Can Government Scan Diplomatic Baggage: Supreme Court Asks ED While Hearing Transfer Petition In Kerala Gold Smuggling Case

The Supreme Court, today, raised a question of whether the government can scan diplomatic baggage and if yes, then about the procedure for the same.

The Bench of Justice Hrishikesh Roy and Justice Satish Chandra Sharma was hearing a transfer petition filed by the Directorate of Enforcement ('ED') seeking a transfer of trial from the State of Kerala to the State of Karnataka in the Kerala Gold Smuggling Case in which Swapna Prabha Suresh is a prime accused.

Justice Satish Chandra Sharma asked, "Not connected to this case, but suppose the Government of India wants to scan the diplomatic baggage, then what is the procedure?"

ASG SV Raju appeared on behalf of the ED and said, "I will look into it...whether it is an immunity...I will see. Suppose it is illegally scanned..."

Justice Sharma intervened, "No no, suppose there is a necessity to do it."

Raju replied, "If there is a necessity to do it, yes then they can do it...Prima facie this is my opinion, but I will be looking into it deep and come back on the next date. But even in the case where evidence is collected illegally, it can be looked at, there are judgments..."

Justice Sharma said, "Because in this case there was diplomatic baggage."

Raju said, "Whether a crime is committed by virtue of a diplomatic bag being misused, will be called a diplomatic baggage, will be one of the questions."

Counsel on behalf of the State of Kerala sought adjournment as Senior Advocate Kapil Sibal was not available. Advocate Krishna Raj appeared for the accused Swapna Prabha Suresh.

The Kerala Government had issued an order sanctioning an amount of Rs. 15.5 Lakhs to Senior Advocate Kapil Sibal for one appearance on its behalf before the Supreme Court on October 10. As per the government order, the Advocate General of the state has been authorized to draw the said amount for payment to Sibal. On October 10, 2022, Kapil Sibal had appeared for the State that got itself impleaded in the present Transfer Petition.

Previously, the Kerala High Court on April 12, 2023, had dismissed a writ petition filed in the matter that sought a probe by the ED and Customs against Kerala’s Chief Minister Pinarayi Vijayan. The plea had alleged the involvement of political functionaries including the CM in the gold smuggling case which the Court found to be of no merits. The Bench had observed that the relief of fair and just investigation and for monitoring of the investigation cannot arise.

The Kerala High Court had also dismissed the plea filed by Swapna Suresh to quash the FIRs registered against her for allegedly spreading false information against MLA K.T Jaleel, CM Pinarayi Vijayan and the Government.

In June 2022, Swapna Suresh had made startling claims in her Bail Application that had been filed by her before the High Court, which was consequently dismissed. Swapna and Sarith. P.S had approached the High Court seeking anticipatory bail in an FIR registered against her on the complaint of the MLA and former Minister K. T. Jaleel under Sections 120 B and 153 of the IPC alleging that Swapna has spread rumours and made false statements against him and the Chief Minister, thereby attempting to incite people for rioting.

After that in July 2022, she had approached the High Court seeking to restrain the Kerala Police from harassing her to disclose details of her statement, reportedly against the Chief Minister of Kerala Pinarayi Vijayan and his family. Swapna had also alleged that she is being coerced by Police to replace her present Advocate, Krishna Raj. Advocate Krishna Raj, the lawyer for Swapna Suresh had made serious allegations against Kerala Chief Minister Pinarayi Vijayan and his family about involvement in gold smuggling. He was later given anticipatory bail in the FIR registered against him for a Facebook post.

Cause Title: Directorate of Enforcement v. Sarith P.S. and Ors. (T.P.(Crl.) No. 449/2022)