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SC bins petitions challenging TN minister’s arrest, says habeas corpus plea maintainable only when detention illegal

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NEW DELHI, Aug 7 (PTI): The Supreme Court dismissed on Monday the petitions filed by Tamil Nadu minister V Senthil Balaji and his wife challenging a Madras High Court order upholding his arrest in a money laundering case, holding a remand order passed by a judicial officer cannot be contested under the guise of a habeas corpus plea.

It said a habeas corpus plea can be filed only in case of illegal detention.

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A habeas corpus petition is filed to ensure a person under arrest is brought before a court which determines whether the detention is legal.

Balaji, who continues to be a minister without portfolio in the Tamil Nadu government even after his arrest on June 14, and his wife had contested a Madras High Court order upholding his arrest by the Enforcement Directorate (ED) in a money laundering case arising out of an alleged cash-for-jobs scam in the state’s transport department.

“A writ of habeas corpus shall only be issued when the detention is illegal. As a matter of rule, an order of remand by a judicial officer, culminating into a judicial function cannot be challenged by way of a writ of habeas corpus, while it is open to the person aggrieved to seek other statutory

“When there is a non-compliance of the mandatory provisions along with a total non-application of mind, there may be a case for entertaining a writ of Habeas Corpus and that too by way of a challenge,” a bench of Justices A S Bopanna and M M Sundresh said.

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Noting that the 15-day custody of Balaji, which the Principal Sessions Judge granted to ED, expires on August 12, the top court court permitted the anti-money laundering agency to interrogate him for five days. Balaji was hospitalised for a heart surgery during the remand period.

The bench said admittedly, physical custody of Balaji was not given to the central agency as he was in hospital.

“Admission of the appellant to the hospital of his choice cannot be termed as a physical custody in favour of the respondents (ED). Custody could not be taken on the basis of the interim order passed by the High Court which certainly shall not come in the way of calculating the period of 15 days.

“An investigating agency is expected to be given a reasonable freedom to do its part. To say that the respondents ought to have examined the appellant in the hospital, and that too with the permission of the doctors, can never be termed as an adequate compliance,” the bench said.

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Elaborating on the applicability of habeas corpus plea, the top court said in a case where the mandate of Section 167 of the CrPC, 1973 and Section 19 of the Prevention of Money Laundering Act, 2002 are totally ignored by a cryptic order, a habeas corpus petition may be entertained, provided a challenge is specifically made.

“However, an order passed by a Magistrate giving reasons for a remand can only be tested in the manner provided under the statute and not by invoking Article 226 of the Constitution of India, 1950.

“There is a difference between a detention becoming illegal for not following the statutory mandate and wrong or inadequate reasons provided in a judicial order. While in the former case a writ of habeas corpus may be entertained, in the latter the only remedy available is to seek a relief statutorily given,” the court said in its 87-page judgement.

Balaji’s wife Megala had filed a habeas corpus petition in the Madras High Court calling his detention “illegal”.

The apex court said the Prevention of Money Laundering Act (PMLA), 2002 being a sui generis (unique) legislation, has its own mechanism to deal with arrest in the light of its objectives.

“The concern of the PMLA, 2002 is to prevent money laundering, make adequate recovery and punish the offender. That is the reason why a comprehensive procedure for summons, searches, and seizures etc., has been clearly stipulated under Chapter V of the PMLA, 2002.

“An arrest shall only be made after due compliance of the relevant provisions including Section 19 of the PMLA, 2002. Therefore, there is absolutely no need to follow and adopt Section 41A (Notice of appearance before police officer) of the CrPC, 1973 especially in the teeth of Section 65 of the PMLA, 2002,” the bench said.

In the absence of any mandate, one cannot force the authorised officer to ensure due compliance of Section 41A of the CrPC, 1973, especially when a clear, different and distinct methodology is available under the PMLA, 2002, it said.

“Following Section 41A of the CrPC, 1973 for an arrest under the PMLA, 2002 would only defeat and destroy the very inquiry/investigation under the PMLA, 2002. Till summons are issued to a person, he is not expected to be in the know-how. Any prior intimation, other than what is mandated under the PMLA, 1973 might seriously impair the ongoing investigation,” the bench said.

The top court also referred to a larger bench the issue whether the 15-day period of custody in favour of police should be only within the first 15 days of remand or spanning over the entire period of investigation – 60 or 90 days.

Besides upholding the arrest of the minister, the high court had held as valid his subsequent remand in judicial custody by a sessions court in the money laundering case arising from the alleged scam in the state’s transport department when he was the transport minister.

According to the complainant, he had given Rs 2.40 lakh for securing a job in a state-run transport corporation. The high court order that upheld Balaji’s arrest said this was the specific offence of bribery for which an FIR was filed, after which the ED had registered the Enforcement Case Information Report (the ED’s version of FIR).

The ED had subsequently arrested Balaji.

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