Kerala gold smuggling case: SC to hear ED’s plea to shift trial tomorrow

The Supreme Court will hear on Thursday the Enforcement Directorate’s (ED) plea to shift the trial of the gold smuggling case from Kerala to Karnataka.

ED has sought the transfer of the trial on the ground that the three accused, Sarith S, Swapna Suresh, and Sandeep Nair, “are being influenced and intimidated through threats and false cases by senior officials of Kerala Police and the state government,” allegedly at the behest of M Sivasankar, former Principal Secretary to the Chief Minister.

According to the ED’s petition, Sivasankar, who is “highly influential,” is “trying to thwart and derail the trial and, thereby, protect certain powerful individuals in the government who are involved in the case.”

Also read: Kerala gold smuggling case accused Swapna Suresh claims threat to life

The ED has further claimed that “due to the involvement of powerful persons…, from the very beginning, there has been a concerted effort by the state machinery at the behest of Sivasankar to thwart and derail investigation.

ED’s four points

The ED has argued that transferring the case to Karnataka is necessary to conduct a free and fair trial, based on four grounds:

First, accused Swapna Suresh filed an application for protection when she was in judicial custody for being allegedly threatened by certain police or prison officials “against disclosing names of persons in high authority involved in the case.” Recently, Swapna deposed before the Judicial Magistrate at Ernakulam and made allegations against the Chief Minister, his family members, and a few bureaucrats in connection with smuggling activities.

Second, Sandeep Nair, another accused, filed a petition before the Ernakulam session’s court in March 2021 that ED’s investigating officials harassed and pressured him to make statements against the Chief Minister and other ministers. According to ED, this complaint, filed six months after his release on bail, was the result of a conspiracy hatched by Sivasankar.

Also read: Kerala gold smuggling case: ED forced Swapna to name CM, says police officer

The National Investigation Agency (NIA) has since made Nair an approver in their case, but he continues to be an accused in the Customs and ED cases.

Third, the ED has cited Kerala Police’s two FIRs against it. According to ED, this was an unprecedented situation where a state police force was intimidating ED officers against carrying out their duties. However, Kerala High Court quashed these FIRs in April 2021 following a writ filed by ED. The HC also asked Kerala Police to submit all evidence in a sealed cover before the special judge of the PMLA Court. ED challenged this order in Supreme Court, which granted a stay.

Also, PS Sarith, the first accused, deposed before the NIA Court that he was harassed by officials of the Central Prison at Thiruvananthapuram to retract the statements given to the ED and Customs.

Fourth, the state government has set up a judicial commission “to inquire into the correctness of the ED investigation.” However, the High Court, acting on a petition filed by the ED, stayed the appointment of the commission.

Kerala government’s counter-argument

The Kerala government has opposed the transfer petition based on law and fact. It has argued that the petition is not maintainable because the trial for the same offence investigated and charge-sheeted by the NIA was pending in Kerala (in the NIA Court).

Also read: NIA suspects Dawood links to Kerala gold smuggling case

The ED’s chargesheet in the case makes it clear that the special court for PMLA cases got the jurisdiction to try the case, as the offence was committed in Ernakulam and the NIA registered the FIR in Kochi. When the trial is pending in the NIA court in Kerala, ED cannot seek transfer of the trial under PMLA to another state, it has argued.

Besides, the ED’s supplementary complaint in the special court for PMLA cases makes it clear that evidence collection was complete. ED has also stated in the final report that based on the evidence collected, important components of the PMLA had been fulfilled.

The ED has also stated in the final report that the evidence collected has established the alleged offences. The Kerala government has argued that these statements made by ED in its final report indicate that a free and fair investigation was quite possible in the state, pointing at little interference from anyone from the government.

“FIRs, commission results of ED’s request”

In the counter-affidavit, the government has also cited reasons for registering FIRs and appointing a judicial commission. These were the results of an investigation by the state police at the request of the ED itself to the DG (Prisons), it has claimed.

Also read: Heated arguments in Kerala Assembly over gold smuggling

On November 20, 2020, the ED’s Kochi zonal office, sent a request to the DG (Prisons) to conduct a detailed investigation into the leaking of an audio clip—allegedly that of Swapna, who was in prison. In this leaked audio, she says that ED officials had forced her to give statements against the Chief Minister and other ministers and their involvement in smuggling activities.

In the counter-affidavit, the government has argued that the ED’s request set the criminal law into motion, which resulted in the registration of FIRs and the appointment of a judicial commission.

“No intimidation”

The government has also dismissed the allegation that Kerala Police or jail officials intimidated and pressured Swapna and the other accused. Records reveal that ED recorded Swapna’s statements 12 times, on 12 different dates from August to December 2020. She never complained about either police or jail authorities coercing her about anything. (She came up with the allegations in June 2022).

Also read: Kerala HC scraps FIRs against ED officials in gold smuggling case

The state has further argued that the transfer petition relies on the statements of the accused and media reports. “There is no mention of any incident in which the investigating officers of the ED were prevented from discharging their duties. The officials of ED were freely summoning witnesses and were examining them, including public servants holding important positions. The ED has no case that any such witness was influenced by the state machinery,” states the state’s counter-affidavit opposing the transfer petition.

The government has also alleged that ED has the “ulterior motive to tarnish the government by raising baseless allegations and averments that a fair trial is impossible in Kerala.”