Kochi: The Kerala High Court on Friday prevented the Enforcement Directorate (ED) and Customs from arresting suspended IAS officer and former Principal Secretary to Kerala chief minister, M Sivasankar, until it decides on his anticipatory bail petitions on October 28.
Sivasankar sought anticipatory bail from being arrested by the probe agencies in connection with cases related to the diplomatic baggage gold smuggling via Thiruvananthapuram airport.
The ED submitted evidence against Sivasankar in a sealed cover and argued that leaking the evidence would adversely affect the probe. The ED also argued that Sivsasankar could be the mastermind behind the gold smuggling conspiracy and could have made Swapna Suresh a pawn.
On Thursday, the special court of the National Investigation Agency (NIA) closed Sivasankar's anticipatory bail plea after the agency informed the court that it had no plan to arrest him.
While Customs and the NIA are investigating the smuggling of gold worth over Rs 100 crore through diplomatic baggage addressed to the UAE Consulate at Thiruvananthapuram since November last year, the ED is probing the money trail in the case.
The smuggling racket was busted when the Customs seized 30 kg of 24-carat gold worth Rs 14.82 crore at airport on July 5 this year.
Sivasankar was suspended after his links with prime accused in the case Swapna Suresh surfaced.
I am cooperating with the probe: Sivasankar
In his plea, Sivasankar had said, as a responsible government servant, he had extended maximum cooperation in the investigation of the offence.
The ED and Customs have not included the suspended IAS officer among the accused yet.
The High Court had earlier restrained the ED and Customs from arresting Sivasankar till October 23.
Seeking anticipatory bail in the case registered by the Customs, Sivasankar said he was totally exhausted due to the constant and continued travel from Thiruvananthapuram to Kochi to appear for questioning.
Sivasankar said he was questioned by different agencies for more than 90 hours and even after prolonged questioning, none of the agencies implicated him as an accused in the gold smuggling case.
He had also submitted that he fears that the Customs will register new crimes without any basis and get him remanded to custody "to satisfy political wisdom as well as other vested interests."
ED opposes bail
During the hearing, the Enforcement Directorate had opposed Sivasankar's anticipatory bail plea with the argument that he appeared to be connected with the serious economic offence allegedly committed by Swapna Suresh.
The ED alleged that the officer was "very close" to Swapna, a former UAE consulate employee, and used to send WhatsApp messages to her.
According to the ED, the chat history showed that Swapna discussed everything with him and as such, it is highly unlikely that he was not aware of the money she was making through gold smuggling and also by way of kickbacks in the consulate contracts.
Referring to the seizure of huge amounts of money from bank lockers maintained by Swapna by the NIA, the ED alleged that Sivasankar had facilitated opening of the bank lockers by Swapna jointly with his chartered accountant P Venugopal with SBI, Thiruvananthapuram branch.
Submitting that all the money belonging to Swapna represents Proceeds of Crime (PoC) as defined under Section 2(1)(u) of Prevention of Money Laundering Act (PMLA), 2002, the ED alleged that PoC was generated by Swapna and therefore requires investigation into the serious economic offence in which Sivasankar appears to be connected.
This is a case where custodial interrogation may be required at an appropriate stage depending upon the investigations made, the ED said.
Sivasankar is lying: Customs
Opposing the anticipatory bail application, Customs said Sivasankar feigned illness and got hospitalised to avoid questioning by the agency.
Sivasankar was admitted to a hospital in Thiruvananthapuram on October 16 after he complained of uneasiness when the Customs officials arrived at his home and served notice seeking his appearance before them the same day.
He was discharged on Monday. The private hospital where he was admitted said his angiogram result was normal and ruled out a stroke. It said the MRI of the spine revealed multiple disc prolapse in the lumbar and cervical region.
The Customs said it would appear that probably realising that he was involved in an economic offence injuring the interest of the state, he had executed a 'vakalath' on October 14 even before he left Kochi anticipating arrest.
However, he did not mention the place where he affixed his signature, which shows that he had made all arrangements to pretend illness, get himself admitted in a hospital where his wife works and to avoid answering questions from the agency, it charged.
"The pretended illness turned out to be fake in view of the medical opinion given that the pain killers will take care of the back pain complained of. Yet it is surprising he accuses the customs of choosing Friday evening.
"A person who is clearly avoiding the reach of the law and had made all preparation to defeat even the questioning is not entitled to approach this court," the Customs said.
It wanted the court to reject the plea filed by Sivasankar, referring to a high court order that a person served notice under Section 108 of the Customs Act cannot move an application for anticipatory bail.
The Customs contended that the bail application was not maintainable in law at all, particularly under Section 438 of the Code of Criminal Procedure.
It was mandatory under the section that a person seeking relief should satisfy that he was charged with non-bailable offences and that he apprehends arrest.
"Both these statements are significantly and singularly absent in the application", the Customs said opposing the anticipatory bail plea.
It is not anywhere stated in the application that the petitioner has been charged with any non-bailable offences. This cannot be left to matter of inference but has to be stated specifically. In the absence of it, Section 438 of CrPC will not be attracted and the application was not sustainable, the agency contended.
