Thread by @barandbench

[#KeralaGoldSmugglingCase] The Kerala High Court will shortly hear a bail application moved by M. Sivasankar, suspended former Principal Secretary to the Kerala Chief Minister.

@dir_ed @CMOKerala

At the last hearing, Sivasankar's Counsel Senior Advocate Jaideep Gupta asserted that the former top bureaucrat was not involved in the gold smuggling nor in any of the other instances of wrongdoing supposedly unearthed by investigating agencies.

barandbench.com/news/litigatio…

Sivasankar is being investigated by three agencies, the NIA, Customs, and the ED (in whose custody he presently remains).

@NIA_India @IRS_IN @dir_ed

Hearing begins.
Senior Advocate Jaideep Gupta resumes submissions on Sivasankar's behalf.

Senior Advocate Gupta is now dealing with the ED's allegations that he personally contacted customs officials to clear the passage of baggage supposedly containing smuggled gold.

He states that Sivasankar has not contacted customs/airports at the behest of gold smuggling accused

None of the WhatsApp messages passed between gold smuggling accused Swapna Suresh and Sivasankar pointed to his involvement or knowledge of gold smuggling: Gupta

All of Swapna's statements categorically denied his involvement, save for one, which was given after her arrest. This statement cannot be given credence to, it is not admissible as a Section 50 PMLA statement: Gupta

Sivasankar's supposed culpability for offences under the PMLA was on the predicate offence of gold smuggling: Gupta
Without material, it is now being alleged that proceeds of crime found in Swapna's locker were kickbacks from the LIFE Mission contract to Unitac Builders, he adds

Now a completely different offence is being alleged, the entire predicate offence itself has changed, this is the kind of material before you: Gupta

The entire base offence has now changed: Sr Adv Gupta

[Read more about the LIFE Mission Case here:]
barandbench.com/news/litigatio…

There was a change in narration which leads to a situation where the ED is taking upon itself two things

1. changing the predicate offence
2. changing the subject matter of investigation

This is without jurisdiction: Senior Advocate Gupta states

Senior Advocate Gupta takes the Court through Section 3 of the PMLA

Read Section 3 here: indiacode.nic.in/show-data?acti…

There needs to be a predicate offence, proceeds from crime has to rise from this offence: Gupta

Here, the predicate offence is not defined, first they are saying gold smuggling, now they are saying he received kickbacks and passed on confidential information about LIFE Mission: Gupta

The entire investigation has gone off the rails, he says.

The predicate offence now therefore is bribery and receiving kickbacks: Gupta

He has not received the money yet, therefore the offence under the Money-Laundering Act is not yet complete, how can ED investigate: Gupta

Neither is the predicate offence made out, nor is the offence of money-laundering disclosed: Gupta

There is an attempt to create a 'cloud': the Senior Advocate states

Senior Advocate Jaideep Gupta is now describing the LIFE Mission Project

The Project at Wadakancherry was a private contract between the UAE Red Crescent and Unitac Builders, how can a government servant have received kickbacks?: Gupta

[Read more here]:
barandbench.com/news/litigatio…

LIFE Mission merely supervised by the Chief Secretary, the Project had its own CEO who was also a senior IAS officer: Gupta

Unless there is a total breakdown of constitutional machinery in the state, of which there is no material, Sivasankar could not have been involved: Gupta

The supposed bribe-giver himself has denied paying Sivasankar any money: Gupta

He now goes on to describe the tender process for the Project, to show that there was no possibility of any kickbacks.

All of the information about the project was available publicly, why would anyone give money for information that is already available in the public domain: Sr Adv Gupta

Sr Adv Gupta mentions to other projects in which Sivasankar allegedly received kickbacks

Absolute red herrings have been bandied about: he says, speaking about the nature of allegations being made.

Sr Adv Gupta emphasizes that Swapna Suresh & Sivasankar are social acquaintances & nothing more.

In this capacity, he suggested she put in an application with PwC, for its Space Park Project with the Kerala govt.
There is nothing wrong in this, he adds

barandbench.com/news/litigatio…

He concludes his submissions on facts.

Senior Advocate Gupta now moves to submissions based on Section 45 of the PMLA.

Read S45: indiacode.nic.in/show-data?acti…

Senior Advocate Gupta refers to the declaration of the twin conditions of S45 of the PMLA as unconstitutional in Nikesh Tarachand v. Union of India

Read the case here: indiankanoon.org/doc/117859307/

Even though the section was amended subsequently, the basis on which the section was declared unconstitutional has not been changed: Sr Adv Gupta submits

The twin conditions of S45 were declared manifestly arbitrary, he says.

The Senior Counsel reads from the judgment

Senior Advocate Gupta now quotes from the Chidambaram case, to state that bail can be granted even for charges in economic offences.

Also adverts to observations in the judgment on material presented in sealed covers.

The Senior Advocate now submits that the statement made by Swapna Suresh supposedly implicating Sivasankar cannot be believed.

Now Senior Advocate reads the proviso to Section 45 to say that bail can be granted to Sivasankar on the ground of ill health as well, since the amounts involved were less than Rs. 1 crore

There is an attempt made by ED to create an impression.

He illustrates with a WhatsApp chat between swapna suresh, Sivasankar's CA and Sivasankar discussing a new house for Swapna

ED sought to show that the apartment was being purchased to park the proceeds of crime, he submits

There is no economic offence in a friend helping another out to look for a house: Sr Adv Gupta

The ED has been unfair to Sivasankar: he concludes

ASG Raju is expected to make submissions on behalf on the ED on December 18.

Hearing concludes for the day.