Senior Congress P Chidambaram's advocate Kapil Sibal on Thursday questioned the 'sealed cover evidence' presented by the Enforcement Directorate in the Supreme Court in the INX media case stating that "sealed covers are not meant to seal the liberty of a man".
"Sealed covers cannot seal the liberty of a man. If the ED did not file the complaint for four years saying the investigation is still on in the case, will I (Chidambaram) not be able to get a bail for 4 years?" he said in his arguments on the plea for pre-arrest bail.
"All that the court has to see was if the material was put to Chidambaram by the investigating agency," he said while raising questions about the counter affidavit filed by the ED which says that the material was put to Chidambaram for confrontation and he was evasive.
Speaking about the Delhi High Court judgement in the case, he said: "According to ED Chidambaram was laundering, buying properties making layers after layers for years, yet it did not think of arresting him. The ED has to argue a case according to the facts of each case. The High Court judgment is a verbatim copy of the note given by the investigating agency. It isn't a conclusion of the judge but of the ED. The judge has only copy- pasted it."
He called the 'note' submitted in Delhi High Court as 'travesty of justice'.
"This is a travesty of justice when a note is placed before the court after proceedings are over and the same note is reproduced in the judgement as the opinion of the Court and later extracted as the findings of the court. The note is not even material evidence," he asserted.
Stressing that the anticipatory bail to Chidambaram is his right under Article 21, Sibal said: "They (ED) can arrest him as long as they are fair and reasonable. What is not fair or reasonable is handing over notes like this."
If the facts were so strong against Chidambaram, the ED could have arrested him but the agency chose to interrogate him to elicit responses from him, he said.
"The ED did not arrest him in 2017 after the FIR was filed. They arrest him now. He never said that he cannot be arrested but on proper grounds. I challenge them to show one bank account, one undisclosed property in the name of Chidambaram," Sibal said, adding that "We're in virgin territory right now. There has to be a balance struck between the interest of the State as well as the liberty of individuals."
Disputing the contention over 'disclosure of documents', Chidambaram's lawyers Abhishek Manu Singhvi said that he is not asking the Central probe agency to provide him sealed cover documents.
"It's not my case that evidence in sealed cover ought to be disclosed to the accused. The objection is to the submission of a sealed cover to the judge after proceedings have concluded," he said.
"According to us, the ED's affidavit says when they confronted Chidamabram with these documents he was evasive and not cooperative. They must disclose the question and the answer because it's not Chidambaram is saying that he was evasive," Singhvi added.
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