SC seeks ED's reply on TN Minister Senthil Balaji's plea challenging HC order

Balaji and his wife had approached SC on July 4 and July 14 which were delivered by a bench of two judges and a single judge respectively.

Tamil Nadu Electricity Minister V Senthil Balaji

NEW DELHI: The Supreme Court on Friday sought Enforcement Directorate’s (EDs) response to pleas filed by TN Minister Senthil Balaji and his wife’s plea against the Madras High Court’s order challenging the legality of his arrest.

A bench of Justices AS Bopanna and MM Sundresh issued a notice and posted the matter for July 26, 2023.

Although Sibal sought interim protection from police custody, the bench declined to pass any such order by orally saying that “nothing will happen”.

“We can’t go take police custody because the third judge has said that the division bench will decide when the 15th day will start. We can’t go and take police custody,” SG Tushar Mehta said.

“If the division bench decides against us in the meantime, where will we go?” Sibal asked.

“Nothing will happen,” Justice Bopanna assured.

Balaji and his wife had approached SC on July 4 and July 14 which were delivered by a bench of two judges and a single judge respectively.

A bench of Justices J Nisha Bhanu and D Bharatha Chakravarthy had on July 4 delivered a split verdict on the legality. While Justice Bhanu had ruled that the ED is not entrusted with the powers to seek police custody under the PMLA and had directed for forthwith release of the minister while terming his custody as “illegal” had ordered for the minister’s release forthwith, Justice Chakravarthy had held that there were no illegalities in the arrest procedure and remand.

Against the backdrop of conflicting orders, the matter was referred to a third judge Justice CV Karthikeyan. While putting an end to the conflicting opinions on July 14, Justice Karthikeyan had said that the central agency was entitled to seek the minister’s custody.

Drawing the court’s attention with regards to the legal issues involved in the matter, Senior Advocate Kapil Sibal for the minister told the bench that SC in Vijay Madanlal Chaudhary’s ruling had held that Director, Dy Director under PMLA are not police officers and thus they will have to send the minister to judicial custody since they cannot powers given to police officers u/s 167 CrPC. He added that the other issue which was required to be decided was related to the right of ED officers to seek custody beyond 15 days from the initial date of arrest.

Sibal urged the court to assign an earlier date since Balaji was apprehensive of him being taken to police custody.

SG Tushar Mehta for ED on the other hand said that ED could not apply for police custody since the matter after Justice CV Karthikeyan’s ruling was again placed before the division bench to decide the day from which 15 days would start.

“We can’t go take police custody because a third judge has said that division will decide from when the 15th day will start. What has happened in that the 3rd judge has said that from when 15 days will start will be decided by the Division bench,” Mehta said.

While referring to section 19 of PMLA he said that ED can exercise police powers.

“I am not putting this as a right to investigate but it is my duty to investigate. It’s our case that the accused has taken the system on a joy ride,” Mehta further said.