Delhi Court Remands Chief Minister Arvind Kejriwal To ED Custody In Liquor Policy Case Till March 28

A Delhi Court on Friday remanded Chief Minister Arvind Kejriwal to six days of Enforcement Directorate (ED) custody in the money laundering case related to the alleged liquor policy scam case till March 28.

Special CBI judge Kaveri Baweja of the Rouse Avenue Courts passed the order after Kejriwal was produced today following his arrest last night 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.

Additional Solicitor General SV Raju appearing for the agency had sought 10 days remand. ED alleged that Arvind Kejriwal is the "kingpin" of Delhi excise scam and is directly involved in the use of proceeds of crime accounting to over Rs. 100 crores. Even at the time of search last night, it is alleged that Kejriwal did not give correct facts. "Confrontation is required. We need to recover the money trail. It is a fit case to grant remand," ASG said.

Three Senior counsel- Abhishek Manu Singhvi, Vikram Chaudhary and Ramesh Gupta appeared for Kejriwal.

Singhvi submitted that till yesterday, in the proceedings before High Court, ED did not disclose that Kejriwal is being probed as an accused in the case. He submitted that the threshold for arrest under the Prevention of Money Laundering Act (PMLA) is very high. Section 19 PMLA provides arrest may be effected if the agency, on the basis of material in its possession, has reason to believe that the accused has been "guilty" of an offence punishable under the Act. Singhvi said ED failed to show the "necessity" to arrest the incumbent Chief Minister of the national capital. "There is no direct evidence," he claimed.

Singhvi further urged the Court not to look at remand mechanically and submitted that the issue requires a significant judicial mind. "There are larger issues of democracy involved," he said.

Courtroom Exchange

ASG informed the Court that all compliances under the PMLA had been observed. "His relatives have been informed. Copy of remand application given. Grounds of arrest furnished to Mr. Kejriwal in writing. As far as sub section 2 (of Section 19) is concerned which requires sending to the adjudicating authority the sealed envelope copy of the order of arrest, we have complied," he submitted.

So far as the case against Kejriwal is concerned, ASG read the remand application in court as per which Kejriwal was in constant touch with AAP's former communications in-charge Vijay Nair, who allegedly acted as the middleman between AAP and South Group, the entity which allegedly orchestrated the Excise policy scam. ASG further claimed that the allegations are not only corroborated by statements of the approver (Hyderabad-based businessman P. Sarath Chandra Reddy), but was also supported by Call Data Records.

"Mr. Kejriwal demanded kickbacks from the South Group in exchange of giving favours to them," ED claimed.

Singhvi questioned the genuineness of statements given by Reddy (approver) and criticized the central agency for alleged "tactics" in making a case against Kejriwal. "Witness 1 gives a statement, nothing about Kejriwal. He gives further statements, nothing about Kejriwal. After that, step 2 is arrest the Witness. Step 3 is deny him bail and oppose the bail. Step 4 is one fine morning you have a deal of approver. Step 5 he comes up with brilliant statement next day about Kejriwal. The next step is to record statement of a co-accused. This is the four or five facets. There is neither necessity nor need to arrest. Nothing to show that he cannot give the information without arrest. It is the first time in the history of India that a sitting Chief Minister is arrested."

However, ASG submitted that weightage to be given to an approver statement is a matter of trial. "It can't be seen in a remand."

Singhvi then suggested that the timing of arrest is influenced by the upcoming general elections, Singhvi said, "Four top leaders of the party including him are arrested. This means you have a verdict before the first vote is cast." Chaudhary also said, "Were you waiting for elections to start so that I'm prevented. So that you can prevent me from contesting or participating in the election which is the right of every politician."

ED has alleged that Delhi's excise policy was changed to fund the Goa elections; proceeds of crime of about Rs. 45 crores received from the South Group were used by AAP during the election campaign in Goa in 2021-22. Thus, ED said Kejriwal is liable both individually and vicariously.

"Aam Aadmi party is a beneficiary but it doesn't exist individually. It is a company. Every person who is involved in the functioning of the company is responsible and shall be deemed to be guilty. Apart from personal liability, he (Kejriwal) is also liable to be punished under vicarious liability. Apart from individual role, kindly look at his role as a person responsible for conduct of Aam Aadmi party," ASG argued.

However, Chaudhary submitted that Section 70 of PMLA is to prosecute a company and a firm, and it is not in connection with a political party, which he said is a different entity under the Representative of People's Act.

Lastly, citing non-compliance of as many as nine summons, the agency said the Delhi CM was non-cooperative in investigation and his custody is required to gather information and interrogate him. ASG said there is a history of huge destruction of electronic evidence in the case; large number of phones destroyed and formatted by accused, making it very difficult for the investigating agency to unearth the alleged scam.

Chaudhary submitted that the arrested CM had responded to all 9 summons issued to him by the central agency. It is claimed that the summons were issued to Kejriwal in his personal capacity and not in his official capacity as CM. "Administration of criminal justice system is at stake. This case is of August 2022. Till now, there is one prosecution complaint and five supplementary prosecution complaints. In all these, either in category of accused or suspect or in any form, my (Kejriwal's) name never appeared," he said.

Referring to Section 19 PMLA, Singhvi submitted that remand is not automatic and ED must show the necessity to arrest. "The word necessity isn't there but it is implicit in hundreds of cases. Because the power of arrest isn't equal to the need to arrest. I've the power of course but it doesn't mean there is a need to arrest. What is the necessity in arresting me?...The fact that you need to further trace the money trail is no ground for arrest. It can be a ground of questionnaire, it can be a ground for interrogation. You have the basic material, why should you want further custodial custody?"

The ASG responded that an arrestee cannot decide the necessity of arrest. "When and how a person is to be arrested is the exclusive domain of the investigating officer," he said.

On satisfaction of Section 19, the ASG submitted, "Nothing to show that the arrest is in contravention to Section 19. There is sufficient material that he is guilty of the offence prima facie. Sufficient material not only in his individual capacity but also vicariously. There are series of statements of large number of persons."

Background

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

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).

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.