SC allows ED to take custody of Tamil Nadu minister Senthil Balaji

The ED arrested the minister on June 14 in a money laundering case related to cash-for-job scam.

The Supreme Court on Monday allowed the Enforcement Directorate to remand Tamil Nadu Minister V Senthil Balaji into custody till August 12, by holding that no habeas corpus plea would be maintainable if a person is produced before a judicial officer within 24 hours of arrest.

A bench of Justices A S Bopanna and M M Sundresh dismissed the plea filed by Balaji and his wife Megala challenging the Madras High Court's judgment allowing ED custody of the DMK leader.

The bench, however, referred the matter to the Chief Justice of India to set up a bigger bench to decide the larger issue of the actual import of Section 167(2) of the CrPC, 1973 as to whether the 15 days period of custody in favour of the police should be only within the first 15 days of remand or spanning over the entire period of investigation of 60 or 90 days (of filing the charge sheet), as a whole.

The top court also ruled no prior notice under Section 41A of the Criminal Procedure Code was required to be issued to the accused by the Enforcement Directorate officer.

"An authorized officer under PMLA is not duty bound to follow the rigour of Section 41A as under Section 19 of the PMLA, there is already an exhaustive procedure containing sufficient safeguards in favour of the person arrested," the bench said.

The bench also said when a person arrested is forwarded to the jurisdictional magistrate within 24 hours of arrest), no writ of habeas corpus would lie.

"Any plea of illegal arrest is to be made before such magistrate since custody becomes judicial," it said.

The court also said an order of remand has to be challenged only before a higher forum as provided under the CrPC.

The court also rejected a contention made by the counsel of Balaji that the ED sleuths are ‘police officers’ so they cannot use Section 167(2) of the Criminal Procedure Code to seek police remand, saying one cannot say that the provision is applicable to an authority when it comes to arrest but not to custody.

The bench also said one cannot apply Section 167(2), which authorises police to take custody and remand, piecemeal.

The court also rejected another contention of the petitioners that police custody can be granted within the first 15 days of custody.

"The proviso merely reiterates the maximum period of 15 days, qua a custody in favour of the police while there is absolutely no mention of the first 15 days alone for the police custody," the bench said.

The court said its previous decision in CBI vs Anupam J Kulkarni (1992) on custody remand within 15 days of arrest was required to be reconsidered by a larger bench.

The ED arrested the minister on June 14 in a money laundering case related to a cash-for-job scam. Immediately thereafter, the minister complained of chest pain and he was admitted to a hospital.

Thereafter, he underwent coronary artery bypass at Chennai’s Kauvery Hospital.

The Supreme Court had in May 2023 allowed the CBI and the ED to quiz him in the cash-for-job case during his tenure as Transport Minister between 2011 and 2016.