Red herrings being bandied about: Jaideep Gupta rubbishes linking of Sivasankar to LIFE Mission kickbacks in Kerala High Court bail hearing

Rubbishing allegations against M Sivasankar in connection with Kerala gold smuggling case, Senior Advocate Jaideep Gupta on Tuesday described the Enforcement Directorate's charges against the former bureaucrat as "baseless" and "red herrings"..The submissions were made before a single-judge Bench of Justice Ashok Menon who is hearing the bail application moved in the Kerala High Court by the former principal secretary to the Kerala Chief Minister..Sivasankar, presently facing investigation by the Customs Department, the National Investigation Agency, and the Enforcement Directorate (ED), is in the custody of the ED..During the proceedings on Tuesday, Senior Advocate Gupta emphasized that there was no material to demonstrate Sivasankar's alleged involvement in the gold smuggling racket..In this respect, Gupta made reference to a locker that was opened jointly in Sivasankar's name and in the name of one of the prime accused in the gold smuggling case, Swapna Suresh. .Previously, the Senior Advocate had emphatically stated that Sivasankar had nothing to do with the locker after July 2019. Therefore, if it subsequently became a safe house for the proceeds of a crime, this was without his knowledge, Gupta had argued..On Tuesday, he once again emphasised this aspect asserting that Sivasankar had no knowledge of how the locker was being operated after mid-2019. .He also denied a statement that Swapna allegedly made to the ED while in their custody, supposedly confirming that Sivasankar had communicated with customs officials on several instances to clear baggage containing smuggled gold through security checks..Gupta contended that little credence could be given to this statement since it was given when she was in the ED's custody. Moreover, in Swapna's previous statements to the ED, she had categorically denied Sivasankar's involvement in the smuggling, he added..Gupta also proceeded to address allegations that Sivasankar had received kickbacks from various entities in projects concerning the government, namely the LIFE Mission Project, the Kerala Fibre Optics Network Project, and Space Park..The ED has alleged that a second locker operated by Swapna contained money from kickbacks, Gupta recounted in Court. Submitting that these allegations were not backed by any material, he claimed that the "investigation has gone off the rails". .The Senior Counsel also drew from Section 3 of the Prevention of Money-Laundering Act (PMLA), to argue that a predicate offence, as well as the proceeds of the offence, has to be demonstrated for the offence of money-laundering to be attracted. .The predicate offence, in this case, seemed to have shifted from gold smuggling to the 'receipt of kickbacks from government projects'. In respect of the latter, it was unclear as to whether it even fell under any of the predicate offences described in the schedule to the PMLA, he submitted..Absolute red herrings have been bandied aboutSenior Advocate Jaideep Gupta.He added that the kickbacks were supposedly recovered by the NIA from a locker operated by Swapna. Therefore, the supposed kickback, which were the alleged proceeds of crime, had never even been received by Sivasankar. .Since the kickback had not yet reached Sivasankar, the offence alleged "was not yet complete", Gupta said. In this event, there could be no offence under the PMLA against Sivasankar, he pointed out..With respect to the kickbacks supposedly received by Sivasankar from Kerala government projects, the Senior Advocate urged the Court that this was not possible, because of the nature of tender processes for the projects..The process was online, with all information about the projects uploaded on the web portal. There was no confidential information to reveal because everything was already available online, he underscored..Reiterating his earlier submissions concerning bail under Section 45 of the PMLA, Gupta emphasized that the twin conditions in the PMLA provision were manifestly arbitrary..Bail could be granted even for economic offences such as the one at hand, the Senior Counsel asserted, concluding his arguments with a quote from Chidambaram v. Enforcement Directorate..[Kerala Gold Smuggling] Allegations against him "delightfully vague": M Sivasankar to Kerala High Court.Upon a request by the ED's Counsel, Additional Solicitor General SV Raju, for further hearing on another date, the matter was posted for December 18..At the previous hearing, Gupta had argued that Sivasankar had no connection to the gold smuggling incident and placed reliance on statements by witnesses to buttress the claim that Sivasankar knew other accused in the case only in an official and social capacity..The beleaguered former principal secretary, had previously approached the High Court for anticipatory bail, which was rejected..Later, upon his arrest by the ED, he moved moved a regular bail application before a Special Court constituted under the PMLA at Ernakulam. The Special Court rejected his application on November 24, stating that it was not possible to say there were no reasonable grounds to conclude his complicity just yet..He immediately moved the High Court for bail thereafter.