AAP to be made an accused in Delhi excise policy case, ED tells Supreme Court

The Bench rises. The matter will be heard again at 2:30 pm tomorrow i.e. on May 17. 

ASG Raju says that co-accused Vijay Nair was neck-deep in the case and that he was staying in a Minister’s house. 

Addressing this, Justice Khanna remarks that a lot of people stay in Ministers’ houses, can’t say they are involved. 

Also Read: CBI arrests Vijay Nair in Delhi Excise Policy case

CBI arrests Vijay Nair in Delhi Excise Policy case

Lookout notices were issued against Nair and 7 others last month

ASG Raju argues in relation to ​Section 70 of the PMLA​ under which AAP can be impleaded as an accused in the case. The provision deals with the liability of a person heading a ‘company’. 

“Kejriwal is the national convenor of AAP, the highest in the organizational structure. He is involved in decision-making. He was in-charge of AAP at the time of offense. He was intrinsically involved in the Delhi Liquor Policy.”

At this point, Justice Khanna refers to an argument made by Solicitor General Tushar Mehta in the ​electoral bonds case​. Mr. Mehta intervenes to remark that this is not a case of political funding, but a case of corruption. 

[The ED’s claim that Mr. Kejriwal is “vicariously liable” for the offence of money laundering could result in AAP being subsequently impleaded as an accused in the case. In such a scenario, the ED could have the political party’s assets attached or confiscated as per the provisions of the PMLA.] 

Justice Khanna says that the ED was in a position to postpone the arrest or was in a position to have arrested Kejriwal before. 

“The enquiry of the court should stop at the date of the arrest. The ED cannot rely on material gathered post the arrest”, the judge asserts. 

Justice Khanna asks how the alleged kickback money, already spent, could be recovered. In response, the ED lawyer says that the property of equivalent value can be attached. 

SC then points out that provision was meant for people outside India. Asks ED for a note on the point. 

ASG SV Raju reiterates that the ED has adequate evidence to arrest the Delhi CM and that it was not fuelled by any political motivation. 

“Kejriwal did not meet persons in liquor business for charitable motives”, he adds. 

The Directorate of Enforcement (ED) on Thursday accused Delhi Chief Minister Arvind Kejriwal of making public utterances, which amounted to a “slap on the system”, on the very first day after he came out on interim bail granted to him by the Supreme Court in the liquor policy case for campaigning in the Lok Sabha elections.

Read more here. 

ED says Kejriwal sees himself as a special person, accuses him of remarks ‘slapping the system’

ED accuses Arvind Kejriwal of influencing voters, violating bail order; lawyers threaten affidavit in response to ED's objections.

ASG Raju further argues that at the time of arrest, the Investigating Officer needs to consider if he was in possession of material backing the accusation that the person has taken kickbacks to the tune of Rs. 100 crore. Other considerations or elaborate evidence would be considered at the time of bail to decide if the accused was prima facie innocent or guilty. Asking to consider every bit of evidence, positive and negative, at the time of arrest, would be like putting the cart before the horse, he reasons. 

Addressing arguments that exculpatory material was allegedly ignored by the investigating officer before arresting the Delhi CM, ASG Raju says –

“....reason to believe’ for going ahead with arrest under Section 19 of the PMLA does not require an elaborate discussion of material (evidence) on the part of the probe officer. The officer is not required to give a judgment.” 

Read The Hindu’s detailed explainer on this issue here. 

The legal issues surrounding Arvind Kejriwal’s arrest | Explained

Arvind Kejriwal arrest: The Hindu explores the legal issues surrounding the arrest of Delhi CM Arvind Kejriwal by the ED, including what legal contentions have been raised during the proceedings and what do judicial precedents say?

ASG Raju says that there is evidence against Mr. Kejriwal under Section 4 of the PMLA (links/involvement with proceeds of the crime and projecting it as untainted property). 

“The probe officer does not have to write an essay before arrest...There is a statement that K. Kavitha would meet Kejriwal in connection with starting a liquor business”, he adds. 

ASG Raju says that a complaint against AAP is “in the pipeline”. He says that AAP will be impleaded as an accused in the case. 

Two days back, ED made a similar statement before the Delhi High Court as well while the Court was hearing former Deputy CM Manish Sisodia’s bail plea.

Delhi excise scam case: AAP to be made accused in money laundering case, ED tells Delhi HC

Delhi excise scam case: The ED contended before the Delhi High Court that it will make the Aam Aadmi Party an accused in the money laundering case stemming out of the Delhi excise policy scam.

ASG Raju says that two new complaints will be filed by the ED – against the Delhi CM as well as AAP. 

He says that there is evidence to suggest that Kejriwal “demanded” Rs. 100 crore. It was generated, sent to Goa and used for campaigning. He clarifies that this evidence was earlier not used since AAP was not impleaded as an accused in the case. 

“Rs. 100 crore was sent to AAP. But that part was not used as the party was not an accused....We have direct evidence to prove that Kejriwal stayed in a seven-star hotel in Goa. His bills ran into lakhs. A portion of it was paid from the general administrative department and the rest by Charanpreeet Singh. This is solid evidence”, the ED lawyer adds. 

The Bench has reconvened. The hearing has resumed. ASG SV Raju is arguing on behalf of the ED. 

The Bench has risen for the lunch break. The hearing on the Delhi CM’s plea challenging his arrest by the ED will resume at 2pm. 

Justice Khanna asks whether ASG Raju is arguing that the Court has a greater sweep of powers while adjudicating under Section 45 of the PMLA (for bail) than under Section 19 of the PMLA (examining the legality of arrest). 

Additional Solicitor General SV Raju makes supplementary submissions. 

He says that the ED officer need not reveal or record every bit of material he has in his possession in the arrest order, though he should consider every one of these materials before going ahead with the arrest. 

Senior advocate AM Singhvi says if Mr Mehta is complaining about what Kejriwal says, then he will have to file an affidavit on what a top Government Minister has said about the Supreme Court’s grant of interim bail. 

SG Tushar Mehta takes strong exception to Kejriwal reportedly saying that he has to go back to jail on June 2 and if the people vote for the ‘broom’, then he will not have to. 

Mehta says this is a “slap” on the system since the Court had specifically told him not to speak on the case while granting him interim bail.

Addressing this, Justice Datta says that he has to surrender on June 2 as part of the order. The judge points out that the prohibition on Kejriwal was specifically on discussing his ‘role’ in the case.

Justice Datta further adds that the part of Kejriwal’s speech about voting for the ‘broom’ to retain his freedom was merely an “assumption”.

Also Read: Will be out of jail on June 5 if INDIA bloc wins Lok Sabha poll, says Arvind Kejriwal

Will be out of jail on June 5 if INDIA bloc wins Lok Sabha poll, says Arvind Kejriwal

Delhi Chief Minister and AAP national convener Arvind Kejriwal on Monday said, “I will have to go back to jail on June 2, but if the INDIA bloc forms the government [at the Centre] on June 4, I will come out on June 5.” Mr. Kejriwal made the comment during an interaction with party councillors, his first since being released from jail last week.

Justice Datta says that while examining the evidence before him, an Investigating Officer (IO) has to be fair. The judge adds that an IO cannot ignore exculpatory material while only taking cognisance of incriminating material. 

“If he ignores the latter (exculpatory evidence) absolutely and says I have reasons, would it not afford ground for bail?”, the judge asks. 

Senior advocate Dr. AM Singhvi appearing for the Delhi CM had earlier alleged that non-incriminating prior statements of approvers are not a part of the court’s record. 

Addressing this contention, Justice Khanna points out there are also countries which treat money laundering as a civil offence. The judge says that the Court’s ambit in the case is only to examine the contours and requirements under Section 19 of the PMLA. 

“Judicial review is based on whether a reasonable person finds a legal provision fair”, he adds. 

Highlighting India’s international obligations in combating money laundering offences, SG Mehta says –

“Money laundering is a global offence. India is not a standalone country with money laundering problems. We are part of a global group. There are two international conventions - the UN Vienna 1988 Convention and The United Nations Convention Against Transnational Organized Crime. Internationally, the Financial Action Task Force (FATF) has been constituted. They conducted a peer review. PMLA complies with FATF guidelines. Our creditworthiness internationally depends on our performance in combating money laundering.” 

The order prohibited him from making any comments with regard to his role in the liquor policy case. He would not interact with witnesses or have access to official files connected with the case. He should furnish bail bonds for ₹50,000 with one surety to the satisfaction of the Jail Superintendent. Mr. Kejriwal has to surrender on June 2.

Read more here. 

SC grants interim bail to Kejriwal till June 1; bars him from visiting CMO or signing any official files

The Bench refused the request of senior advocate Abhishek Singhvi, appearing for Mr. Kejriwal, that the interim bail be granted till June 5 - a day after the votes are counted on June 4.

Justice Datta says that the ambit of the Sessions Judge while examining bail under the PMLA is restricted. 

“The Sessions Judge cannot go into the question of the validity of arrest. Besides, the onus is on the accused to prove he is prima facie innocent to get bail”, he asserts. 

Justice Datta asks SG Mehta whether a PMLA accused can raise the ground of invalidity of arrest while seeking bail under Section 45 of the Act. 

[Under PMLA, bail can be granted to an accused in a money laundering case only if twin conditions are satisfied - there should be prima facie satisfaction that the accused has not committed the offence and that he is not likely to commit any offence while on bail]

Objecting to SG Mehta’s contention that special treatment is being meted out to politicians, Justice Khanna says – “We are looking at the parameters of Section 19 of the PMLA. Do not say there are influential persons who can come directly to the High Court and common people who cannot”. 

SG Tushar Mehta argues – “The ED investigating officer is empowered under Section 19(1) of the PMLA to exercise executive power to consider the material in his possession to entertain reasonable doubts that a person is prima facie guilty of an offence under PMLA and should be arrested. The probe officer does not weigh evidence, in favour and against a person zeroed in for arrest, like a judge.” 

The Court deliberates upon the maintainability of Mr. Kejriwal’s petition against arrest and the ED’s argument that there should not be a mini-trial in a constitutional court for certain influential persons. 

Justice Khanna says there are instances in the past in which the Supreme Court had entertained Article 32 petitions directly and given relief from arrest. 

“Is your case that if an arrest is effected under Section 19 of PMLA, a writ petition under Article 226 will not arise? You can only go to the Sessions Court?”, Justice Dipankar Datta asks SG Mehta. 

“It is self-restraint exercised on the part of Your Lordships”, the SG replies. 

Additional Solicitor General (ASG) SV Raju also appearing for the ED says that the first remand cannot be challenged after the Sessions Court has passed subsequent remand orders. 

Solicitor General (SG) Tushar Mehta appearing for the ED questions the maintainability of the petition filed by Mr. Kejriwal. He says that the procedure for arrest under Section 19 of the PMLA is cast-iron. 

“The authority who decided the arrest is an officer not less than the rank of Deputy Director”, he adds.