Was ED Letting A Guilty Chief Minister Roam Free For Months? Singhvi Questions Need & Timing Of Kejriwal's Arrest Before Supreme Court

While arguing Delhi Chief Minister Arvind Kejriwal's plea challenging his arrest by the Enforcement Directorate in the Delhi Liquor Policy case, Senior Advocate Dr Abhishek Manu Singhvi alleged before the Supreme Court today that the AAP leader's arrest was consequent to Model Code of Conduct (with respect to Lok Sabha elections) being put in place, even though there was no "reason to believe" or "new" material with the agency to take the action.

After hearing Singhvi for about an hour, the Bench of Justices Sanjiv Khanna and Dipankar Datta posted the matter tomorrow. Although some difficulty was expressed by Additional Solicitor General SV Raju (who prayed on behalf of ED that the matter be heard on Wednesday), the bench said that the matter would be listed tomorrow and if need arises, the ASG would be accommodated.

At the outset of the hearing, the bench asked Singhvi if Kejriwal has filed any bail application before the trial court. Singhvi replied that no bail application has been filed; instead, the writ petition has been filed challenging the arrest. In response to Justice Khanna's curiosity to know the reasons for not filing bail application, Singhvi 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.

Singhvi questions the 'Need' for Kejriwal's arrest

Taking the court through his note and list of dates, Singhvi firstly argued that there was no need for Kejriwal's arrest by the ED. He pled that none of the documents (including FIRs, chargesheets, supplementary chargesheets, prosecution complaints, etc.) filed between August 2022 till the date of arrest connected Kejriwal with the alleged scam "even remotely". He was not named in the CBI FIR or in the ED Enforcement Case Information Report (ECIR), Singhvi said.

The senior lawyer vehemently pressed that there were also chargesheets by the CBI and prosecution complaint(s) filed by the ED which did not name Kejriwal. Regardless, he was arrested based on some Section 50 PMLA statements, which were made under questionable circumstances but taken to be the gospel truth.

With regard to the statements recorded and relied upon by the agency, Singhvi averred that not all statements of Raghav Magunta, Buchi Babu, Sarath Reddy etc. name Kejriwal. It was emphasized that Sarath Reddy never named Kejriwal in nine statements given to the ED - only the 10th statement was incriminating. The same was not corroborated; rather, Reddy was found to have purchased electoral bonds for the ruling party ie BJP, Singhvi alleged.

When Justice Khanna asked if these arguments are not better raised in a bail application, Singhvi submitted that the PMLA sets a higher threshold for bail. He pointed 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. Therefore, it was essential for the Court to examine if there were sufficient reasons for arrest.

Singhvi questions the 'Timing' of Kejriwal's arrest

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

"15 statements do not name me. 16th statement taken from someone behind bars...he gets bail later and turns approver. His statement becomes the basis. That statement is July last year. They arrest me in March...You are arresting me in March after the Model Code of Conduct is declared. Either you should be having some material to connect me or there is some imminent material on guilt or some basis...", Singhvi submitted.

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: "What are the dates of these 5 statements? Starting from December 2022 and ending in July 2023. Why did they arrest me in March 2024? You (ED) are not arresting a hardened criminal or terrorist who has done something yesterday, last week, two weeks before...something [for which] he will try to run away...what is the imminence? Were you (ED) letting a guilty Chief Minister roam free from December 2022 and through July 2023?".

Singhvi also remarked that it was "amusing" how the same documents as were relied 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.

Singhvi questions the 'Manner' of Kejriwal's arrest

Singhvi further challenged the manner of ED arrest, by pointing that Kejriwal was arrested from his residence on the very day the Delhi High Court denied him interim relief from arrest. It was sought to be impressed that the denial by the High Court did not give ED "reason to believe" that Kejriwal was "guilty".

"I argued before learned Single Judge of the Delhi High Court. The matter was inconclusive. A date was given...10-15 days later. We went home, the Chief Minister went home. In the evening, he was arrested. The arrest happens on 21st March after no arrest for 1.5 years because I had been unsuccessful in getting on that day in a matter pending anticipatory bail or protection from coercive steps. You (ED) can't say I have reason to believe..."

The senior lawyer clarified that Kejriwal was not claiming immunity from arrest. Although, he asked if the Delhi CM has lesser rights compared to an average citizen: "I am not saying CM has immunity, but does he have lesser rights?"

Further, Singhvi accused the ED of unfairness as previous exculpatory statements of the witnesses were not produced and discarded as "unrelied documents."

"Fairness of a prosecutor is the uppermost consideration...It cannot be that where you are relying on 1 statement out of 15, and a person whose statement is the 10th or the 9th statement, becomes culpable...9 earlier statements which are not culpable, saying no, no denying...by the expedient of the IO putting it in the unrelied category...it cannot be. The obligation of the prosecutor is to bring it up...I may not bring up something inculpatory about me...if there is something exculpatory about me, he jolly well should bring it up" he contended.

In response, J Khanna said that whether a document is or is not relied upon may not be relevant, "what is (relevant is) that the application of mind by the authority concerned must be on all the favourable and unfavourable points".

It was also urged by Singhvi that Kejriwal replied to the ED summons in detail and non-attendance in terms thereof did not give ED "reasons to believe" as required under PMLA.

The Aam Aadmi Party (AAP) chief petitioned the Supreme Court earlier this month, after his writ petition challenging the ED arrest was dismissed by the Delhi High Court on April 9. Notice came to be issued on his plea on April 15, with the matter being directed to be listed in week commencing April 29. Subsequently, when the top Court website showed next date of hearing as May 6, Singhvi mentioned the matter before a Justice Khanna-led Bench on April 26.

After the mentioning, the matter was listed today.

Kejriwal was arrested by ED on March 21 and has been in custody ever since. Delivered by Justice Swarana Kanta Sharma, the High Court decision had upheld his arrest by the central agency and subsequent remand, on the basis that ED was able to place enough material on record to indicate that he was given money for Goa elections. While pronouncing the verdict, the judge had read the following excerpt in open court:

"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 of AAP".

ED has filed a counter-affidavit against Kejriwal's petition, stating that he assisted in the formulation of the Delhi liquor policy, which allegedly enabled liquor companies to recoup the bribes paid as profits. It is the central agency's case that Kejriwal was "directly and indirectly" involved in the process connected with the "proceeds of crime", amounting to Rs. 100 crores.

The Delhi CM, on the other hand, refutes ED's claims in his rejoinder. He says that the agency coerced witnesses to give statements against him. Challenging the arrest as "illegal", Kejriwal adds that his arrest is a classic case of ruling BJP government misusing the ED to crush political opponents. It is further averred that there is no proof or material demonstrating that AAP received funds or advanced kickbacks from the South group, let alone utilizing them in the Goa election campaign.

Background

To recap, the Delhi CM was arrested in the case on March 21, following denial of interim protection by the Delhi High Court. He moved the Supreme Court on the night of his arrest itself, however, this petition was withdrawn the next day as it was clashing with ED's application for remand before the Trial Court. Senior Advocate Dr AM Singhvi, on behalf of Kejriwal, had mentioned to a Justice Sanjiv Khanna-led Bench at the time that Kejriwal would fight the remand and come back.

Following the arrest, although the remand was resisted, the AAP chief remained in custody. At first, on March 22, the Trial Court remanded him to 6 days' ED custody. Later, the same was extended by 4 days. On April 1, he was remanded to judicial custody till April 15.

When the matter was listed on April 15, Kejriwal's judicial custody was extended till April 23. On the next hearing, the custody came to be extended till May 7.

ED alleges that Kejriwal was the kingpin and key conspirator of the alleged Delhi Liquor Policy scam and there are reasons to believe on the basis of material in its possession that he is guilty of the offence of money laundering. Relying on Section 70 PMLA, the agency avers that Kejriwal (being national convener of AAP) is vicariously liable for his party utilizing Rs 45 crores (part of proceeds of crime) for Goa elections.

AAP leaders Manish Sisodia and Sanjay Singh are also accused in the case. While Sisodia continues to remain in jail, Singh was recently granted bail by the Supreme Court pursuant to a concession given by the ED. In the latest development, a Delhi court has reserved orders on Sisodia's plea for regular bail in the money laundering and corruption cases related to the alleged Delhi Liquor Policy scam. The verdict is to be pronounced on April 30.

In related news, 3 public interest litigations were filed before the Delhi High Court seeking Kejriwal's removal from the post of Delhi Chief Minister. All three were junked by the High Court (click here, here and here). A PIL, filed by a law student seeking release of the Delhi CM on extraordinary interim bail was also dismissed by the Delhi High Court.

Case Title: Arvind Kejriwal v. Directorate of Enforcement, SLP(Crl) 5154/2024