Liquor Policy Case: Delhi High Court Grants Time To Arvind Kejriwal, Others To Respond To ED's Plea For Expunging Adverse Remarks

ASG SV Raju along with special counsel Zoheb Hossain appeared for ED.

At the outset, the counsel appearing for the accused sought time to file replies to the petition. On this, Hossain said that there was no requirement of calling for their replies and that all the accused have been duly served with the petition copy.

Raju said that the accused only wanted to delay the proceedings and that no prejudice would be caused to them if an order is passed in the agency's favour.

“I don't understand. Here is a prosecuting agency who says the trial court judge has exceeded jurisdiction. I told them (on the last date) even I make such observations. I was of the opinion i need to decide whether the judge exceeded jurisdiction. You (accused persons) said you will file reply. Now you say you need to read 600 pages. You need one more week, you take one more week,” the judge told the respondents counsel.

When the matter was taken up in the post-lunch session the court granted time to Kejriwal and others to file their response to ED's plea

"Since I passed an order, if they want to say something let them say. Let it be listed for 2nd. We will hear and then pass a final order. They (ED) can start. Maybe you (respondents) won't even start on that date. Only reply is being called for 2nd. Nothing is happening on that day," the court said.

The matter is listed on April 2.

ED has said that it was not a party to the CBI proceedings in any capacity, and was not afforded any opportunity to be heard before the adverse observations were recorded. As per the agency, the situation is “flagrantly violating the fundamental principles of natural justice and judicial decorum.”

“If such sweeping, unguided, bald observations are permitted to stand, which have been passed behind the back of the Enforcement Directorate based on pure conjectures, without anchoring itself on any material or evidence gathered by the Enforcement Directorate since the Court was not concerned with the prosecution complaints filed by the Enforcement Directorate while making these observations, grave and irreparable prejudice would be caused to the public at large as well as the petitioner herein,” the plea states.

For context, the trial court had observed that if investigative agencies such as the CBI or ED were permitted to enter the electoral arena merely on allegations of “cash spending”, “illegal funding”, or “unaccounted expenditure”, the inevitable consequence would be the criminalisation of electoral competition.

“The position is no different, and indeed more restrictive, under the PMLA. The statute cannot be set in motion in a vacuum. It is predicated on the prior existence of a scheduled offence and the generation of “proceeds of crime” therefrom,” the trial court had said.

It had also said that investigations by the State police, the CBI, or the Enforcement Directorate cannot be initiated or sustained solely on allegations of election-funding irregularities and excess expenditure.

The trial court had also observed that PMLA, amongst other enactments, cannot be employed as a substitute for election-law remedies, nor as a device to convert political accusations into prosecutable offences, unless a clear, independent, and cognisable criminal offence, wholly distinct from election-law violations, is prima facie disclosed in accordance with law.

ED says that the paragraphs which concern the investigation independently conducted by the ED under the PMLA deserve to be expunged as it amounts to a “clear case of judicial overreach.”

The agency has said that the observations were made by the special judge without looking at the evidence gathered by it and without even affording it an opportunity of hearing.

The agency has argued that the Special Court was only concerned with whether charges were made out in the CBI case and had no occasion to comment on the separate PMLA investigation.

It has submitted that such remarks, if allowed to remain, would cause serious prejudice to the ED's ongoing proceedings and amount to judicial overreach.

On February 27, the trial court discharged all the 23 accused persons in the case, including political leaders Kejriwal, Sisodia and K Kavitha.

All who have been discharged are Kuldeep Singh, Narender Singh, Vijay Nair, Abhishek Boinpally, Arun Pillai, Mootha Gautam, Sameer Mahendru, Manish Sisodia, Amandeep Singh Dhall, Arjun Pandey, Butchibabu Gorantla, Rajesh Joshi, Damodar Prasad Sharma, Prince Kumar, Arvind Kumar Singh, Chanpreet Singh, K Kavitha, Arvind Kejriwal, Durgesh Pathak, Amit Arora, Vinod Chauhan, Ashish Chand Mathur and Sarath Reddy.

Case TItle: ED v. Kuldeep Singh & Ors