KOCHI: In his bail petition filed before the Kerala High Court on Friday, M Sivasankar, former Principal Secretary to the Chief Minister, stated that the Enforcement Directorate failed to unearth any evidence to substantiate its findings that he had called up Customs officers to clear the diplomatic baggage at the behest of Swapna Suresh.
Sivasankar approached the High Court through advocate S Rajeev after the Special Court for Trial of PMLA cases, Ernakulam, dismissed the bail plea. While dismissing the plea, the special court noted in its judgement that no statement with regard to the alleged call to Customs officers was submitted by the investigative agency as per the case records or in the sealed cover. The court had also noted that the customs officer to whom the petitioner allegedly made the request has not been questioned.
The ED alleged that Sivasankar tried to contact Customs officials which they could not substantiate by producing any material. "Even the Customs has no such case to date. Only with a frustrated attempt to substantiate the arrest of him, such an allegation was levelled by the ED. The ED heavily relied on the statement of Swapna Suresh, but they failed to understand the fact that she is an accused at the time of giving the statement against him," stated the petition.
According to Sivasankar, there is no independent material collected by the ED to substantiate the allegations against him. The ED produced selected WhatsApp messages before the special court to mislead it regarding his complicity. He was obtained in custody by the investigating agency for about 15 days and on the 15th day, they obtained the statement from Swapna to implicate the petitioner as an accused. The investigating agency deviated from their original case and now they claim that the money collected by Swapna was from the commission of different projects and he helped her by leaking vital confidential information.
As per the amended provision of Section 3 of Prevention of Money Laundering Act, the prosecution is bound to produce strong circumstances to make out a prima facie case to establish that he assisted some of the accused to conceal, possess or acquire or use of proceeds of crime. However, the ED could not produce any scrap of material to justify his arrest under Section 19 and Section 3 of the PML Act.
Even at the time of his arrest, the ED did not collect any evidence against him, but they obtained the statement of Swapna to substantiate his arrest. Eight signed statements were recorded from Swapna in connection with the investigation of the PMLA case by the ED. In none of these statements, she implicated him or revealed that he was aware of gold smuggling. The ED conducted a full-fledged investigation and submitted a complaint before the Special Court along with several records but none of these implicates him in the crime.
Now, the ED deviated from their main allegation and they claimed that the money seized from the locker of Swapna is the kickback received from certain projects offered by the Kerala government in connection with flood relief. The material collected by the ED is not enough to arrest the petitioner in terms of Section 19 of PML Act. Further, the ED did not comply with the procedure prescribed in the PML Act to arrest the accused. Multiple checks by senior officers are contemplated in the Act but the arrest order did not show that they have complied with the procedure, he said in the petition.
Sivasankar said the main allegations levelled against him were that he introduced Swapna to the chartered accountant in 2018. At that point in time, there was no LIFE Mission project or any other project or gold smuggling is in existence. There was nothing to substantiate the findings that Sivasankar had accepted kickbacks from different agencies and the money kept in the locker of Swapna belongs to him. He did not inquire about the transactions related to the locker and the chartered accountant and had handed over the key to Swapna by June 2019 which is way before even the first occurrence of gold smuggling as stated by the accused. Thereafter, it was operated by Swapna alone.
Siavsankar pointed out that the government is accepting bids through e-tender. In such circumstances, it is very difficult to accept the allegations that he leaked confidential records to Swapna as all the documents associated with any tender can be viewed by any person who has a registration in the e-tendering portal, he stated in the petition.
The court will consider the bail plea on Monday. A senior Supreme Court lawyer is likely to argue for Sivasankar.