As investigation progressed in Kerala gold smuggling case, state machinery turned against ED, probe agency tells Supreme Court

New Delhi [India], October 29 : Enforcement Directorate Friday told the Supreme Court that when the investigation progressed in the gold smuggling case and the role of Chief Minister Pinarayi Vijayan's own then Principal Secretary was detected, the state machinery turned against the probe agency and registered false cases by influencing the accused and making efforts to derail the investigation and trial.
"Even though a letter was sent by the CM of Kerala to the PM when the investigation progressed and the role of his own then Principal Secretary was detected, the state machinery turned against ED and registered false cases by influencing the accused and making efforts to derail the investigation and trial," ED said in a rejoinder affidavit filed in the gold smuggling case.
The rejoinder affidavit was filed by the ED on its plea seeking transfer of gold smuggling case from the Kerala to Karnataka. ED filed its rejoinder opposing the Kerala Government plea which had opposed agency's plea to transfer the case from one state to another.
ED submitted that there is adequate material showing that the state machinery is being misused to pressurize, intimidate and influence the accused and witnesses in order to protect powerful persons in Kerala holding high posts in the government and hence there is adequate basis to form the view that free and fair trial in the case will not be possible in the state.
The central probe agency said that there is no merit in the case of the respondents Kerala state and the transfer petition deserves to be allowed.
"One of the key accused, who was then the Principal Secretary, is continuing in a key high ranking position in the Government of Kerala even today," ED submitted in the rejoinder affidavit.
"If the trial 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. The above two points clearly explains the malafide action taken by the state against ED and malafide inaction of not taking any action against the actual culprits," ED submitted.
"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. This clearly establishes the case of the ED to seek a transfer of the trial out of Kerala. Therefore, the objection by State of Kerala to the transfer of the trial to a place outside Kerala is wholly unwarranted," ED submitted.
Earlier Kerala Government has opposed the Enforcement Directorate plea seeking to transfer gold smuggling case to Karnataka and said that probe agency plea was to tarnish the Government of Kerala by raising baseless allegations.
Kerala government, in an affidavit filed before the Supreme Court, submitted that after having completed the investigation and collection of evidence and submission of supplementary complaint, the prosecuting agency ED cannot seek transfer of the PMLA case to another state merely on the ground of alleged interference in the investigation by State Police.
The Enforcement Directorate had filed a plea seeking to transfer the trial in the case pending, before the Special Court for PMLA cases, Ernakulam to a Special Court for hearing PMLA cases in Karnataka.
In the petition preferred by the Directorate of Enforcement, the agency sought transfer of the trial on the ground that the concerned respondents "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 the other respondent, in order to thwart and derail the trial and thereby protect certain powerful individuals holding important positions in government who are involved in the case.
In 2020, the Customs Commissionerate (Preventive), Cochin had registered against Sarith PS, former PRO at UAE Consulate, Swapna Prabha Suresh, former Secretary to Consul General of UAE Consulate, Sandeep Nair and others relating to the seizure of 30 kg of 24 Karat gold worth Rs. 14.82 crores at Trivandrum International Airport which was camouflaged as diplomatic baggage to UAE Consulate which is immune to checking at airport as per the Vienna Convention on Consular Relations. This seizure was only the tip of the iceberg and there were 21 such consignments of gold which was smuggled into India, which runs to more than Rs. 80 crores.
Thereafter, a case had been registered by the National Investigation Agency under sections 16, 17 and 18 of the Unlawful Activities (Prevention) Act, 1967 against the three individuals on July 10 2020. Both offences registered by NIA and the Customs have scheduled offences under the PMLA, 2002.
The ED also stressed that based on the case registered by the NIA, an Enforcement case was recorded on July 13, 2020 by the Enforcement Directorate.
ED submitted that Investigation under PMLA, it was revealed that the accused persons had committed the offence of money laundering defined under Section 3 and punishable under Section 4 of the PMLA, 2002 and therefore a Prosecution Complaint was filed before the Special Court (PMLA), Ernakulam on October 6 2020.
Thereafter, a supplementary Prosecution Complaint was filed u/s 45 of PMLA, 2002 before the Special Court under PMLA, Ernakulam against M. Sivasankar on December 24 2020 arraigning M Sivasankar in the Complaint.
The trial in the case is presently ongoing before the Special Court for PMLA cases, Ernakulam in Kerala.
Due to the involvement of powerful persons in Kerala, from the very beginning, "there has been a concerted effort by the state machinery to thwart and derail the investigation and the proceedings", ED said.
The ED said it has preferred the present petition because the state police "at the behest of a highly influential accused" is trying to subvert and derail the investigation under PMLA and important persons are being pressurized to retract statements.