Dravida Munnetra Kazhagam (DMK) leader and Tamil Nadu minister V Senthil Balaji on Tuesday told the Supreme Court that Enforcement Directorate (ED) has no vested right, irrespective of reasons, in seeking his custody for interrogation after the expiry of 15 days from the date of his arrest by the anti-money laundering agency.

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A bench comprising Justice AS Bopanna and Justice MM Sunderesh said that they would be examining the legal issue arising in the matter instead of going deeper into the facts.

“We will not be going deeper into the facts. We will be going into the legal issue,” Justice Bopanna said as a lawyer appearing for a complainant against Senthil wanted time to present his case.

The bench posted the matter for hearing on Wednesday – August 2 – as Solicitor General Tushar Mehta appearing for ED wanted to argue his case in one go and sought accommodation for tomorrow (Wednesday).

The court embarked on examining the legal issue as senior advocate Mukul Rohatgi appearing for both V Senthil Balaji and his wife Megala seeking reference of the legal issue to a larger bench cited a series of judgments including by three-judge bench which had consistently ruled that an accused cannot be remanded to police custody after the expiry of 15 days from the date of arrest.

Rohatgi said that this position of law was unsettled in 2012 by a two-judge bench headed by Justice MR Shah (since retired), which ruled contrary to the position taken by the three-judge bench earlier. He said that the 2021 judgment was contrary to the practice prevailing in Indian jurisprudence in which a two-judge bench cannot rule contrary to the position already spelt out by a three-judge bench.

Seeking reference of the issue to a larger bench for clarity, Rohatgi said that a two-judge bench cannot overrule a position taken by a coordinate bench of two judges and can refer it to a larger three-judge bench.

He said that clarity was required as after the 2021 judgment a number of High Courts were relying on it and passing orders. Rohatgi even questioned the legal basis of the Madras High Court judgment holding that 15 days period be excluded as Senthil Balaji was hospitalised and underwent coronary surgery.

However, by way of concession, Rohatgi said that while Senthil Balaji is under judicial custody and is in jail hospital, ED can interrogate him for three days for a few hours every day.

Earlier resuming his arguments that remained inconclusive on July 27, senior advocate Kapil Sibal said, “I do not have the grounds of arrest or the ECIR. Even in preventive detention it is given. So, my statutory and constitutional rights are affected.”

In the last hearing on July 27, Sibal had told the court that there was misuse and abuse of the anti-money laundering law and Senthil Balaji under the Prevention of Money Laundering Act after being produced before a magistrate can’t be mandatory remanded to custody of the ED upto 15 days and can only be sent to judicial custody.

Sibal said that on being produced before a magistrate court by the Enforcement Directorate, the accused can’t be remanded to ED’s custody, but can only be sent to judicial custody.

The top court is hearing a challenge to the Madras High Court decision upholding the arrest of Senthil Balaji and subsequently magistrate court remanding him to judicial custody.

The High Court order upholding the arrest of the minister, and also holding valid his subsequent remand in judicial custody came following the decision of a third judge, Justice CV Karthikeyan, holding that the accused had no right to frustrate the investigation.

The matter travelled to Justice CK Karthikeyan – the third judge – following a split verdict on July 4, by a division bench of Madras High Court comprising Justice Nisha Banu and Justice D Bharatha.

Justice Nisha Banu held that the Habeas Corpus plea filed (by Balaji’s wife Megala) for Senthil Balaji’s release is maintainable and should be allowed. Justice Banu further said ED is not entitled to get the custody of Senthil Balaji.

However, Justice D. Bharatha Chakravarthy said the habeas corpus plea was not maintainable after the remand order had been passed. He said that no case was made out to show that Balaji’s remand was illegal. Justice Chakaravarthy has also said that that period of Balaji’s stay at the hospital, should be excluded from the ED’s custody period.

Senthil Balaji was arrested by the Directorate of Enforcement on June 14 in an alleged ‘cash for job’ scam that took place when he was the transport minister (2011-2015) in the government of late Chief Minister J Jayalalithaa.

The ED has arrested Senthil Balaji in connection with a money laundering case rooted in alleged ‘cash for job’ scam that took place when Senthil Balaji was Transport minister in AIADMK government who later crossed over to ruling DMK in 2018.

The High court had permitted Senthil Balaji to be shifted to a private hospital for a heart surgery and restricted his interrogation in the hospital. Senthil Balaji was operated for the blockages of three coronary arteries at a local private hospital in Chennai.