidence as being hit by Article 20(3) of the Constitution of India. Besides, the ED has not made any claim regarding the nature of communication made by Sivasankar or to whom he spoke to.
Thus the allegation was purposely created and maintained by the ED. He asked if the crime is not identified, how can one find out if it is a 'Scheduled Offence' under the Prevention of Money Laundering Act.
The agency cannot proceed against a person on the basis of an underlying offence. In this case, the predicate offence is not defined. The allegations have been changed from gold smuggling to involvement in the LIFE Mission case.
Initially, the agencies claimed that the proceeds of crime were from gold smuggling. Now they say these are kickbacks from the LIFE Mission contract. Prevention of Money Laundering Act, 2002 (PMLA) is not applicable here.
Sivasankar has not received any money, hence the offence under PMLA is not complete. The project was a private contract, so the agency cannot be concluded that a government servant received kickbacks from it.
According to Sivasankar, the LIFE Mission project had its own CEO, who is a very senior IAS officer and it is under the Local Self Government Department which is also a secretary. It was under the supervision of Chief Secretary. The petitioner has no role in it.
The contract was awarded after a public tender and everything is in the public domain. All the bidders can witness the opening of financial bids and the opened bids shall be visible to all at the same time. There was absolutely no possibility for any manual intervention.
The doubt cast by ED regarding sharing of confidential information is hence baseless on two counts – all details regarding projects are available publicly and no manipulation can be done with respect to the quotes or result of the bidding.
The alleged confirmation by Swapna that Sivasankar was one of the beneficiaries of kickbacks of Unitac is completely baseless and devoid of any proof.
The counsel further submitted that Sivasankar is currently under suspension. He has no powers which once used to be attached to his earlier held office.
Therefore, there are no real grounds for apprehension that he may tamper with evidence or influence the witnesses.