CHENNAI: Law has empowered the Enforcement Directorate (ED) only to ‘inquire’, and not to investigate. And the central agency has no power to seek custody of an accused either, argued senior advocate Kapil Sibal, representing TN Minister V Senthil Balaji in Madras high court on Tuesday.
The legal status of the ED has been clarified by the Supreme Court and it cannot seek custody of the accused, Sibal told Justice C V Karthikeyan, the third judge appointed to decide the legality of the minister’s arrest by the ED.
“Then how do we categorise the ED?” Justice Karthikeyan wondered. To this, Kapil Sibal replied, “the Supreme Court has said that ED could conduct only an inquiry under the PMLA. A food safety officer is not a police officer. There are many statutes where an inquiry is conducted but they are not police.” The object of the PMLA is regulatory, he added.
As for the power to arrest, Kapil Sibal submitted that the power of arrest conferred to ED was not under the Code of Criminal Procedure (CrPC), but under a special statue Prevention of Money Laundering Act (PMLA).
“Under Section 19 of PMLA, ED has to write down the reasons for the arrest, keep it in a sealed cover and send it to the adjudicating authority. The arrested person must be produced before a magistrate within 24 hours. Only till such time ED can keep a person in their custody,” Kapil Sibal said.
As to the ED’s prayer to exclude the hospitalisation period for considering custody application, Kapil Sibal said, “doctors permitted interrogation in the hospital, but the ED did not do so citing that interrogation could not be done in an effective manner in the hospital.”They chose not to execute the custody order. They could have interrogated either in their custody or in the court’s custody. But they did not do so, he added.
Supporting the arguments, senior advocate N R Elango submitted that under the PMLA there should be evidence to prove that a person to be arrested is guilty of an offence. ED has to satisfactorily conclude that the person is guilty of an offence before resorting to arrest. They are not provided with the powers of police because they are elevated to the level of judge, he said.
As to the remand order passed by the sessions judge, Elango said, “the remand order was passed without application of mind. The judge had failed to consider application of rejection of remand. The minister was not informed of the grounds of arrest.”
To this, Justice Karthikeyan pointed out that it was the minister who refused to accept the grounds provided by the ED. The minister has to abide by the rule of law. When the grounds of arrest were informed, he was unwilling to hear it, he said. In response, Elango said ED claimed the arrest was made as he did not cooperate. But during the search it has given a sworn statement showing that he had cooperated.
Recording the submissions, Justice Karthikeyan adjourned the hearing to July 12 for solicitor-general Tushar Mehta to commence his arguments on behalf of the ED.


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