Kerala HC upholds stay on Judicial Commission inquiry into ED’s probe in gold smuggling case

In a setback to the LDF government, the Kerala High Court on Friday upheld the interim order of a single-judge bench staying the functioning of the Justice VK Mohanan Commission, appointed by the state government to probe whether any conspiracy was hatched or deliberate attempts were made to implicate political leaders, including CM Pinarayi Vijayan, in the gold smuggling case.

A Division Bench comprising Justice Sushrut Arvind Dharmadhikari and Justice Syam Kumar VM dismissed the state government’s appeal against the 2021 interim order passed by a single judge, who had stayed the judicial inquiry.

Advertisement

“We have affirmed the interim order passed by the learned single judge, whereby it has been held that the Enforcement Directorate is amenable to writ jurisdiction. We have upheld it. Writ Appeal is dismissed,” the court said.

The Justice VK Mohanan Commission was tasked to examine alleged jurisdictional overreach and political bias by central agencies, particularly the Enforcement Directorate (ED), in attempting to link the Chief Minister and other state officials to the gold smuggling case.

The gold smuggling case involved the seizure of 30 kg of gold worth Rs 14.82 crore at the Thiruvananthapuram International Airport on July 6, 2020. It was allegedly marked as ‘Diplomatic Baggage’ and was being sent to the UAE Consulate.

The ED arrested several suspects, including Swapna Suresh and Sandeep Nair. A voice clip of Suresh, which surfaced online, and a letter sent by Sandeep to the sessions judge in Ernakulam suggested that they were coerced by ED officials to implicate the then Principal Secretary to the Chief Minister and the Home Minister.

Following this, the state government appointed the VK Mohanan Commission to probe these allegations.

The ED subsequently moved the High Court seeking to quash the state notification constituting the Commission, contending that such exercise of power by the state was mala fide and against the principles of federalism.

Finding merit in the ED’s contention, the single judge issued an interim order staying the notification. That interim order was upheld by the Division Bench on Friday.

On the question of the state government’s legislative competence to issue the notification, the Division Bench said that this matter would be decided by the single judge when the writ petition is finally heard. “We do not wish to address the question of competence, as only the interim order is under challenge in this writ appeal,” the Bench noted.

The Division Bench further said that in staying the notification appointing the Commission, the single judge had rightly taken into account the fact that, in light of the notification, continuation of the Commission would run parallel to and interfere with ongoing criminal investigations and prosecutions before the Special Court under Section 44 of the Prevention of Money Laundering Act (PMLA). Permitting the Commission to proceed at this stage, it observed, would prejudice the accused, derail the course of justice, and was impermissible in view of settled law that a Commission of Inquiry is only a fact-finding body without adjudicatory powers.