Gold smuggling case: Kerala is trying to derail probe, ED tells top court
Powerful persons in the Kerala government are misusing their power to thwart and derail proceedings in the gold smuggling case, the Enforcement Directorate (ED) told the Supreme Court in an affidavit filed on Thursday ahead of next week’s hearing on the agency’s plea seeking transfer of trial from Kerala to Karnataka.
“The very fact that the state government constituted a commission of inquiry into an investigation conducted by a central investigation agency demonstrates that powerful persons involved in the case who are holding high offices in the government of Kerala are willing to misuse the state machinery and powers in order to thwart and derail proceedings in the case,” ED said in its affidavit, reubutting criticism that its request for transfer of the case is “politically motivated”.
Kerala’s Pinarayi Vijayan government constituted the one-man judicial commission in May 2021 and a petition is pending in Kerala high court questioning its constitution.
ED also cited accused Swapna Prabha Suresh’s testimony in June in which she accused several ruling Kerala politicians of involvement in the gold/currency smuggling scam through the UAE consulate, and rebutted that she was forced by ED to make the statement.
“The very fact that the statement was given under Section 164 CrPC confirms that the statement was free and voluntary before an independent judicial forum. There is no basis on which it can be said that proceedings are politically motivated.”
ED counter came after the Kerala government, which became a party to the proceedings on October 10, alleged in an October 14 affidavit that Swapna Suresh’s latest statements were on account of a “conspiracy” and “external pressure”.
A bench headed by Chief Justice of India (CJI) Uday Umesh Lalit will take up both the affidavits on November 3 to take a call on allowing the transfer of the trial from Kerala’s Ernakulam to Karnataka.
ED added that CM Pinarayi Vijayan letter to PM Modi in June 2020 to seek a probe into the gold smuggling case by Central Bureau of Investigation (CBI) was a “cover-up” as the state machinery provided no effective assistance. On the contrary, ED alleged that after it detected the role of the CM’s former principal secretary M Sivasankar in the case, the state machinery turned against ED and registered false cases against investigating officers to ensure the investigation and trial got derailed.
“Besides letters written to cover-up and give the appearance of genuineness, the state machinery has not provided any effective assistance… Multiple attempts were made by the misuse of state machinery to tamper and obstruct the investigation by ED,” the agency’s affidavit said.
The ED affidavit’s pointed mention is seen as a reference to the case lodged on the complaint made by two women police constables on guard duty for Swapna Suresh which claimed that ED officers exerted pressure on the accused to name the Kerala CM. These statements were then leaked to the media even though the accused never made any such complaint. Another case was registered against ED officials on an allegation by lawyer of another accused Sandeep Nair which accused the agency of pressurizing the accused to name the CM .
In its affidavit, the Kerala government opposed ED’s demand for transfer of trial and pointed out that Sivasankar was no longer with the chief minister’s office and thus wasn’t in a position position to influence the state police.
ED told the court that Sivasankar continues in a “key high ranking position” in the state government and his influence over the state machinery cannot be discounted. Sivasankar was appointed principal secretary of the sports and youth affairs after he was reinstated.
“If the trial is continued in the state of Kerala, the high profile accused will influence the accused persons and witnesses and thereby derail the fair and independent trial of the case… serious miscarriage of justice would result if the trial is not transferred,” the agency claimed.
ED also alleged that Sivasankar had been influencing other accused and was using the state machinery to fabricate false evidence against ED and its officials.
In her latest statement in June, Swapna accused Sivasankar of playing a vital role in the smuggling case and that he told her that the investigation should stop at her.
Citing these instances, ED said, “These instances clearly depict how Sivasankar aided in commission of the offense and as to how he was able to tamper the investigation. In all of these situations, Sivasankar acted not in his individual capacity, but by misusing his official capacity.”
ED claimed that it had access to material facts that showed Sivasankar played a “significant role” to conceal and launder the proceeds of crime.
