'Condemned Without Hearing': ED Tells Delhi High Court Over Adverse Remarks In Excise Policy Case, Notice Issued

The Delhi High Court on Tuesday (March 10) issued notice on Directorate of Enforcement's petition (ED) seeking expunging of certain adverse observations made by a Special Court while discharging all accused persons, including AAP leaders Arvind Kejriwal and Manish Sisodia in the excise policy corruption case.After hearing the parties, Justice Swarana Kanta Sharma issued notice on the ED's petition and asked the respondents to file their response. Appearing for the central agency, Additional Solicitor General SV Raju submitted that the trial court had passed the remarks against the ED while deciding the case lodged by CBI. Meanwhile senior advocate Vikram Chaudhari appearing for one of the respondents on advance notice said that observations were made on the merits of the matter and were not personal. ASG Raju however said, "PMLA (case) is not before the judge. It is a CBI case. Proceeds of crime wasn't there before the judge. He (Kejriwal) was not arrested for money laundering in CBI case".To this the court orally remarked, "These are general observations". However ASG Raju said that these were general observations which went against the agency. The court however orally said, "I am sure this is nothing to do with the case in question. I have to hear Mr. Raju only to see whether such remarks could have been made".Raju meanwhile argued, "In a matter where ED has no concern, he could have made this observations provided the learned judge heard us. Third party matter where ED had no concern, there was no point of making such observations. The judge had no business to deal with this…..This affects us. ED has been condemned without hearing".The court however asked, "My question is, these observations are general, nothing to do in the case in question…"Meanwhile appearing for another respondent Senior Advocate N Hariharan said, "They have taken one para from here another from there. This has to be taken into entire context. Otherwise it will be piecemeal."The court however said that the entire judgement was under challenge. It said,"When I will decide that case, I will be reading this. They will accept notice today and this will be fixed on same date. I will hear both matters together". The high court had issued notice on CBI's petition challenging the discharge order on Monday. 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. The High Court on ...

'Condemned Without Hearing': ED Tells Delhi High Court Over Adverse Remarks In Excise Policy Case, Notice Issued

Nupur Thapliyal

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'Condemned Without Hearing': ED Tells Delhi High Court Over Adverse Remarks In Excise Policy Case, Notice Issued

Nupur Thapliyal

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