Madras High Court: In a habeas corpus petition filed by Megala, wife of V Senthil Balaji, Minister for Electricity, Prohibition & Excise, Tamil Nadu against his arrest by the Directorate of Enforcement (‘ED’) for money laundering in cash for job scam case, the division bench of J Nisha Banu and Justice Bharatha Chakravarthy, JJ. delivered a split verdict. Further, placed the matter before the Chief Justice for further orders.
Background:
It was alleged that during 2014, while officiating as a transport minister, Senthil Balaji had obtained money from third parties promising jobs in the Transport Department and thereafter cheated them. Based on the said offences, a case is registered by the ED under Section 4 of the Prevention of Money Laundering Act, 2002 (‘PMLA’) and he was arrested on 14-06-2023.
Megala complained that Notice under Section 41-A of the Code of Criminal Procedure, 1973 (‘CrPC’) was not issued to Senthil Balaji and the grounds of arrest was not informed to him at the time of arrest. Further, he was not permitted to avail the right to consent a legal counsel in violation of Article 22(1) of the Constitution of India. She also alleged that the Officers descended into the official house of Senthil Balaji without notice at about 7.30 AM on 13-06-2023 and started interrogating him for about 16 hours without food and water, thus during the proceedings he fell sick, suffered severe chest pain and breathing trouble and he was admitted to the Tamil Nadu Government Multi Super speciality hospital. It was further contended that Senthil Balaji was illegally detained in his house and was not allowed to meet anyone.
Issues:
• Whether or not a writ of habeas corpus would be maintainable after passing of judicial order of remand of the detenu and if so, on what premises?
Justice D. Bharatha Chakravarthy reiterated that the habeas corpus petition is only directed against the executive or parties who are or who authorised the custody of the detenu, to produce them before the Court and set the detenu at liberty, if such custody is illegal and not authorised by law. Further, the order of remand is a judicial function and therefore, on exercise of such judicial function, normally, the habeas corpus petition is not maintainable. Such authorisation of valid custody can even be subsequent to the alleged act of illegal detention or even be subsequent to the filing of the habeas corpus petition, but, if on the date of return of notice / taking up the habeas corpus for consideration, if the detention is or becomes legal, then, other questions would no longer be the concern of the Court in the petition.
Justice Chakravarthy said that the illegalities or the procedural violations etc., in respect of the said judicial order of remand can only be canvassed by way of appropriate appeal or revision proceedings under the Code of Criminal Procedure and not in the habeas corpus petition. However, after placing reliance on Madhu Limaye, In re, (1969) 1 SCC 292; Manubhai Ratilal Patel v. State of Gujarat, (2013) 1 SCC 314 and Gautam Navlakha v. National Investigation Agency, 2021 SCC OnLine SC 382, wherein it was said that absolute illegality, total non-application of mind or lack or jurisdiction and wholesale disregard to the fundamental rights in a given facts and circumstances of a case would be an exception where in the habeas corpus petition, the Court can examine the illegality of arrest and detention.
Thus, Justice Chakravarthy held that a Habeas Corpus petition agitating to produce the detenu and set him at liberty normally would not be maintainable after the order of judicial remand, but, only under the exceptional circumstances of absolute illegality as state above, it is maintainable.
• Whether Megala had made out a case for exercise of powers under Article 226 of the Constitution of India to set Senthil Balaji free?
Violation of Article 22(1) of the Constitution:
Concerning the allegation that the grounds of arrest were not informed to Senthil Balaji, Justice Chakravarthy noted that the Enforcement Case Information Report (‘ECIR’) was recorded on 29-07-2021 and repeated summons have been sent, on which the Senthil Balaji has replied. However, still it is ED’s duty to inform the grounds of arrest.
The State contended that the reasons for arrest were orally informed and when it was attempted to be served, Senthil Balaji did not accept the same. Justice Chakravarthy said that there is no ground to discard the veracity in the averment made on behalf of the officials from the very nature of the allegations in this case that there was non-cooperation, threat and allegation of manhandling leading to a drama at the time of arrest. Further, he noted that copies of e-mails were sent to the Senthil Balaji’s relatives including his wife. Therefore, there was due compliance of Article 22 of the Constitution of India and the provisions in the Code of Criminal Procedure relating to the same in this regard.
Non-following of Sections 41 and 41-A of CrPC
After taking note of Section 41, 41-A of CrPC, Justice Chakravarthy said that if there is a special enactment or special provision contained in respect of any particular purpose, then that special provision will apply. Wherever the special enactment does not contain specific provisions, then the provisions of the Code of Criminal Procedure would apply. The Code of Criminal Procedure and PMLA are thus clearly and categorically harmonious.
He said that a specific provision and special procedure is made in Section 19 of PMLA, wherein, the power of arrest is vested in Director, Deputy Director or any other officer authorised by the Central Government and it must be on the basis of the material in his possession and he must have reason to believe and such belief is to be recorded in writing that a person may be guilty of an offence punishable under the Act and he may arrest such a person by informing him on the grounds of the arrest. Additionally, such officer should also forward the copy of the order along with material in his possession to the adjudicating authority in a sealed envelope and that the person so arrested shall be produced before the Special Court or Magistrate having jurisdiction, within a period of 24 hours.
Further, after placing reliance on Vijay Madanlal Choudhary v. Union of India, 2022 SCC OnLine SC 929, Justice Chakravarthy reiterated that the special provision in the form of Section 19 adequately safeguards the interests of the accused and thus, the express application of Sections 41 and 41-A of CP.C., stood negated in respect of the offence under PMLA. However, after taking note of Satender Kumar Antil v. CBI, (2022) 10 SCC 51, wherein it was held that the requirements under Sections 41 and 41-A of CrPC., are facets of Article 21 of the Constitution of India. He concluded that per se, it is only Section 19 of PMLA that is the substantive provision enabling the arrest and prescribes the special procedure and therefore Sections 41 and 41-A CrPC, are not expressly applicable. However, the principles underlying Sections 41 and 41-A of CrPC, are to be extrapolated and read into Section 19 of PMLA also. Thus, in each and every case it is not mandatory to arrest the accused, and the officers exercising powers under Section 19, have to satisfy the ingredients as mentioned in Section 41(1)(b) of CrPC, and in all the other cases, the arrest procedure need not be resorted to as the investigation can be carried on by issuing summons directing them to provide details.
Justice Chakravarthy said that, in the present case, Senthil Balaji behaved in an intimidating manner, did not furnish the particulars which were necessary to trace out the money trail relating to the offence and was hampering the investigation. Therefore, on more than one ground mentioned in Section 41(1)(b) of CrPC the arrest was necessary. Thus, even in the absence of specific application, substantially the requirements under Section 41 and 41-A of CrPC., stood complied in the instant case
Non-application of mind at the time of remand:
Justice Chakravarthy said that that even though the procedure adopted by the Principal Sessions Judge could have been better, substantive compliance relating to the application of mind as to the compliance of the Article 22 of the Constitution of India, Section 19 of PMLA for arrest and consideration of other apprehensions expressed by Senthil Balaji were present. Therefore, the exercise of power cannot be termed as “absolute mechanical manner” or “total non-application of mind”.
Concerning the submissions relating to the manipulation of the grounds of arrest, he said that the grounds of arrest were ready at the time of arrest and the Investigating Officer had to write by hand in the morning after sending the e-mails. The only irregularity is that such writing should be an endorsement below the signature, by duly entering the time of endorsement. Such an inadvertent error cannot make the entire grounds of arrest unbelievable, and when the Presiding Officer made a categorical statement that she has perused the grounds of arrest, the same cannot be said to be imaginary.
Therefore, Justice Chakravarthy held that this is not a case of patent illegality or absolute nonapplication of mind or case of lack of jurisdiction to grant relief to Senthil Balaji.
• Whether the period from the moment of arrest on 14-06-2023, whereby, Senthil Balaji was admitted in the Hospital till his discharge to be excluded while computing the time of initial 15 days from the date of remand to judicial custody under Section 167 of CrPC, to entrust him for the custody of the respondents?
Concerning the contention that ED officials are not Police officer to seek custody, Justice Chakravarthy said that under Section 167(2) of CrPC., the phrase used is “authorise detention of the accused in such custody as the Magistrate thinks fit”. Therefore, the word “Police” is not even specifically used. After taking note of Section 65 read with Section 4(2) and 5 of CrPC., said that in respect of the investigation of the offences under PMLA, since no other contrary or separate procedure is contained under it, the provisions relating to investigation would be applicable to the offences relating to PMLA. Thus, as per Justice Chakravarthy Section 167 CrPC, should be applicable and therefore, the word “Police” has to be read as Investigating Agency or the Enforcement Directorate.
Thus, he held that merely because the express provision to act as Station House Officer is absent, the same will not in any manner disentitle the ED from asking for custody. Therefore, ED officers were entitled to ask for custody.
Further, he said that after the arrest and before the production before the Principal Sessions Judge and after the remand, not even for a minute, Senthil Balaji was available to ED for custodial interrogation. In the offences like PMLA, especially in this case, when money trail is difficult to be unearthed on account of huge advancement of technology, it is extremely essential to unearth the truth and custodial interrogation is significant.
Thus, Justice Chakravarthy said that when the first 15 days went in the Hospital for Senthil Balaji’s own benefit, then the benefit of custodial interrogation cannot be denied in its entirety to ED.
Justice Chakravarthy held that the time spent by Senthil Balaji in the Hospital, only such time till he is not in a position to be fit to be interrogated has to be excluded from the initial 15 days time for grant of custody to ED.
• What reliefs are to be granted in the present Habeas Corpus Petition?
Considering the fact that Senthil Balaji has undergone surgery and he can continue to undergo the treatment at the Cauvery Hospital for a period of another 10 days. Justice Chakravarthy said that if Senthil Balaji needs treatment even after the 10th day, the same shall be continued at the Prison Hospital and his physician / surgeon can also visit him there and continue the treatment.
[Megala v. State, 2023 SCC OnLine Mad 4371, decided on 04-07-2023]
Advocates who appeared in this case :
For Petitioner: Senior Advocate Mukul Rohatgi, Senior Advocate N.R. Elango;
For Respondents: Solicitor General of India, Tushar Mehta, Special Counsel, ED Zoheb Hossain, Additional. Solicitor General of India A.R.L. Sundaresan, SPP-ED N. Ramesh.
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