New Delhi | In a relief to arrested Tamil Nadu Minister V Senthil Balaji, the Supreme Court Wednesday refused to stay a Madras High Court order allowing to shift him to a private hospital for treatment notwithstanding fervent request by the Enforcement Directorate.

The Enforcement Directorate, which arrested Balaji in connection with an alleged cash-for-jobs scam in the state's transport department, had moved the apex court against the Madras High Court order.

Balaji, 47, underwent a coronary bypass surgery at a private hospital in Chennai on Wednesday and was said to be doing fine.

A vacation bench of Justice Surya Kant and Justice M M Sundresh noted a habeas corpus petition filed by Balaji's wife against his "illegal" arrest is still pending in the high court and asked the ED to approach it.

The top court noted the high court is yet to pronounce its final judgement on the maintainability of the habeas corpus petition and on the ED's request for exclusion of the period of Balaji's stay in hospital from the duration of remand which the trial court had granted the central agency for the minister's custodial interrogation.

"Since both these issues are likely to be examined by the High Court on the date fixed i.e. June 22, 2023, or soon thereafter, we deem it appropriate to post these Special Leave Petitions for further hearing on July 4, 2023.

"It is clarified that the pendency of these Special Leave Petitions shall not be taken as a ground to adjourn the matter pending adjudication before the high court," the bench said.

The bench said observations made by the high court in the interim order or any oral observation made by the apex court during the course of the hearing shall have no bearing on the merits of the case.

At the outset, Solicitor General Tushar Mehta, appearing for the ED, said the high court order set a wrong precedent as it was contrary to three constitution bench judgments.

"The person has got himself admitted and he is undergoing some surgery etc. I am challenging the order of remand which is made conditional which makes the remand virtually meaningless," Mehta submitted.

The solicitor general said this is a case where because of the interference of the high court, the ED is unable to exercise the right of remand.

"No one can take away your right of remand. You're entitled to it. The only question is should it be deferred or postponed till the day the person recovers from the ailment," the apex court told the central government's law officer.

Bajali, the electricity and prohibition and excise minister of Tamil Nadu, was arrested on June 14 under the Prevention of Money Laundering Act (PMLA) in an alleged cash-for-jobs scam that took place when he was the transport minister in an AIADMK government led by J Jayalalithaa.

The high court passed an interim order for shifting the minister to a private hospital after Balaji's wife filed a habeas corpus petition alleging illegal arrest.

In its plea before the top court, the ED said the high court erred in entertaining the habeas corpus petition, claiming it was not maintainable after a judicial order had already been passed remanding Balaji in the custody of the federal anti-money laundering agency.

"The high court has erred in allowing the arrestee (Balaji) to be shifted to a private hospital without there being any basis to do so and without first considering the request of the ED to constitute an independent medical board for evaluation.

"Having allowed shifting of the arrestee to a private hospital, the high court has erred in not entertaining the plea of the investigating agency of excluding the period of treatment to be undergone in the private hospital from the period of custody as interrogation and investigation would be rendered meaningless while the arrestee is in hospital," the ED's plea said.

The probe agency said the high court erred in entertaining the habeas corpus petition when Balaji had already been remanded in custody by way of a judicial order by a court of competent jurisdiction.

"The validity of arrest cannot be challenged in a habeas corpus petition once the person arrested has been validly remanded to custody. The high court has erred in entertaining the habeas corpus petition when Senthil Balaji has been duly remanded to custody by the Special Court. The said petition was liable to be dismissed at the outset for being not maitainable," the ED said.

It said the order to shift Balaji to a private hospital, without considering the specific averment made on behalf of the ED that an independent and impartial medical opinion be sought with respect to his medical condition, is untenable.

The HC had on June 15 allowed the the minister, who was then undergoing treatment at a government hospital after his arrest, to be shifted to a private facility.

The Madras High court has also issued notice to the ED on the main plea of 'illegal' arrest of Balaji and posted the matter to June 22.

The high court had said Balaji will continue to remain in judicial custody and allowed the probe agency to have its own team of doctors examine the minister.