Delhi High Court Refuses To Grant Interim Protection From ED Arrest To CM Arvind Kejriwal In Liquor Policy Case

The Delhi High Court on Thursday refused to pass orders granting interim protection from coercive action at this stage to Chief Minister Arvind Kejriwal in the money laundering case related to the alleged liquor policy case. 

“We have heard both the sides. However, at this stage, we are not inclined [to pass any order],” a division bench comprising Justice Suresh Kumar Kait and Justice Manoj Jain said.

However, the bench granted liberty to the Enforcement Directorate to file response to Kejriwal's application seeking interim relief, which forms part of his petition challenging the summons issued to him by the central probe agency in the money laundering case.

Senior Advocate Abhishek Manu Singhvi appeared for Kejriwal. ASG SV Raju along with special counsel Zoheb Hossain represented ED.

The court had yesterday sought ED's response on maintainability of Kejriwal's plea challenging the summons and had listed the case for hearing on April 22. 

During the hearing today, Singhvi contended that the ED was “attempting a non level playing field” at this stage with elections around the corner and that the summons did not provide as to in what capacity was Kejriwal called to be physically present.

“The only object is. Come to my parlour. Don't have coffee. I'll arrest you…. What information on earth do you want. I'll give you,” he said.

Singhvi further said that ED must demonstrate the necessity to arrest as it cannot be a carte blanche to say that merely because the probe agency has the power, it can exercise it whenever.

He said that the action of ED is due to elections and called it “vague, frivolous and motivated.”

On the other hand, Raju opposed the grant of interim relief and contended that Kejriwal cannot go beyond the law. He said that law has to be same for every individual, whether it is a Chief Minister or an ordinary man.

On court's query, Raju responded that Kejriwal has been asked to appear in his personal capacity and not as a Chief Minister or Aam Aadmi Party Chief.

He further submitted that there was material to show that there was a necessity to call him for interrogation.

In the post lunch session, ASG SV Raju submitted that Kejriwal's application cannot be heard as the maintainability of his main petition is itself in question. He said that the application has been “mischievously moved.”

“This (application) is not maintainable. No interim relief can be made out. They can't put the cart before the horse. He can't jump the gun. The court has to hear us on maintainability first. They need to demonstrate first that it's maintainable. Without that, they cannot get (interim relief),” Raju said.

Raju further said that deciding the application will amount to preponing the date of hearing in the main petition, especially where maintainability is the issue.

“When did we say we are calling for arrest? We are calling for interrogation. We may arrest. We may not arrest,” Raju said.

He added that it is the “figment of Kejriwal's imagination” that Aam Aadmi Party is going to be made an accused in the case.

“Neither the Aam Aadmi Party nor Kejriwal is named as an accused. If they are not named as an accused, there is no question of quashing of the stated FIR or the case. It doesn't arise,” he said.

He added: “The FIR is not against them. He cannot ask for quashing of the FIR which is against Vijay Nair or Manish Sisodia unless he has a locus. He doesn't have a locus. He cannot be a person aggrieved unless he says I am Aam Aadmi Party. And if you're Aam Aadmi Party, why you've not made Aam Aadmi Party as the petitioner.”

In rejoinder, Singhvi submitted that conceptually, it is not possible to involve Kejriwal except as the convenor of Aam Aadmi Party.

“Unless your object is to harass me and to make a level playing field which is part of the democracy in free and fair election… there can be no other objective. I cannot put it lower than that. I cannot put it higher than that,” Singhvi said.

Yesterday, ED had opposed the issuance of formal notice on the petition. The probe agency submitted that the petition is not maintainable and sought time to file response on the maintainability.

On the other hand, Singhvi contended that Kejriwal is not running away and will appear, provided he is granted protection and a “no coercive steps” order in his favour.

The court had orally asked Singhvi as to why don't Kejriwal appear in response to the summons and that if he attends to the summons, then only he will come to know whether he is being called as an accused or a witness.

Apart from challenging the summons, Kejriwal's plea seeks to declare Section (2) (s) of PMLA as unconstitutional and arbitrary insofar that it is construed to include a political party within its ambit and sweep.

“Enforcement Directorate ('ED') cannot proceed on an assumption that a 'political party' would be covered under the expression 'artificial juridical person' occurring in Section 2(1)(s) in PMLA and, therefore, the issuance of summons in terms of Section 50 thereof to the office bearers of political party are non-est, blatantly illegal, arbitrary and cannot sustain the test of law or reasonableness,” the plea states.

About the Controversy

ED had filed two criminal complaints against Kejriwal in city's Rouse Avenue Courts alleging non compliance of the summons by him. So far, nine summons have been issued to the Chief Minister by the central probe agency.

Last week, Kejriwal appeared before the ACMM court and was granted bail, subjecting to him furnishing bail bond to the sum of Rs 15,000 and a surety of like amount. That matter has been listed for hearing on April 01.

ED, in its complaints, alleged that Kejriwal failed to comply with the summons issued to him.

Kejriwal has skipped the summons, claiming that they are illegal. However, he informed ED recently that he could be questioned via a videoconferencing link after March 12.

Aam Aadmi Party leaders Manish Sisodia and Sanjay Singh have been arrested in the money laundering case and are presently in judicial custody.

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.

Title: ARVIND KEJRIWAL v. DIRECTORATE OF ENFORCEMENT

Citation: 2024 LiveLaw (Del) 337