Madras High Court Chief Justice S.V. Gangapurwala has appointed Justice C.V. Karthikeyan as the third Judge to hear a habeas corpus petition (HCP) filed by the wife of Minister V. Senthilbalaji, who was arrested by the Directorate of Enforcement (ED) on June 14, 2023, in a money laundering case and remains in a private hospital now, in judicial custody.

The necessity for naming a third judge to hear the case afresh had arisen pursuant to a split verdict delivered by a Division Bench of Justices J. Nisha Banu and Justices D. Bharatha Chakravarthy on July 4. Justice Karthikeyan will hear the arguments afresh and his decision will tilt the verdict by a majority of 2:1.

Justice Nisha Banu had held the HCP to be maintainable, declared the Minister’s detention to be illegal and consequently ordered his release forthwith. However, Justice D. Bharatha Chakravarthy disagreed with the conclusions as well as reasons given by the senior Judge in the Bench. He dismissed the HCP and held it to be not maintainable.

Penning down reasons for her conclusions, Justice Banu wrote that the relevant date for deciding whether a person’s detention was legal or not would be the date when the HCP related to his detention gets heard by the court. In the present case, the Minister was already in the custody of the ED when the HCP was heard on June 22, and this custody was illegal, she said.

The Judge pointed out that the Division Bench led by her had passed an order on June 15 to shift the Minister from a government hospital to a private hospital for a heart surgery. Then, the Bench had made it abundantly clear that the Minister would remain in judicial custody even after being shifted to the private hospital.

Despite such a categorical order, the ED had approached the Principal Sessions Court in Chennai seeking permission to take the Minister into their custody for interrogation and the Sessions Court too had granted permission for custody of eight days on June 16 though in law, ED officials have no authority whatsoever to take any person into their custody, Justice Banu said.

She said, the Parliament had consciously not empowered ED officials to keep an accused person in a money laundering case in custody beyond 24 hours of his/her arrest possibly because the evidences in such cases were predominantly documentary in nature and they could be collected easily from banking channels using the sweeping powers conferred on the investigators.

“Therefore, the order of custody dated June 16, 2023 passed by the sessions judge 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 and I have no hesitation to hold that the detention at the time of hearing of this HCP is illegal,” Justice Banu concluded.

She did not deal with the habeas corpus petitioner’s other grounds, such as the failure of the ED officials to follow the procedures at the time of arrest, since it would be an unnecessary exercise after having ruled that the detention at the time of hearing of the HCP was illegal and that the Minister was entitled to be set at liberty forthwith.

In his dissenting verdict, Justice Chakravarthy cited a slew of Supreme Court verdicts and stated that an HCP could be entertained, after the passing of a judicial remand order, only in cases of absolute illegality or total non application of mind on the part of the detaining authority or lack of jurisdiction or wholesale disregard to fundamental rights.

No such exceptional circumstance had arisen in the present case since the ED had categorically stated that the Minister refused to receive the grounds of arrest at 1:39 am on June 14 though a perusal of the document clearly showed the details of the money laundering case registered against him as well as the reasons for resorting to arrest.

“From the very nature of the allegations in this case that there was non-cooperation and threat and allegation of manhandling leading to a drama at the time of arrest, it can be prima facie concluded that there is no ground to discard the veracity in the averment made on behalf of the respondent (ED) officials,” the Judge wrote.

After perusing the SMS and emails sent by the ED officials to the Minister’s family members intimating his arrest and the judicial remand order too, wherein the sessions judge had recorded that she intimated him about the grounds of arrest, Justice Chakravarthy was convinced that the procedures were followed scrupulously.

He went on to state, “On a perusal of the counter affidavit, it would be clear that the accused behaved in a manner so as to intimidate the Investigating officer and did not furnish particulars necessary to trace out the money trail relating to the offence. He was also hampering the investigation. Therefore, on more than one ground, the arrest was necessary.”

Justice Chakravarthy, however, agreed with senior counsel N.R. Elango, representing the petitioner, that the Principal Sessions Judge ought to have considered the objections raised by the Minister before remanding him in judicial custody on June 14 instead of remanding him first and then citing that as a reason to reject the objections.

“In this case, the procedure otherwise is incorrect. But, the factual scenario on hand is that the learned session judge visited the hospital and authorised the judicial custody after examining his condition and the grounds of arrest… Therefore, the violation complained is only of procedure and becomes technical in nature,” the Judge observed.

Observing that unearthing the money trail was a difficult task in view of advancements of technology that pave the way for wire transfers and off-shore investments, the Judge made it clear that the ED would be entitled to subject the Minister to custodial interrogation after he becomes medically fit to undergo such an interrogation.

Taking into consideration that the Minister had undergone a heart surgery on June 22, the Judge ordered that he could continue to be in the private hospital for only 10 more days or until discharge, whichever was earlier, and thereafter, he must be treated only in a prison hospital where his physicians could visit and continue his follow-up care.

Before concluding his verdict, Justice Chakravarthy expressed displeasure over the ED officials having approached the sessions judge on June 16 to subject the Minister to custodial interrogation though Justice Banu and he had, on June 15, ordered the shifting of the Minister to a private hospital.

“I leave the respondents (ED) with the question as to whether it was fair and proper?” he wrote.