Clash of ‘sealed covers’ brews in Supreme Court

A clash of “sealed covers” is brewing at the highest court of the country. On one side is the Enforcement Directorate (ED) drawing the Supreme Court’s attention to the evidence it has secretly submitted against various functionaries of the Chhattisgarh government and on the other is the state government which is seeking to place its own sealed cover to counter the agency.

A bench, headed by Chief Justice of India Uday Umesh Lalit, on Monday agreed to look into both the sealed covers to examine ED’s plea for transferring the probe and trial of the Nagrik Apurti Nigam (NAN or public distribution corporation) scam outside Chhattisgarh due to alleged interference by state chief minister Bhupesh Baghel and other functionaries of the state.

The bench, which also included justices Ajay Rastogi and S Ravindra Bhat, directed that the materials in sealed covers will be sent to the residential offices of the judges, and the case will be heard next on September 26. The bench clarified that it would also scrutinise whether an agency like ED can even file a writ petition under Article 32 or not.

Recently, several benches in the apex court have disapproved of the “sealed cover jurisprudence”. In March, separate benches led by then CJI NV Ramana and Justice Dhananjaya Y Chandrachud refused to take on record certain documents being sought to supplied to the court in sealed covers. “I am very averse to what is called the ‘sealed cover jurisprudence’,” Justice Chandrachud said on March 15. In May, another bench led by Justice Ramana set aside a high court order on registration of a criminal case based on documents submitted in sealed cover but not given to the other side.

The NAN scam came to light in 2015, during the previous BJP government in Chhattisgarh, when the Opposition raised allegations of corruption in the public distribution system (PDS) by allowing substandard rice in the system. NAN is the agency in charge of distribution and procurement of food grains. The then government commenced a probe by the anti-corruption bureau (ACB), which charged several officials, including the then chairman and managing director of NAN.

Within days of the Congress coming to power in December 2018, CM Baghel announced the formation of a special investigation team (SIT). Soon, the two NAN officials, who were absconding after the charge sheet was filed against them, applied for anticipatory bail and were also appointed in the new government. In August 2020, the Chhattisgarh high court granted them bail, which ED challenged in the top court, besides filing a writ petition for the transfer of investigation and trial outside Chhattisgarh.

“Both these prime accused persons wield substantial political and administrative power and are very close to the Hon’ble Chief Minister, State of Chhattisgarh…(they) in connivance with successive chiefs of the prosecuting agency namely EOW-ACB, Chhattisgarh, one very senior law officer in the High Court of Chhattisgarh, members of the SIT and with the intervention of the Hon’ble Chief Minister of Chhattisgarh, have weakened the offence of corruption against them by procuring favourable reports from the said prosecuting agency and SIT,” stated ED’s petition.

On Monday, solicitor general Tushar Mehta, representing ED, implored the bench to look at the materials submitted by the agency in a sealed cover, adding the state government is complicit in shielding the accused. He pointed out that the materials have been submitted confidentially to prevent erosion of people’s faith in the system. “We have materials to show a sitting high court judge was in touch with constitutional functionaries who were helping the accused. Should we disclose that?” Mehta asked.

Senior counsel Kapil Sibal, Abhishek Manu Singhvi, Mukul Rohatgi and Sidharth Luthra, representing the state government and the accused officers, argued that ED must share the material with all the parties if they want the court to rely on the sealed cover, or not bother mentioning it at all.

Sibal, representing the Chhattisgarh government, pointed out that if the bench is going to look at what ED has filed, the state will also submit a sealed cover about various aspects of the of the case and that should also be perused by the court. This plea was acceded to by the bench.

“Mr Tushar Mehta has produced certain materials in a sealer cover. This has been objected to by the respondents submitting that the practice of sealed cover has not been approved by this court in a latest judgment. Mr Sibal, appearing for state, submits if the materials placed by ED is to be considered, state will be desirous to submit certain materials in a sealed cover. Therefore, we give the state the liberty to submit such materials in a sealed cover that they want to rely upon. Both the sealed covers to be sent to the residential offices of the judges,” recorded the court order.