2 weeks Ago By R Sivakumar
CHENNAI: Stating that the allegations and complaint against the Tamil Nadu State Marketing Corporation (Tasmac) are ‘grave in nature’ and warrants ‘deeper investigation’, the Madras High Court on Wednesday cleared the decks for the Enforcement Directorate (ED) to proceed with the probe by dismissing the petitions filed by Tasmac and the state government against the raids conducted on the retail liquor business entity.A bench of Justices S M Subramaniam and K Rajasekar negated the contentions raised by the petitioners, including non-furnishing of “reasons to believe” the commission of the offence, and the FIRs relied upon by the agency for proceeding under the Prevention of Money Laundering Act (PMLA), violations of principles of federalism, political motive and violation of human rights of employees, particularly women.The court said the fact that ED had recorded the reasons to believe the commission of the offence of generating proceeds of crime in writing, as explicitly mandated under Section 17 of PMLA, on information in possession is sufficient to conduct search.
Sufficiency of adequacy of the information cannot be gone into by the court at this stage, it said“On examination of Section 17, there is no explicit procedure stipulated that the copy of reasons to believe must be served on the person on whom search is conducted,” it said.Stating that the court cannot order producing a copy of the reasons to believe, the bench said, “Such omnibus direction that all searches must be conducted serving a copy of reason to believe might lead to concealment or destruction of evidence, thereby jeopardising the investigation.”Further, it explained, Section 17 nowhere obligates giving a copy of search warrant.
It is merely produced to get the authorisation of the person in-charge of the building before conducting a search.“It is to be noted that prior to the 2019 amendment, Section 17 required that no search could be conducted without an FIR or a report being forwarded to a magistrate. This provision was deleted in 2019, removing the FIR requirement for conducting search and seizure under PMLA,” the bench said.
Referring to the argument of unlawful detention of officers, the bench said the employees, during a search, would be detained to “prevent leakage of information” and also to “prevent destruction” of evidence.Human rights violationsThe bench found “no sound evidence or material” to prove the allegations of forced confinement and human rights violations which were raised as an “after thought”.Noting that individuals could have approached the court if they felt aggrieved, the bench said, “Neither the TN government nor Tasmac is the aggrieved party here.
It is shocking that a state government filed a petition stating it has been aggrieved. This raises questions as to whether this present petition was filed to obstruct the smooth conduct of the investigation.”Women as shield“On examination of facts and materials, this court finds it unfortunate that women officers and employees are used as shields to prevent investigations from proceeding,” the bench remarked, adding that the right to privacy under Article 21 of the Constitution is subject to “reasonable restrictions.
”It said the contention of the petitioners that ED has to call upon only the designated officers of the state authorised and notified under Section 54 (j) of PMLA to assist the agency is unacceptable and a completely wrong interpretation.Pointing to the contention that the search was held due to political motive, the bench asked whether a court can go and examine the political forces at play or be a partaker in the political game. “Definitely not,” it said.
Senior counsels Vikram Chaudhari and Vikas Singh represented Tasmac and Advocate General PS Raman appeared for the state government, while Additional Solicitor Generals (ASGs) S V Raju and A R L Sundaresan appeared for the ED.Can’t order to give copy of ‘reasons to believe’Stating that the court cannot order producing a copy of the reasons to believe, the bench said, “Such omnibus direction that all searches must be conducted serving a copy of reason to believe might lead to concealment or destruction of evidence.”.
