Can’t object to seizure on privacy grounds: ED
In its affidavit, the agency contended that these actions were lawful and necessary for evidence collection, dismissing claims that such seizures infringed upon fundamental rights
The Enforcement Directorate (ED) has asserted that the seizure of mobile phones and extraction of data for investigative purposes cannot be objected to on the grounds of privacy, arguing that such actions are justified within the framework of law enforcement.
In submissions before the Madras high court, ED emphasised that privacy rights cannot be absolute when they come into conflict with the state’s legitimate interest in investigating crimes, particularly under the Prevention of Money Laundering Act (PMLA).
ED’s stance came in response to petitions challenging its recent search and seizure operations in Tamil Nadu, where it confiscated mobile phones of certain individuals in connection with its probe into an alleged multi-crore liquor scam involving Tamil Nadu State Marketing Corporation (TASMAC).
To be sure, the raids at the state-owned TASMAC headquarters last month quickly snowballed into a political controversy, with the MK Stalin-led DMK government denouncing them as yet another instance of the BJP-led central government weaponising investigative agencies to target non-NDA states.
In its affidavit, the agency contended that these actions were lawful and necessary for evidence collection, dismissing claims that such seizures infringed upon fundamental rights.
“Extraction of information from a mobile phone for the purpose of investigation into a crime cannot be objected to on the ground of privacy,” ED stated in its affidavit, underscoring that seizure and data extraction are intrinsic to investigative processes. It further maintained that any incidental restrictions on free speech or communication resulting from such seizures are legally justified and proportionate to the objectives of criminal investigation.
ED refuted the argument that seizing mobile phones amounted to a violation of freedom of speech. “The argument that seizure of a mobile phone during a search under the PMLA is violative of the right to speech is as absurd as saying that impounding a vehicle under the Motor Vehicles Act is violative of the right to freedom of movement,” the agency asserted.
Quoting the Supreme Court’s landmark judgment in the 2017 Puttaswamy case, which recognised privacy as a fundamental right but subject to reasonable restrictions, ED contended that governmental interest in crime detection constitutes a valid limitation on privacy rights. “The governmental interest in conducting searches under constitutionally valid provisions of the PMLA, for the purpose of collecting evidence to detect and prosecute money laundering, amounts to a reasonable restriction on the right to privacy,” the affidavit said.
The rights of the TASMAC employees cannot trump a law enforcement agency demanding access to mobile phones and other personal digital devices, ED said in its affidavit filed before a bench of Justices SM Subramaniam and K Rajasekar.
The agency also defended its ability to seize devices from individuals who are not formally named as accused in a case but are considered relevant to the investigation. ED argued that restricting the scope of search and seizure to only those directly accused would hinder law enforcement and impede the collection of crucial evidence.
While the submissions arose in the context of the TASMAC probe, ED’s position extends to all criminal investigations under its purview, setting a broader precedent on law enforcement’s authority to access digital evidence.
“The seizure of mobile phones is directly and inextricably related to the investigation under PMLA for gathering material to unearth the offence of money laundering and prosecute offenders. Any incidental limitation on the freedom of speech is valid, legal, and justified,” the affidavit said.
The agency filed its affidavit before the high court on April 1 in response to the two petitions filed by the Tamil Nadu government and TASMAC seeking that the search and seizure proceedings conducted by ED between March 6 and 8 be declared illegal.
The petitions alleged that TASMAC officials and employees were detained for prolonged hours and coerced into handing over their phones during ED’s search operations.
While some employees claimed that their fundamental rights were violated, ED denied all allegations of misconduct, insisting that its operations were conducted lawfully and in adherence to legal procedures.
ED further questioned whether a state entity like TASMAC could file writ petitions on behalf of its employees, asserting that no individual employee had formally alleged harassment or human rights violations. The agency underscored that the entire search operation was carried out in the presence of independent witnesses, in a peaceful and lawful manner.
