ASG Disowns ED Affidavit Filed Without Verification; Supreme Court Highlights Serious Concerns
Safiya Malik
The Supreme Court noted procedural irregularities in a counter-affidavit filed by the Enforcement Directorate (ED) during the hearing of a bail petition in a Prevention of Money Laundering Act (PMLA) case. The Additional Solicitor General (ASG) raised concerns about the affidavit, describing it as "half-baked" and not properly vetted by the investigating agency.
The matter pertains to a bail application filed by an accused in the alleged Chhattisgarh liquor scam. The ED, tasked with investigating the case, had filed a counter-affidavit in response to the bail plea. However, ASG SV Raju, representing the ED, informed the bench comprising Justice Abhay S. Oka and Justice Ujjal Bhuyan that the affidavit had been filed without proper vetting or consultation with the investigating agency.
The ASG stated: "There is something fishy in the filing of the affidavit. It was filed without being vetted by the proper channels of the ED."
The ASG added that he had instructed the ED Director to initiate a departmental inquiry into the matter and directed the officer responsible to appear before the Court.
Senior Advocate Meenakshi Arora, representing the petitioner, criticized the ED's handling of the matter, alleging that it was a tactic to delay proceedings and prolong the petitioner’s incarceration.
The bench expressed its surprise and questioned the propriety of the process. Justice Oka remarked: "Advocate on Record for ED files the affidavit, and now ED wants to say that it was filed without instructions. How can we accept that?"
The ASG clarified that the affidavit was submitted with instructions but had not been vetted. He stated: "There is something wrong with the ED, which I must say. The affidavit came from the department without proper verification."
The bench, however, stated the Advocate on Record’s (AoR) responsibility for ensuring that affidavits are properly reviewed before submission. Justice Oka stated: "If you are saying that the Advocate on Record filed the affidavit without appropriate authority vetting it, then it is the greatest default committed by him."
The bench initially deferred the matter and directed the AoR to appear in court. Upon the AoR's appearance, it was confirmed that the affidavit had been filed on instructions from the ED. Justice Oka questioned how the ED could now disown the affidavit, remarking: "How can you disown the counter now? What is this going on?"
The ASG conceded to proceed with the matter but maintained concerns about the affidavit's accuracy and lack of verification.
During the hearing, it was revealed that the petitioner’s period of custody was shorter than initially claimed. Noting that the petitioner had not completed 18 months in custody, the Court observed that the precedent in Senthil Balaji v. Directorate of Enforcement would not apply, as it requires at least one year of custody to grant bail under similar circumstances.
The Court scheduled the matter for final hearing on February 5, 2025.
Case Title: Arun Pati Tripathi v. Directorate of Enforcement
Case Number: SLP(Crl) No. 16219/2024
Bench: Justice Abhay S. Oka and Justice Ujjal Bhuyan
