Kerala HC upholds stay on commission to probe ED role in gold smuggling

The Kerala High Court on Friday upheld its 2021 single judge decision to stay a state government order appointing a Commission of Inquiry (CoI) to examine any alleged attempt by the Enforcement Directorate (ED) to implicate Chief Minister Pinarayi Vijayan in the gold smuggling through diplomatic channels case.

A bench of Justices Sushrut Arvind Dharmadhikari and Syam Kumar V M said there was no error in the single judge's August 11, 2021, interim order.

The bench's ruling came while dismissing the Kerala government's appeal challenging the single judge's order.

"The Writ Appeal, being bereft of merit and substance, is hereby dismissed. The interim order dated August 11, 2021, passed by the single judge is affirmed," the bench said.

The single judge's order had come on a plea by the Enforcement Directorate (ED) seeking to quash the state government's notification regarding the appointment of the CoI.

The bench also said the issue of the state government's legislative competence to appoint a CoI shall be decided by the single judge when the ED's plea is finally heard.

The single judge stayed the notification on the ground that the continuation of the CoI would run parallel to and interfere with criminal investigations and prosecutions pending before the Special Court under the Prevention of Money Laundering Act (PMLA), 2002.

The single judge was also of the view that permitting the commission to inquire into such matters "would prejudice the accused, derail the course of justice, and was impermissible under the settled law that a Commission of Inquiry is only a fact-finding body without adjudicatory powers."  The ED, in its plea, had contended that the state was "incompetent" to order such an inquiry as the subject matter fell within the Central list of the Seventh Schedule to the Constitution.

The CoI, headed by a former judge of the high court, was appointed to inquire whether the contents of a voice clip and a letter, stated to have been issued by the accused persons in the gold smuggling case investigated by various central agencies, revealed any conspiracy to falsely implicate the leaders of the state's political front.