The Delhi High Court (HC) on 9th April 2024 dismissed the plea moved by the CM of Delhi Arvind Kejriwal challenging his arrest by the Enforcement Directorate (ED) in a money laundering case related to the alleged liquor policy scam case.
About the Case
Arvind Kejriwal had skipped nine summons issued to him by ED. Aam Aadmi Party (AAP) leaders Manish Sisodia and Sanjay Singh are also accused in the case. While Sisodia is still in judicial custody, Sanjay was recently granted bail by the Supreme Court (SC). Following his arrest Kejriwal had promptly moved an urgent petition before the SC challenging his arrest. However, the same was withdrawn later.
Moreover, he has previously moved the Delhi HC (division bench) challenging the summons issued to him by ED. He has also filed an application seeking interim protection. The matter is fixed for hearing on 22nd April. Kejriwal had earlier skipped the nine summons of ED, claiming they were illegal.
The ED’s case that the excise policy was implemented as part of conspiracy to give wholesale business profit of 12% too certain private companies, although such a stipulation was not mentioned in the minutes of meetings of Group of Ministers (GoM). The central agency also claimed that there was a conspiracy that was coordinated by Vijay Nair and other individuals along with South Group to give extraordinary profit margins to wholesalers.
Justice Swarna Kanta Sharma of the Delhi HC upheld his arrest and subsequent remand holding that ED was able to place enough material, statements of approvers and AAP’s own candidate stating that Kejriwal was given money for fighting Goa Elections. Judge further added that “ Material collected by ED reveals that Kejriwal conspired and was involved in formulation of excise policy and used proceeds of crime. He is also allegedly involved in personal capacity in formulation of policy and demanding kickbacks and secondly in the capacity of national convenor off AAP”.
This offence by Kejriwal attracted the section 70 of Prevention of Money Laundering Act (PMLA). This section penalizes the offences by company provides that when a company contravenes the PMLA, every person who at the time of contravention was in charge off conduct of business of the company will be deemed to be guilty. Kejriwal had argued that he can not be held, as AAP is not a company but a political party.
On Kejriwal’s arguments challenging the timing of arrest ahead of General Elections, the court said “ Petitioner has been arrested in money laundering case and the court has to examine his arrest and remand as per law irrespective of timing of elections.” The court held that challenge timing of arrest, in the absence of any mala fide on part of ED, is not sustainable.
Significantly, Kejriwal’s counsel had questioned the veracity of statements given against Kejrival by approvers. It was argued that the statements given in exchange for their release and ticket to contest elections. The court however made it clear that approvers statements are recorded by the court and not by the probe agency. Thus it held, “ To cast aspersion on the manner of recording of statements of approver would amount to casting aspersions on the judicial process. The law of approver is more than 100 years old. It is not a one year old law to suggest as if it was enacted falsely implicate the petitioner.”
The Court further added that “ Who gives ticket for contesting election or who purchases electoral bonds is not the concern of the court.” It also added that Kejriwal will be permitted to cross-examine the witnesses (including approvers), at the appropriate stage. On the question of non supply of documents and earlier statements (of approvers), the judge said, that you are entitled to inspect the documents at appropriate stage of trial, however this is not that stage.
The senior advocate Abhishek Manu Singhvi appearing for Kejriwal contented that ED forced the approvers to make statements against Kejriwal. He further alleged that two out of three approvers even have linked with the ruling party at the centre.
Responding to the plea, ED had said that Kejriwal is the kingpin and the key conspirator of the excise scam and there were reasons to believe on the basis of material in procession that he was guilty of offence of money laundering. Ed also alleged that AAP was the major beneficiary of the proceeds of the crime and has committed offence through Kejriwal. ED further added that “ Kejriwal was and is not only the brain behind AAP but also controls its major activities, and was also involved in decision making and framing new excise policy, which is evident from the statements of the witnesses.
Now legal team of Kejriwal is going to the SC against this decision of the HC.
I recall that the SC in one of the petition filed by AAP leader who is in the jail, had commented that there is enough evidence with ED against you, therefore bail application is not sustainable, and had commented that why Delhi’s CM Kejriwal is not being questioned by ED whose name is appearing many times in the reply filed by ED. After that ED issued summons to Kejriwal, asking him to come to ED’s office for questioning, but on some pretext or the other Kejriwal started avoiding the summons, but in the end HC refused to give him any relief and then he had to face the ED, and was subsequently detained by ED on 21st March 2024.
Let us wait and watch what happens in the SC on this matter. My thinking is that, Kejriwal’s legal team may find it very difficult to get any relief for him from the SC, on the contention of timing of his arrest, before the General Elections.
Waiting for your feedback on this blog.
Anil Malik
Mumbai, India
10th April 2024.