Breaking: No Interim Relief To Arvind Kejriwal, Delhi High Court Issues Notice To ED On Plea Challenging Arrest And Remand

Nupur Thapliyal

27 March 2024 1:11 PM GMT

  • Breaking: No Interim Relief To Arvind Kejriwal, Delhi High Court Issues Notice To ED On Plea Challenging Arrest And Remand

    The Delhi High Court today issued notice on a plea moved by Chief Minister Arvind Kejriwal challenging his arrest by the Enforcement Directorate (ED) and six days of remand in the money laundering case related to the alleged liquor policy scam case.Justice Swarana Kanta Sharma however declined the sitting CM any relief for now and issued notice on his interim application seeking...

    The Delhi High Court today issued notice on a plea moved by Chief Minister Arvind Kejriwal challenging his arrest by the Enforcement Directorate (ED) and six days of remand in the money laundering case related to the alleged liquor policy scam case.

    Justice Swarana Kanta Sharma however declined the sitting CM any relief for now and issued notice on his interim application seeking immediate release.

    This was after Additional Solicitor General SV Raju appearing for ED submitted that Kejriwal's counsel had not given the agency a copy of the petition. He submitted that the petition was given at the last minute, and the Enforcement Directorate needed to file a reply and point out certain facts.

    "Any order passed in the application for interim release of petitioner [Kejriwal], pending disposal of his main petition without calling for reply of ED, at this stage, would rather amount to deciding the main petition itself," Justice Sharma said.

    The petition was moved on Saturday (March 23) however as per ED, a copy of the petition was served on them only yesterday.

    Senior Advocate Abhishek Manu Singhvi appearing for Kejriwal had submitted that the challenge was to remand itself and argued the matter did not require any replies. It was also submitted that it was not possible for them to serve a copy of the petition earlier since the Registry was closed on Saturday.

    Following which Justice Sharma had indicated that she will issue notice on the main petition and pass orders regarding the plea on interim relief.

    Significantly, Kejriwal's remand is to end tomorrow and he will be produced before the Rouse Avenue Courts in the city.

    While declining any interim relief, Court said that to reach a conclusion as to whether Kejriwal is entitled to immediate release or not, it will necessarily have to decide the issues raised in the main petition.

    "The Court while hearing and deciding a case is duty bound to hear both sides fairly keeping in mind the principles of natural justice. Thus, the reply by Directorate of Enforcement is essential and crucial to decide the present case, and therefore, the contention of the learned Senior Counsel for the petitioner that no reply is required to be filed on behalf of the respondent is will be unfair to not give an opportunity to the Directorate of Enforcement to rebut the same [submissions made by Kejriwal's counsel] by way of filing of a detailed response," Justice Sharma said.

    The judge added that it cannot be presumed that ED will have no reply to file and will remain bound only by the contentions raised before the Trial Court. “Moreso, since there may be some additional material in the possession of the investigating agency, collected during the custodial interrogation of the petitioner herein, which they may wish to place before this Court, which may be crucial to decide the present case. Such material may also be crucial for the petitioner himself,” the court said.

    It further held that any release order from custody will amount to enlarging Kejriwal on bail or interim bail and the writ jurisdiction of the Court under Article 226 of the Constitution is not a substitute for recourse to the remedy of bail under Section 439 CrPC.


    Singhvi argued that in Vijay Madanlal's case it was held that Section 50 of the PMLA was the basis for inquiry and that the proceeds of crime were the focus. However, in this case, no Section 50 PMLA statement was recorded against Kejriwal and that the object of arrest had nothing to do with the PMLA, but was to create a non-level playing field in the upcoming general elections.

    It was stated that the three phrases "material in possession", "reason to believe" and "guilty" are vital conditions for arrest under Section 19 PMLA. However, there was no necessity to arrest Kejriwal since the agency was not even aware of his role in the alleged scam, Singhvi said.

    Reliance was then placed on the Supreme Court's judgement in the case of Arnesh Kumar v State of Bihar which laid down the guidelines for curbing unnecessary arrest. It was argued that at the non-trial preliminary stage, even assuming all material, there has to be proof of the necessity of arrest, and the totality of statements cannot form the basis for the same.

    Singhvi argued that "non-cooperation" was one of the most abused phrases by the ED, since an accused could not be compelled to give a disclosure of confession against himself, which would be violative of Articles 20 and 21.

    It was submitted Kejriwal's arrest directly impinges on the basic structure of the Constitution- free and fair elections, as the agency had no reason to pick him up just two months prior to elections. "Although it may seem a matter of criminal law, a sitting Chief Minister being arrested a week before general elections would go to the heart of democracy which ensured a level playing field for free and fair elections," he said.

    Singhvi also suggested that the central probe agency compelled the approver to give a statement against Kejriwal. "In the first step, there is nothing against me, the accused. Then, after three or four statements, you arrest that person (approver). He suffers in jail for a while. He is put under deep pressure. He is made to apply for bail. The ASG tells the court that there is no reason to oppose the bail. So the man gets bail. Then he comes out and makes a statement against me. And then he gets pardon."

    Singhvi then pointed that ED has quantified proceeds of crime to be 45 crores. However, the same accusation in the same liquor scam was dealt with and rejected in Manish Sisodia's case by the Supreme Court, he said. "The amount was the same, quantification was the same and name of the accused being different makes no difference," he added.

    Coming to the issue of Kejriwal's vicarious liability qua the allegations levelled against his political party, Singhvi argued Section 70 of PMLA applies to companies, and the language of the provision doesn't address political parties. "Political parties are addressed under the Representation of People Act and that the definition of a political party cannot be subsumed under the RP Act without PMLA naming political parties."


    Kejriwal was arrested on March 21. Next day, the trial court had remanded him to ED custody till March 28.

    He was produced before the trial court following his arrest by the central probe agency, hours after a division bench of the Delhi High Court refused to pass orders granting him interim protection from coercive action.

    Kejriwal had skipped nine summons issued to him by ED. Aam Aadmi Party leaders Manish Sisodia and Sanjay Singh are also accused in the case and are presently in judicial custody.

    A PIL has been filed in the High Court seeking removal of Kejriwal from the post of Chief Minister. Another PIL seeks to prevent him from issuing directions while being in ED custody. Both pleas have been filed by one Surjit Singh Yadav, who claims to be a social worker, and are yet to be listed for hearing.

    Following his arrest, Kejriwal had promptly moved an urgent petition before the Supreme Court challenging his arrest. However, the same was withdrawn later.

    Moreover, he has previously moved the Delhi High Court challenging the summons issued to him by the central probe agency. He has also filed an application seeking interim protection. The matter is fixed for hearing on April 22.

    Earlier, ED had filed two criminal complaints against Kejriwal in city's Rouse Avenue Courts alleging non-compliance of the summons by him. Kejriwal has skipped the summons, claiming that they are illegal.

    ED has alleged that the excise policy was implemented as part of a conspiracy to give wholesale business profit of 12 percent to certain private companies, although such a stipulation was not mentioned in the minutes of meetings of Group of Ministers (GoM). Kejriwal is the "kingpin", ED alleged.

    The Central agency has 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.

    Nair was acting on behalf of Chief Minister Arvind Kejriwal and Manish Sisodia, according to the agency.


    Citation: 2024 LiveLaw (Del) 368

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