16-hour showdown in Madras High Court: High stakes duel over Tamil Nadu minister V Senthil Balaji’s controversial ED arrest

Balaji chose a private hospital in Chennai, his preferred choice, where the surgery took place last week. Questioning the validity of the minister’s health in the High Court, the ED petitioned for his detention and took firm steps against Balaji’s surgery in the private hospital.

In the ensuing courtroom drama, Mehta, who is representing ED, and Rohatgi, who is representing Balaji’s wife, present their cases before a panel of Judges J Nisha Banu and D Bharatha Chakravarthy on Monday and Tuesday.

Central to the case was the question of whether the emergency department had the power to arrest without prior notice of the arrest and the subsequent right to request the detention of the arrested person. Mehta defended the agency’s position, arguing that under the Prevention of Money Laundering Act (PMLA), the ED has sweeping power to arrest a person, if it believes the person is punishable under the law.

Balaji’s wife, in a further petition before the court, detailed alleged violations of procedures and laws in the arrest, detention and subsequent detention of the minister by the emergency department. She said the arrest operation was carried out by the Emergency Department with the help of the Rapid Action Force.

His friends and relatives, who were present there, were kicked out of the house and the main gates were locked and closely guarded by the Rapid Action Force. No one knew what was going on inside the house from 13th June 2023, 7.45am until 14th June, 2am. 2:30 am, he was taken to Omandurar Government General Hospital, Chennai and admitted by the emergency department themselves, due to complaints of chest pain,” it said in its petition.

Balaji’s wife also complained that the arrest violated Sections 41, 41A, 50 and 50A of the Criminal Procedure Act 1973, Sections 19 of the Money Laundering Prevention Act, and Sections 21 and 22(1) of the Constitution of India. It also said that Balaji’s remand in judicial custody by a Main Sessions Court judge was “carried out without regard” to Balaji’s objections and due process.

It alleged a contradiction in the main sessions judge’s orders regarding Balaji’s cooperation during the investigation. The petition noted, “One order grants police custody to Ed, asserting Balaji’s non-cooperation, while another denial of bail petition records that Balaji did indeed cooperate.”

The ED’s allegation that Balaji refused to receive the arrest warrant, thus delaying the arrest, was also challenged by Panchanama records, which were against the ED’s allegation as the search ended much earlier than the arrest.

The wife also questioned the validity of the ED’s request for custody under Section 167 of the Code of Criminal Procedure (CrPC), arguing that only a police officer is authorized to do so and that emergency department officials are not considered police. In her petition, she said, “In accordance with Section 19 of the Prevention of Money Laundering Act 2002, a person’s detention in the emergency department cannot exceed 24 hours after arrest.”

According to Solicitor General Mehta, there was a clear distinction between arresting power under the SLA and the CCP. He argued that a pre-arrest notice under Article 41 of the Code of Criminal Procedure was only required when the division did not want a person to be arrested. Conversely, in this case, the agency intended to arrest Balaji from the start. Under the SPLA, he said, a person could be arrested to prevent them from destroying potential evidence.

On the charges of failing to report the arrest during the arrest proceedings, Mehta said the law demanded that the reasons for the arrest be presented “as soon as possible”, not necessarily at the moment of the arrest. The session judge pointed out that the reasons were read to the minister during a visit to the hospital within 11 hours of the arrest.

Mehta also called on the court to exclude Balaji’s hospitalization period while considering the granting of custodial cross-examination, arguing that the conditions imposed by the Sessions Judge made effective cross-examination impossible.

Rohatgi, who is representing Balaji’s wife, said there is no legal provision that allows for the exclusion of the hospitalization period when consenting to interrogation while in detention. He strongly emphasized that “even in the event of an earthquake or a pandemic, interrogation in custody cannot be conducted 15 days after the arrest of the accused.” He noted that the 15-day deadline expired on June 28, leaving the emergency department without any legal grounds to request further interrogation while in detention.

Rohatgi also argued that the habeas corpus petition filed by Balaji’s wife was valid, since the arrest and pre-trial detention were carried out illegally and mechanically. He questioned the authority of the emergency department to request the reservation, stating that the agency does not operate as a traditional police force.

The legal scene, which includes two of the country’s leading lawyers, hinges on the Madras High Council’s interpretation of the legality of Balaji’s arrest. The final verdict, which is reserved for the time being, could not only set an important precedent in terms of ED powers and performance, but also concern Balaji and DMK. This is because anything against their arguments would mean a standby interrogation after Balaji regains his health, after a month or two or more, a scenario not favored by the ruling party as he is still a ‘minister without portfolio’ in the state government after his arrest.

The confirmation exchange concluded on Tuesday with the bench reserving its ruling and directing both advisors to submit their written submissions by June 28.