CHENNAI/NEW DELHI: The Madras High Court on Tuesday delivered a split verdict on the legality of the arrest of Tamil Nadu Minister V Senthil Balaji by the Enforcement Directorate under the Prevention of Money Laundering Act and his subsequent judicial custody. The bench also told the HC registry to place the matter before Madras HC Chief Justice for referring it to a third judge.
Later in the day, a Supreme Court bench of Justices Surya Kant and Dipankar Datta turned down the ED’s request to directly consider the issue of the legality of the arrest and urged the Chief Justice of the Madras HC to refer the matter to a third judge “as early as possible.”
“We request the HC to place the matter before the third judge at the earliest and to decide the legal issues in our order dated June 21, 2023, as early as possible. Post this proceeding for a hearing after 10 days. Pendency of this shall have no bearing on the matter in the HC,” the SC bench said.
In a brief hearing in the apex court on Tuesday, Solicitor General Tushar Mehta said, “Ultimately this is a question of law to be heard by this court. Every day there would be a possibility of tampering with the evidence since he is in hospital. Instead of going to the third judge, the matter can be heard by this court. Influential person is the accused and the damaged time is irreversible.”
Senior advocate Kapil Sibal, appearing for the minister, however, said, “How can the HC be surpassed like this? How can this be brought here? Next date it was listed and under what circumstances can it be brought to this court?”
Detention at the time of hearing of HCP illegal, says judge
Hearing the arguments, the SC bench clarified that the minister would remain in custody “unless otherwise decided” since the court had rejected his prayer for interim bail. While Justice J Nisha Banu, presiding judge of the two-judge Madras HC bench, held the arrest and judicial custody to be illegal and ordered the minister’s release forthwith, co-judge Justice D Bharatha Chakravarthy held that there are no illegalities in the arrest procedure and judicial remand.
The conflicting order was pronounced on a habeas corpus petition (HCP) filed by Megala, wife of Senthil Balaji who is now under post-operative care at a private hospital in Chennai after being arrested on June 14 by the ED. Ruling that the petition is maintainable, Justice Nisha Banu held the ED is not entrusted with the powers to seek police custody under PMLA.
Dismissing the petition of ED to exclude the hospitalisation period from the judicial custody period, she ordered the detenu ‘to be set at liberty forthwith’. The judge said when the HC bench specifically ordered that the detenu shall continue in judicial custody, the ED pressed for police custody and the principal sessions judge (PSJ) proceed to award such custody for eight days.
“Whether this omission/commission happened by oversight or was conscious pales into insignificance as a judicial discipline demands that the order awarding police custody ought not to have been passed,” she said. “The order of PSJ, fails the test of legality both of law and omission to follow judicial discipline and I have no hesitation to hold that the detention at the time of hearing the habeas corpus petition is illegal,” Justice Banu added.
However, Justice Bharatha Chakravarthy dismissed the HCP saying the petitioner failed to prove the detention was illegal and allowed the exclusion of the hospitalisation period from the initial period of 15 days.
SC rejects ED plea to take up case directly
Appearing for the ED, SG Tushar Mehta told a SC bench, “Ultimately this is a question of law to be heard by this court. The accused is an influential person. Every day there is a possibility of tampering of evidence.” But the SC bench rejected ED’s request to directly consider the issue of the legality of the arrest.