Thread by @barandbench

The Kerala High Court will shortly hear a bail application moved by former Kerala bureaucrat M. Sivasankar in connection to his alleged role and arrest in the #keralagoldsmugglingcase

@dir_ed

He moved the Kerala High Court on November 20 seeking regular bail.

He had earlier moved the Kerala High Court seeking pre-arrest bail apprehending arrest in investigations conducted by the Customs Department and the ED.
@dir_ed
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Within an hour of the Kerala High Court dismissing his pre-arrest bail plea, he was arrested by the ED and taken into custody.

His subsequent bail plea before an Ernakulam PMLA Court was junked.

@dir_ed

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Hearing begins.

Senior Advocate Jaideep Gupta appears for Sivasankar.

He takes the court through the facts of the case.

Sr Adv Jaideep Gupta narrates the facts that led up to the seizure of smuggled gold in diplomatic baggage.

#keralagoldsmugglingcase

Read an account of the seizure of gold here:
barandbench.com/news/litigatio…

During the pre-arrest hearing, the agencies had stated that he would not be arrested. However, within minutes of his pre-arrest bail being dismissed, he was whisked away: Sr Adv Jaideep Gupta

The arrest orders were thus made ready, he adds.

Sivasankar was made an accused first for the gold smuggling case, without specifying the exact nature of his involvement: Sr Adv Gupta

Thereafter, his bail was denied stating that he could be involved in other cases such as bribery: Gupta

This is not acceptable, he cannot be made an accused for one set of offences and be denied bail on other grounds: Gupta

Gupta refers Sections 2, 3, 4, and 45 of the Prevention of Money-Laundering Act, 2002.

Reads definition of money-laundering and proceeds of crime.

[Find the legislation here: indiacode.nic.in/handle/1234567…]

Reads Section 45 of the PMLA

Refers to the Supreme Court's judgment in Nikesh Tarachand Shah which declared the two conditions for bail under Section 45 of the PMLA as unconstitutional.

[Nikesh Shah v. Union of India: indiankanoon.org/doc/117859307/]

Sr Adv Gupta refers to the amendment to the PMLA in 2019.

The PMLA Spl court had ruled that after the amendment, the conditions ruled unconstitutional in Nikesh Shah could be applied.

(The PMLA court had ruled that the infirmities pointed out by the SC in Nikesh Shah had been rectified in the amendment and so the conditions could apply)

Therefore, it is Section 439 of the CrPC that should apply: Gupta

In the alternative, the proviso to Section 45 empowers the Court to grant bail to a sick/infirm person or is accused of laundering a sum less than one crore. This may also be considered in this case: Gupta

We have placed material to show petitioner is unwell, he was in fact arrested when he was in hospital: Sr Adv Gupta

The petitioner has no connection to the gold smuggling, the notes submitted to your Lordship are delightfully vague on dates.

There is an attempt to link purely unrelated matters to show them as contemporaneous: Gupta states

There is an attempt to show that the petitioner was the mastermind: Gupta

ASG SV Raju (who is appearing for the ED) interjects: How long will you be taking?

May be an hour or more...: Sr Adv Gupta

Then I will go attend to other matters: ASG Raju

#KeralaGoldSmugglingCase

The evidence shows a friendship between #Goldsmugglingaccused Swapna Suresh, not just with her, but with her entire family. This does not mean he was involved in the gold smuggling: Gupta

The petitioner's statement itself shows the nature of their friendship, he continues

Sr Adv Jaideep Gupta reads out of Sivasankar's recorded statements on his relationship with Swapna Suresh

He narrates that they met in their official capacities and then went on to become family friends.

There had a social friendship, nothing to show involvement in crime: Gupta

Gupta describes how Sivasankar's chartered accountant handled her finances and what led to this.

Dealings with Sivasankar's CA took place early in 2019, the gold smuggling took place late in 2019-mid 2020, there's nothing to show Sivasankar's involvement: Gupta

All there was is a social relationship, is this enough to convict for offences?: Gupta

There is no allegation that the CA has handled tainted cash: Gupta

You are saying he (Sivasankar) had nothing to do with Swapna Suresh's financial transactions towards the end of 2019?: Court

Yes: Sr Adv Jaideep Gupta

May I continue on another date?: Gupta

Court agrees, matter to be taken up again on December 8.