Supreme Court issues notice to ED on plea by Senthil Balaji against HC order on custody

The Supreme Court on Friday issued notice to the Enforcement Directorate on a plea by Tamil Nadu minister V Senthil Balaji and his wife against the Madras High Court order allowing his custody in connection with the cash-for-jobs scam.

Appearing for Balaji, senior advocate Kapil Sibal submitted before a bench of Justices A S Bopanna and M M Sundresh that there are a lot of issues which have to be considered by the court -- there was a split verdict by a bench of two judges, then a third judge settled the conflicting view – and now the matter is before this court.

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He said, ED officers cannot take his client under custody under Section 167 of Criminal Procedure Code as they are not police officers and therefore, the petitioner will have to be sent to judicial custody. He also submitted that his client was in the hospital for 15 days, which must be excluded.

Representing the ED, Solicitor General Tushar Mehta said the Prevention of Money Laundering Act (PMLA) does not provide for judicial custody.

"To arrest a person just to send that person into judicial custody does not make sense and the entire point of arrest will become futile," he said.

He pointed out the 15 days period is over and he was in the hospital throughout. As the High Court held that the ED had the right to take him into custody, it is its duty of the agency to investigate the matter, he contended.

The court, while seeking a response from the ED, put the matter for hearing on July 26.

During the hearing, Sibal sought interim protection from police custody for Balaji.

Mehta, for his part, said the ED can't take him in police custody because the third judge has said that the division bench will decide from when the 15th day will begin. On this, Sibal asked if the division bench decides against his client, where he would go.

The court, however, said nothing will happen and fixed the matter for hearing on July 26.

The special leave petitions filed by Balaji and his wife Megala challenged the validity of the Madras High Court's orders of July 14 and July 4, dismissing a habeas corpus petition as not maintainable.

A single judge bench had on July 14 concurred with a view of the one of the division judge bench expressed on July 4, allowing the ED to take Balaji into custody for probe into the scam during his tenure as Transport Minister between 2011 and 2016.

In their plea, the petitioners sought a direction to stay both the orders, contending ED is not police and has got no right to seek custody. In Balaji's matter, the period of 15 days from the date of arrest is over and the ED cannot now seek his custody. It also stated the entire arrest and remand in the case were illegal and contrary to law.