 "Enforcement Directorate")
The Enforcement Directorate has told the Supreme Court that M Sivasankar, former principal secretary to Kerala Chief Minister Pinarayi Vijayan and accused of gold smuggling, has been influencing other accused and using state machinery to fabricate false cases against it and the investigating officer.
The Kerala government machinery turned against the Enforcement Directorate (ED) after Sivasankar's role was detected in the smuggling case and false cases were registered against directorate officials to derail probe and trial, the agency alleged.
"Even though a letter was sent by the CM (chief minister) of Kerala to the PM (prime minister), when the investigation progressed and the role of his own then principal secretary was detected, the state machinery turned against the ED and registered false cases by influencing the accused and making efforts to derail the investigation and trial," it said.
The ED filed its response in reply to the counter affidavit filed by Indian Administrative Service officer (IAS) Sivasankar on a plea of the probe agency seeking transfer of the trial in the case to a special PMLA (Prevention of Money Laundering Act) court in Karnataka.
"It is submitted that it is a well-known fact that the Respondent No. 4 (Sivasankar) is a highly influential bureaucrat and the possibility of tampering the investigation is clearly given in the petition. After coming out on bail, M Sivasankar, IAS, has been influencing other accused and is using the state machinery to fabricate false evidence against the investigating officer and the investigating agency," the ED said.
The agency said that its plea for transfer of the trial is based on the ground that the respondents number one to three -- Sarith PS, Swapna Prabha Suresh and Sandeep Nair -- are being influenced and intimidated through threats and false cases by senior officials of the Kerala Police and the state government at the behest of Sivasankar.
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This is being done in order to thwart and derail the trial and thereby protect certain powerful individuals holding important positions in the government who are involved in the case, the ED said.
The top court had on October 10 allowed the impleadment application of the Kerala government on the ED's transfer plea and issued notice to all the four accused who were made party in the plea. The Kerala government had opposed the transfer of the case outside the state.
The ED said, "In the present case a central investigation agency is filing for a transfer in view of the fact that powerful persons in the state government are involved and in view of demonstrated misuse of State power to thwart proceedings."
"Transfer not being sought on account of any apprehension against the judiciary, such transfer would not cast aspersions on the State judiciary. The question here is not pertaining to independence of judiciary but to uphold the sanctity of fairness in trial," it said.
The ED added that its transfer petition cannot be said to be politically motivated and has been preferred on the basis of material facts leading to reasonable apprehension genuinely formed with regard to the possibility of conducting a free and fair trial in Kerala.
It said that the Kerala government states that a statement made by Swapna Suresh before the court under CrPC section 164 was enough to cause widespread riots in the state.
"It is therefore evident from the pleading of the state of Kerala in its impleadment application itself that the atmosphere in the state of Kerala is so charged in relation to this case that a free, fair, tranquil and independent trial free from external and extraneous influence would be almost impossible," the ED said.
This clearly establishes the ED's case to seek a transfer of the trial out of Kerala. Therefore, the objection by the state to the trial's transfer to a place outside Kerala is "wholly unwarranted", it said.
There is nothing in the law or facts that prohibits or prevents the ED from seeking transfer of the trial when there are circumstances that fair trial is not assured. The transfer request has been made as high profile persons are involved and trying to influence the accused and witnesses, the ED said.
"...letters of the chief minister written after seizure of gold which leads back to powerful individuals in the state; besides letters written to cover-up and give the appearance of genuineness, the state machinery has not provided any effective assistance and has only been misused in order to interfere with and impede proceedings under the PMLA. Multiple attempts were made by the misuse of state machinery to tamper and obstruct the investigation by the ED", it said.
The case is currently being tried by the special PMLA court at Ernakulam. The case originated after the seizure of 30 kg gold worth Rs 14.82 crore at Trivandrum International Airport in July 2020.
The gold was camouflaged as diplomatic baggage to the UAE Consulate, making it immune to checking at the airport as per the Vienna Convention on Consular Relations.
The Customs registered a case against two staffers of the Consulate - Swapna Suresh and P S Sarith - and a cargo agent Sandeep Nair. The ED had claimed that the seizure was only the tip of the iceberg and there were 21 such consignments of gold which were smuggled into India, worth more than Rs 80 crore.
The case was later taken over by the National Investigation Agency, which registered a case under the Unlawful Activities Prevention Act. The ED subsequently registered a case on the basis of the NIA case.
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