The Enforcement Directorate cannot hold an accused person in custody for more than 24 hours under the Prevention of Money Laundering Act, Justice J Nisha Banu of the Madras High Court held on Tuesday, reported Live Law.
The High Court bench comprising Justices Banu and Bharatha Chakravarthy had delivered a split verdict in a petition filed by the wife of jailed Dravida Munnetra Kazhagam leader V Senthil Balaji, alleging that he had been illegally detained by the Enforcement Directorate.
The division bench had said that the chief justice of the Madras High Court will give further orders on the matter. On Wednesday, Madras High Court Chief Justice SV Gangapurwala named Justice CV Karthikeyan as third judge to hear the petition against arrest Balaji’s arrest, reported Live Law.
Balaji was arrested by the Enforcement Directorate on June 14 on the allegations of conspiring with transport corporation officials to appoint candidates recommended by his aides. The agency has claimed that crores of rupees were taken as bribes from candidates in exchange for jobs.
At Tuesday’s hearing, Justice Banu said that the Enforcement Directorate officers empowered to arrest under the money laundering act are required to produce the accused person to the competent court within 24 hours of arrest and can only seek judicial remand, reported Live Law.
She said that usually police officers filed final report under Section 173 of the Code of Criminal Procedure (to complete investigation without unnecessary delay), while those empowered by special laws such as the Prevention of Money Laundering Act file their report under Section 200 of the Code of Criminal Procedure (duty of magistrate to question both the complainant and the witnesses in attendance).
“However, that 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,” she said. “The colour and character of the powers entrusted with the officers will determine whether the officers enforcing special enactments can be termed as police officers.”
Justice Banu observed that since custody heavily impinges on the fundamental right of citizens, it can only be granted under Section 167 of the Code of Criminal Procedure. According to the section, an accused person can be held in police custody for 15 days on the orders of a magistrate.
Justice Banu also said as per the Central Excise Act, 1944, the Central Goods and Services Tax Act, 2017, and the Foreign Exchange Regulation Act, 1973, shows that Section 167 of the Code of Criminal Procedure applies only to those officers who have the powers of a station house officer.
“Similar provisions to empower ED officers as station house officers are not provided under PMLA, 2002,” she added. “It appears that the Parliament has consciously omitted to confer with the ED Officers acting under PMLA, 2002, the power of a station house officer.”