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.
Justice Nisha Banu reiterated that the right to liberty and the safeguards against unlawful detention enshrined under Articles 20, 21 and 22 of the Constitution of India is a fundamental right that is absolute and non-negotiable. Depriving such a valuable right should be resorted to only in exceptional circumstances.
Maintenance of Habeas Corpus Petition:
Justice Nisha Banu said that habeas corpus petition is a test of the validity of the actions of the executive and more particularly a test of legality of detention by the executive. As per the State once a legal remand order which is judicial in nature is passed then there is no way habeas corpus petition will lie and the only remedy available to the detenu is to contest and set aside the remand order. Justice Banu said that in preventive detentions where cause of action is continuous, only the legality of the remand order on the date of hearing is relevant. In other cases, failure to follow the procedural safeguards, violating Article 22 will vitiate the arrest proceedings and render the remand order, if mechanically passed, also illegal. Thus, the test of the legality of a remand order shall be on the date of hearing, to entertain the habeas corpus petition.
Justice Banu noted that Senthil Balaji was remanded to judicial custody on 14-06-2023. After the commencement of hearing this habeas corpus petition, the Principal Sessions Judge
(‘PSJ’) had on 16-06-2023 remanded Senthil Balaji in Police Custody (Custody of ED) for a period of 8 days with some conditions. She said that ED is not entitled to custodial interrogation of accused under the PMLA, 2002. Therefore, the order of custody dated 16-06-2023 passed by the PSJ is without jurisdiction and without authority of law and therefore is illegal. The order fails the test of legality both of law and omission to follow judicial discipline. Thus, as the detention at the time of hearing the habeas corpus petition is illegal, the petition is maintainable.
Whether ED has the power to seek custody of the persons arrested
Concerning the contention of Megala that ED is not entitled for police custody as they are not police officers empowered under Section 167 Code of Criminal Procedure, 1973 (‘CrPC’) in as much as the Prevention of Money Laundering Act, 2002 (‘PMLA’) does not entrust the ED officers with the powers to act as officer in charge of police station as defined under Sec 2(o) of CrPC, Justice Nisha Banu said that CrPC governs the operations of all investigations including the powers of arrest search and seizure. However, all these powers are also entrusted to the officers enforcing the special acts like NDPS, Customs, FERA, PMLA etc under the said acts. Usually, the officers who file final report under Section 173 CrPC after completion of investigation are police officers. The officers under special laws usually file complaint under Section 200 of CrPC after investigations. However, this alone is not the test to determine whether a particular officer has the powers of a police officer or not, though it is the dominant test.
Justice Banu took note of Vijay Madanlal Choudhary v. Union of India, 2022 SCC OnLine SC 929, wherein the Court held that ED Officials under PMLA, 2002 are not police officers. Further, after referring to Rule 637 of the Tamil Nadu Police Standing Order, Justice Banu said that under Section 167, police custody can be given by a magistrate only to an officer who is competent to function as a Station House Officer. Under the PMLA, 2022, the ED Officers are not vested with the power to act as Station House Officers unlike in Customs Act, 1962, Central Excise Act, 1944 and even FERA.
Justice Banu reiterated that no custody of any kind is permissible under the constitutional and statutory scheme except through the procedure established by law. She viewed that unless the ED Officers are conferred with the powers of the Officer in Charge of a Police Station under PMLA, 2002 within the meaning of Section 167 and 2(o) of CrPC, police custody to ED under PMLA is impermissible. Thus, the officers empowered to arrest under Section 19 of PMLA, 2002, are required to produce the accused to the competent court within 24 hours of arrest and seek only Judicial remand and the same may be ordered by the judicial magistrate under the extant provisions of the Act. In effect, ED cannot hold custody of any person beyond the first 24 hours of arrest.
Exclusion of Time
Justice Banu reiterated that the period of police custody cannot be extended beyond 15 days from the date of the initial remand in terms of Article 22 and the relevant provisions of CrPC. However, she noted that in CBI v. Vikas Mishra, (2023) 6 SCC 49, the Court had deviated from a stricter view, as t was an extraordinary situation where the accused by unscrupulous methods schemed to frustrate investigation by abusing the constitutional safeguard prompting the Court to invoke its discretionary powers to allow custodial interrogation beyond 15 days.
Justice Banu further said that such circumstances does not seem to exist in the present case as the ailment of Senthil Balaji appears genuine and he has undergone a bypass surgery. Thus, she refused to exclude the period of treatment undergone by Balaji while calculating the period for custodial interrogation.
[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.