'Life, liberty are exceedingly important': SC questions timing of Kejriwal's arrest before polls, seeks ED reply

The top court sought the agency's clarification on absence of any attachment proceedings in this case thus far and asked ED to demonstrate how Kejriwal is implicated if such proceedings do exist.
Delhi Chief Minister and AAP National Convenor Arvind Kejriwal leaves the Rouse Avenue District Court.
Delhi Chief Minister and AAP National Convenor Arvind Kejriwal leaves the Rouse Avenue District Court.FILE Photo | PTI

NEW DELHI: India's top court on Tuesday questioned the Enforcement Directorate's (ED) decision to arrest Delhi Chief Minister Arvind Kejriwal before the 2024 Lok Sabha elections in relation to the money laundering case tied to the excise policy.

A two-judge bench of the Supreme Court, led by Justice Sanjiv Khanna and Dipankar Datta, posed several questions to the ED regarding the Aam Aadmi Party (AAP) leader's arrest and instructed the probing to provide responses during the next hearing scheduled for May 3.

The top court also sought clarification from Assistant Solicitor General (ASG) SV Raju, who appeared for the ED, regarding the absence of any attachment proceedings in this case thus far.

Additionally, it requested the ED demonstrate how the petitioner (Kejriwal) is implicated if such proceedings do exist.

It said, "Mr Raju, we have some questions, which we would like you to answer, when you make your submissions. First is without there being any adjudicatory proceedings, can the ED initiate a criminal proceedings in view of several judgements of this court on PMLA?"

"Life and liberty are exceedingly important. You can't deny that," the bench told ASG Raju, who appeared on behalf of ED and sought his reply, saying: "The last question is with regard to the timing of the arrest, which they have pointed out, the timing of the arrest, soon before the general elections."

The bench also highlighted the significant time gap between the commencement of adjudication proceedings in the case and the arrest action, citing Section 8 of the Prevention of Money Laundering Act (PMLA), which imposes a maximum limit of 365 days.

Justice Khanna said the verdict on the bail plea of former deputy chief minister Manish Sisodia, who is in custody in the excise policy scam case, was divided into two parts: the first part was in favour of Sisodia and the second part was against him.

"You (Raju) have to tell us which part of Sisodia verdict does the petitioner (Kejriwal) case lie," the bench said.

Justice Khanna said the third important question relates to the ED's power of arrest, as it is the reason why Kejriwal has repeatedly approached the court.

"Look, they have not openly stated but it is quite apparent why they are repeatedly coming up against the remand because what they believe is that the threshold of Section 19 of PMLA casts an onus on the prosecution and not on the accused," he told Raju.

Elaborating on his question, Justice Khanna said that under Section 19 of the PMLA, the threshold is fairly high, whereas the onus shifts on the accused when he seeks bail under Section 45 of the Act.

Section 19 of the PMLA empowers the ED to arrest persons based on the material in its possession, providing a reasonable basis to suspect that an individual has committed an offence punishable under the law.

Under Section 45 of the PMLA, there are two conditions for the grant of bail to an accused, which include that the prosecutor be given an opportunity to oppose the bail plea and that the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

The bench told Raju, "So, how do we interpret it? Do we make the threshold much higher and ensure that the standard is the same as to find the person who is guilty but then we have to deal with benefit of doubt and other things?"

Delhi Chief Minister and AAP National Convenor Arvind Kejriwal leaves the Rouse Avenue District Court.
Why bail plea not filed in trial court, Kejriwal asked

Senior lawyer Abhishek Manu Singhvi, who appeared for Kejriwal, said that there was no proof of Kejriwal's direct involvement in the Delhi Excise Policy case being probed by the ED. "No trace of proceeds of crime and lack of proof of direct involvement," he said.

The senior lawyer took the court through the statements of witnesses, approvers and accused in the case and said that only five statements had named the AAP chief.

Singhvi said that there are certain safeguards provided under the PMLA to prevent unjustified arrests. The ED is expected to act impartially and fairly, but in this case, this is far from truth. He said the term 'proceeds of crime' need to be interpreted strictly as the possession of unaccounted property acquired by illegal means may be actionable for tax violation but not necessarily proceed of crime.

A day after his plea was dismissed by the Delhi High Court, Kejriwal appealed to the top court on April 10 against the rejection of his plea regarding arrest and remand in the money laundering case connected to the defunct Delhi Excise policy. His appeal is scheduled to be heard on Monday by a bench led by Justice Khanna.

The ED, which is investigating the case, had filed a response with the apex court claiming that the accused (Kejriwal) attempted to evade responsibility by allegedly ignoring the nine summonses issued to him.

The agency submitted its reply in compliance with the apex court's previous directives, which mandated it to respond to Kejriwal's appeal.

In its reply, the ED alleged that when Kejriwal failed to obtain a restraining order against his arrest from the Delhi High Court, the ED arrested him on March 21 on grounds of his purported involvement in the case.

The ED had also claimed that Kejriwal worked in collusion with his ministers and AAP leaders and was also involved in “demanding kickbacks” from liquor businessmen in exchange for favours granted in the policy.

"Arvind Kejriwal, chief minister of NCT of Delhi, is the kingpin and key conspirator of the Delhi excise scam in collusion with ministers of the Delhi government, AAP leaders and other persons," the agency said in its 734-page reply affidavit.

"Arvind Kejriwal was involved in the conspiracy of formulation of the excise policy 2021–22 to favour certain persons and also involved in the demanding kickbacks from liquor businessmen in exchange for favours granted in the said policy," it said.

In its response, the ED refuted Kejriwal's argument that his pre-election arrest aimed to obstruct his involvement in his party's electoral process. The agency also rejected his assertion that his participation in a constitutional democratic process (election) was impeded, emphasising that such processes are intended to be independent, impartial, and fair.

The ED further asserted that if substantial evidence exists against an individual, regardless of their significant political influence, the arrest cannot be deemed illegal.

Additionally, the agency argued that the prospect of arrests should not hinder an individual's participation in the electoral process. It emphasised that if such arguments were given credence, no political leader could be arrested despite their involvement in criminal cases.

In a rejoinder to the ED's reply affidavit filed on his petition challenging his arrest in the case, the Delhi Chief Minister told the SC that ED had acted in a "most highhanded manner" and that he had always cooperated with the investigation.

The AAP leader has continued to maintain his innocence in the case and emphasised that the timing of his arrest, just after the implementation of the Model Code of Conduct (MCC), was orchestrated to humiliate, insult, and disable him and his political party in the run-up to general elections.

ASG Raju, appearing for ED, said that there is sufficient evidence against him and that he is the main criminal conspirator in the Delhi liquor scam.

The Delhi High Court on April 9 upheld the AAP leader's arrest, saying there was no illegality and the ED was left with "little option" after he skipped repeated summonses and refused to join the investigation.

"The arrest of Arvind Kejriwal was not in contravention of the legal provisions. The remand can't be held to be illegal," the court had said, adding that "the material collected by the ED reveals that Kejriwal conspired, and was involved in the formulation of excise policy and used proceeds of crime."

The matter pertains to alleged corruption and money laundering in the formulation and execution of the Delhi government's now-scrapped excise policy for 2021–22.

Kejriwal is currently lodged in the Tihar jail here under judicial custody after his arrest on March 21 in the case. The top court issued a notice to the ED on April 15 and sought its response to Kejriwal's plea.

(With additional inputs from PTI, Online Desk)

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