Supreme Court questions ED on timing of Delhi CM Arvind Kejriwal's arrest before 2024 elections

The Supreme Court on Tuesday pulled up the Enforcement Directorate (ED), asking it about the timing of the arrest of Delhi Chief Minister Arvind Kejriwal in the Delhi Excise Policy scam case just before the Lok Sabha elections of 2024.

The Bench of Justice Sanjiv Khanna and Justice Dipankar Datta posed a slew of questions to the ED, directing the federal agency to answer the same on the next date of hearing on May 3.

The Bench asked ED that without there being adjudicatory proceeding, how can it have criminal proceedings initiated in terms of what has been held in Pankaj Bansal vs Union of India and Vijay Madanlal vs Union of India. It said there were no proceedings of attachment in this case so far, and if there were, then the ED was directed to show the involvement of the petitioner in the same.

It said there were findings in favour and against former Delhi Minister Manish Sisodia. The Court asked ED to explain where did the Kejriwal case lie?

It said the national agency thought that the threshold of Section 19 of Prevention of Money Laundering Act (PMLA), which casts onus on prosecution and not on accused was fairly high and thus asking for regular bail did not happen as they were confronted with Section 45 and the onus shifted on them.

It asked as to how should it interpret this? Should the Court make the threshold much higher and ensure that the standard was the same to find the person who was guilty?

Regarding the time gap between the initiation of proceedings and the action of arrest, it mentioned Section 8, in which there was a limit of 365 days. Though they were in bail matters, the other option was to not arrest as the life and liberty of the accused were important, it added.

Regarding the timing of the arrest which was just before the general elections, it noted that in Vijay Madanlal, the Apex Court had upheld the provisions of the Prevention of Money Laundering Act.

However, that judgment was under review. Section 19 of PMLA gave the ED officers the power to arrest persons if there was 'reason to believe' that an offence has been committed. Section 45 contained the grounds for granting bail in PMLA offences.

In Pankaj Bansal, the Apex Court held that the Enforcement Directorate (ED) must supply in writing the grounds of arrest to persons accused under the Prevention of Money Laundering Act (PMLA).

The top court of the country was apprised on Tuesday that there was no proof of Kejriwal's direct involvement in the Delhi Excise Policy case being probed by the ED.

Appearing for the Delhi Chief Minister, Senior Advocate Abhishek Manu Singhvi submitted that no trace of proceeds of crime and a lack of proof of direct involvement was found. Besides, the possession of unaccounted property acquired by legal means would not constitute the proceeds of crime

Earlier on Monday, Singhvi had stated that the arrest was illegal for violating Section 19 of the Prevention of Money Laundering Act and hence the writ petition dealt with the wider import.

The senior counsel argued that there was no need for Kejriwal’s arrest and pleaded that none of the documents including FIRs, chargesheets, supplementary chargesheets, prosecution complaints, etc. filed between August 2022 till the date of arrest connected Arvind Kejriwal with the alleged scam even remotely. Singhvi pointed out that the Chief Minister was not named in the CBI FIR or in the ED Enforcement Case Information Report (ECIR).

He also vehemently pressed that there were also chargesheets by the CBI and prosecution complaints lodged by the ED which did not name Kejriwal. However, Arvind Kejriwal was arrested based on some Section 50 PMLA statements, which were made under questionable circumstances but taken to be the gospel truth.

Referring to the statements recorded and relied upon by the investigation agency, Singhvi stated that not all statements of Raghav Magunta, Buchi Babu, Sarath Reddy etc. name Kejriwal. It was stressed that Sarath Reddy never named Kejriwal in nine statements given to the ED – only the 10th statement was incriminating and the same was not corroborated; rather, Reddy was found to have purchased electoral bonds for the ruling party, Singhvi alleged.

When Justice Khanna questioned if the aforesaid arguments were not better raised in a bail application, the Senior Counsel contended that the PMLA sets a higher threshold for bail. He noted that the Supreme Court upheld the stringent bail provision under Section 45 of the PMLA on the ground that the statute set a higher threshold for arrest too. Hence, it was essential for the court to examine if there were sufficient reasons for arrest, he mentioned.

Arguing that an allegedly incriminating statement was made in July last year, yet Kejriwal was arrested in March, 2024, Senior Advocate Singhvi highlighted that the AAP leader’s arrest immediately succeeded the declaration of Lok Sabha elections.

Singhvi submitted that 15 statements do not name Arvind Kejriwal. However, the 16th statement taken from someone behind bars, who gets bail later and turns approver becomes the basis. He pointed out that the statement was made in July last year but the Chief Minister was arrested in March after the Model Code of Conduct was declared. The counsel stated that either the ED should be having some material to connect to Kejriwal or there is some imminent material on guilt or some basis.

Furthermore, he drew the court’s attention to the dates of all inculpatory statements and asked if ED was letting a guilty CM roam freely up until elections were declared. Mentioning the dates of these 5 statements starting in December 2022 and ending in July 2023, Senior Advocate Singhvi questioned why the arrest took place in March 2024?

Additionally, Singhvi also remarked that it was amusing how the same documents as were relied on in former Delhi Deputy CM Manish Sisodia’s case were being referred to by the ED here, after a long time, hinting that there was no new material to justify arrest.