The submission was made by Boinpally’s counsel, senior advocate Vikram Chaudhari, before a single-judge bench of Justice Dinesh Kumar Sharma.

Boinpally moved the HC seeking bail besides moving a writ petition challenging his arrest, remand and other proceedings conducted by the ED under the Prevention of Money Laundering Act (PMLA).

Chaudhari said, “I joined the investigation with ED on September 28, 2022, I appeared before ED on October 2, 2022. Between October 7-9, 2022 I’m called in terms of Section 41A of CrPC. On October 9, 2022 I was arrested by the CBI and I’m in their custody. The ED after 20 days of incarceration, on October 29, 2022 seeks permission to interrogate me in custody. This word is not used in Section 50 (PMLA). On October 31, 2022, their application is allowed and ED is permitted to record my statement for three days, within a span of 30 days. On November 8, 2022 my statement was recorded by ED while I’m in custody in the CBI case. On November 10, 2022, arguments in the CBI bail case were concluded. It is kept for pronouncement for November 14, 2022.”

Chaudhari submitted that on November 13, 2022, on the eve of pronouncement in the CBI bail plea, the ED went to Tihar Jail and served his client with an arrest memo. “There was overwriting, it was in a printed format, the arrest order. In typing, the name of the person arrested was Vijay Nair, which was scored off with a pen and Abhishek Boinpally was written,” he said.

Chaudhari submitted that when the ED’s application was allowed by the special court, “no notice was issued” to his client and “he was not heard”.

Chaudhari further said that the special court had not seen whether Section 19 of the PMLA had been satisfied in the case. “Section 19(2) states that immediately after arrest you forward in sealed cover all that material to the adjudicating authority…Their(ED’s) argument was that we have informed the grounds in writing…They may have sent it but when they have sent, how they have sent nobody knows even till today,” he submitted.

He further emphasised that there had been “serious invasions of liberty” in this case.

“The State says that people have committed serious offences by which they deserve to remain inside…however where there is severe punishment rules have to be stricter and whatever is procedurally required to be done must be done,” he said.

He further argued that there had been “judicial oversight in this case, and it has been an oversight in a different way where the court has condoned the lapses (by the agency)”. Chaudhari argued that the trial court had neither asked the ED to show the compliance of Section 19(1) and nor asked if it had complied with the rigours of Section 19(2) PMLA.

Section 19(1) PMLA states that if the Director, Deputy Director, Assistant Director, or any other officer authorised in this behalf by the Centre by general or special order, has, on the basis of material in his possession, reason to believe (the reason for such belief to be recorded in writing) that any person has been guilty of an offence punishable under PMLA, then he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest.

Under Section 19(2), such an officer shall, immediately after arrest of such person under Section 19 (1), forward a copy of the order, along with the material in his possession to the Adjudicating Authority, in a sealed envelope, in the manner as may be prescribed, and such Adjudicating Authority shall keep such order and material for such period, as may be prescribed.

On February 16, the special court rejected bail pleas moved by Boinpally, Aam Aadmi Party’s (AAP) communication’s incharge Vijay Nair, Indospirit owner Sameer Mahendru, Aurobindo Pharma director Sarath Reddy and Pernod Ricard General Manager Benoy Babu.
On the defence argument that there is no evidence on record to show any meeting of minds or conspiracy hatched between the accused persons to pay the kickbacks, the special court said this submission was “unacceptable in light of the oral and documentary evidence which has been brought on record by the ED against the accused persons. The court said there was “enough evidence in there to infer the existence of such a criminal conspiracy between the accused”.
Chaudhari had previously argued that the same judge in the CBI case, while granting Boinpally bail, had said that the agency had relied on oral evidence in the form of statements the veracity of which would be tested during trial, adding it had not led to any other evidence or material.