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2025 Supreme(Online)(Ker) 42950
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SUSHRUT ARVIND DHARMADHIKARI, SYAM KUMAR V.M., JJ
STATE OF KERALA, THROUGH CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM – Appellant
Versus
ENFORCEMENT DIRECTORATE – Respondent
WA NO. 1532 OF 2021 | WP(C) NO.13112 OF 2021
For the Appellants/Petitioners:ADVOCATE GENERAL SHRI.V.MANU, SENIOR G.P.SHRI.T.B.HOOD, SPL.G.P. TO A.G.
For the Respondents: O.M.SHALINA, DEPUTY SOLICITOR GENERAL OF INDIA, SHRI.SUVIN R.MENON, SENIOR PANEL COUNSEL, SHRI.JAISHANKAR V.NAIR, SC, ENFORCEMENT DIRECTORATE
The Enforcement Directorate has the legal standing to challenge a state-issued Commission of Inquiry into matters solely under the Union List, as it pertains to ongoing investigations under central legislation.
Headnote:(A) Commissions of Inquiry Act, 1952 - Section 3 - Prevention of Money Laundering Act, 2002 - Unlawful Activities (Prevention) Act, 1967 - The writ petition by the Enforcement Directorate challenged the maintainability of a notification issued for a Commission of Inquiry investigating coercion allegations in a gold smuggling case. The court emphasized that state inquiries into subjects solely under the Union List are ultra vires. (Paras 4, 7, 9)
(B) Legal Standing - The court reaffirmed that the Enforcement Directorate, as a statutory authority established under relevant laws, possesses locus standi to file a writ petition. Procedural defects are subordinate to substantive rights. (Paras 7.1, 11)
(C) Interim Relief - The court held that the interim stay on the notification was justified to prevent interference with ongoing investigations and prosecutions under central legislation. (Paras 12)
(D) Final Decision - The writ appeal was dismissed, affirming the interim order of the learned Single Judge. (Para 13)
| Table of Content |
|---|
| 1. appeal against interim order in writ petition. (Para 1 , 2) |
| 2. discussion on maintainability of writ petition by enforcement directorate. (Para 4 , 6 , 7 , 8) |
| 3. analysis of jurisdiction concerning commission of inquiry. (Para 9 , 11) |
| 4. affirmation of interim stay and appeal dismissal. (Para 12 , 13) |
JUDGMENT
Sushrut Arvind Dharmadhikari, J.
The present intra-Court Appeal under Section 5 of the Kerala High Court Act 1958 assails the interim order dated 11.08.2021 passed in W.P.(C) No.13112/2021, filed by the Directorate of Enforcement established by the Central Government challenging Ext.P1 notification issued by the State Government, in exercise of the powers under Section 3 of the Commissions of Inquiry Act, 1952 (for short ’Act of 1952’), whereby the learned Single Judge held that the writ petition is maintainable at the behest of the Directorate of Enforcement and has also stayed the Ext.P1 notification.
2. The appellants herein are the respondent nos.1 to 3, and the respondents are the writ petitioner and the 6th respondent in the writ petition, respectively.
3. The prayer clause of the writ petition filed by the Enforcement Directorate, through the Deputy Director of Enforcement, Cochin Zonal Office, is as follows:
“a) Pass a writ of mandamus or any other appropriate writ, order or direction calling for the entire records/original file including all the material/documents/correspondences forming part of the said original file which resulted into the publication of the Notification dated 7.05.2021 bearing No. Home- SSA2/67/2021-HOME issued by Respondent No 2 under the provisions of Commission of Inquiry Act, 1952 and after perusing the same pass a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the same for being wholly without jurisdiction and contrary to law;
b) In the alternative and without prejudice to the prayer (a) above, declare that appropriate government to initiate any inquiry into the facts and material stated in Notification dated 7.05.2021 bearing No. Home- SSA2/67/2021-HOME under the provision of Commission of Inquiry Act 1952, would be the Central Government;
c) Grant such further reliefs as this Hon’t necessary to meet the ends of justice;
d) Allow the writ petition with costs.”
3.1 The interim prayer sought for by the writ petitioner in the writ petition pending disposal of the same is as follows:
“For the reasons stated in the above writ petition and in the accompanying affidavit, it is most respectfully prayed that pending consideration and final adjudication of the present petition, this Hon’ble Court may be pleased to stay the operation, implementation of Notification dated 7.05.2021 bearing No. Home- SSA2/67/2021-HOME and restrain the 5th respondent Commission to exercise any power or to take any action in exercise of the said powers conferred upon it under the provisions of Commission of Inquiry Act, 1952.”
4. The brief facts of the case are that Ext.P1 notification issued by the appellant herein constitutes a Commission of Inquiry to investigate into:
(i) an audio clip attributed to accused Swapna Suresh, and
(ii) a letter by accused Sandeep Nair, both relating to the gold smuggling case, alleging coercion of officers of the Enforcement Directorate to implicate political leaders of the State. The Enforcement Directorate/respondent herein has challenged Ext.P1 notification, contending that the constitution of the Commission is ultra vires the provisions of the Act of 1952 since the subject matter pertained to investigations under the Prevention of Money Laundering Act, 2002 , (PMLA 2002) and Unlawful Activities (Prevention) Act, 1967 , ( UAPA 1967). Both are central legislation, and the subject matter of the inquiry is one related to the entries enumerated in List-1 of the Seventh Schedule to the Constitution. Hence, the State Government/the appellant is incompetent to order an inquiry into the same under Section 3 of the Act of 1952.
5. After
