The Enforcement Directorate (ED) told the Supreme Court on Thursday (August 29) that custodial interrogation of P Chidambaram is needed in the INX Media money laundering case as he is a man with “resources, intelligence and wherewithal” even as the former finance minister asserted that his right to liberty cannot be curtailed by arresting him without any valid reason.
The ED told a bench of justices R Banumathi and AS Bopanna that money laundering is an offence against the “society and nation” since it impacts the economy and it is the duty of the probe agency to unravel the entire conspiracy.
Chidambaram’s counsel said that liberty is not a “one-way traffic” and if ED has the power to arrest him, then he also has his fundamental right of liberty under the Constitution.
The bench reserved its order for September 5 on Chidambaram’s plea challenging the Delhi High Court’s August 20 verdict denying him anticipatory bail plea in the INX Media money laundering case.
While opposing Chidambaram’s anticipatory bail plea, Solicitor General Tushar Mehta said that considering his position, it would be “impossible” to interrogate him if he is under the “protective umbrella” of bail.
He said that if the arguments of Chidambaram’s counsel that the court cannot look into the material collected in the probe without the accused being confronted with it is accepted, then it would lead to “devastating results” in other cases.
“I have materials to show that concealment, use of proceeds of crime and laundering of money continued after 2009 and even till date,” he said, adding that “interrogation will be a mere ritual if the accused is under the protective umbrella of bail”.
Senior advocate Kapil Sibal, appearing for Chidambaram, dared the ED to show even one document, property or foreign bank accounts linked directly or indirectly to Chidambaram. Sibal said that Chidambaram is a Member of Parliament and he has disclosed each and every detail about his assets to the authorities.
“Liberty is not an one-way traffic. If they have the right to arrest me, then I also have my fundamental rights. It is not a procedure of law that a probe agency gives its conclusion to a judge and the judge records his finding in his order. Can the procedure of law be destroyed in this fashion?” Sibal said.
Senior advocate AM Singhvi, who also appeared for Chidambaram, said that the documents which the ED wants to place before the court for its perusal could have been put to Chidambaram during his questioning in the case.
“You (ED) had no occasion to arrest the person since 2014 then what is the urgency now? Evidences are all documentary. There is no possibility of him being a flight risk,” he said.
While urging the court to look into the materials collected during the probe, Mehta said that the ED has nothing to hide and there would not be an iota of doubt that the materials are cogent to arrest Chidambaram.
Referring to the INX Media money laundering case, he said, “All these persons (accused) are equal in terms of resources, intelligence and wherewithal”. He said that if the material is shown to an accused at the stage of pre-arrest bail, then he may start “erasing the money trail”.
“This submission is absurd and devastating results would follow if this submission is accepted. This is preposterous. This proposition of law will be then applicable to all cases,” he said.
“We (ED) are probing cases of Vijay Mallya, Nirav Modi, Mehul Choksi, AgustaWestland scam, Air India, Zakir Naik, Hafiz Saeed, Syed Salahuddin, Shabir Ahmad Shah and other cases which include cross-border terror fundings,” he said, adding that some of the accused in these cases are filing pleas in courts in India from places like Antigua without subjecting themselves to the courts of law here,” he said.
“Investigation is a science in itself. It is not only about questioning an accused,” he said, adding, “My probe, my witnesses or my sources will be exposed if I put the material to him at this stage”.
Sibal argued that all the materials were available with ED but they did not put them to Chidambaram when he was questioned on December 19 last year, January 7 and 21 this year. “What else could be the greatest travesty of justice? The same thing was said in Karti Chidambaram’s case. All these materials were with them for years,” he said.
He also said it was not their case that ED cannot arrest an accused. He said the high court had “copy pasted” the note, given to it by the ED after arguments were over in the case there, on the basis of which Chidambaram’s plea was rejected.
“What is this note? This is the conclusion of the investigating authority which also became the conclusion of the judge,” Sibal said, adding that opinion of an investigating officer can never be a part of the case diary.
“My right to get anticipatory bail is my right under Article 21,” Sibal said, adding, “These are very serious issue as it relates to liberty”. “It is not our case that interest of the state is not important but so is the liberty. There has to be a balance and it will depend upon the facts and circumstances of each case,” he said.
“Can liberty of a person be destroyed like this? Can sealed cover documents be used in this manner to seal the fate of any person?,” Sibal asked.
The CBI had lodged an FIR on May 15, 2017, alleging irregularities in Foreign Investment Promotion Board (FIPB) clearance granted to INX Media group for receiving overseas funds of ₹305 crore in 2007 during Chidambaram’s tenure as finance minister. Thereafter, the ED lodged a money laundering case in 2017.