NEW DELHI, Apr 29: The Supreme Court will continue hearing on Tuesday the Delhi Chief Minister Arvind Kejriwal’s plea challenging his arrest by the Enforcement Directorate (ED) in a money laundering case connected with the alleged Delhi liquor policy scam.
A Bench of Justices Sanjiv Khanna and Dipankar Datta on Monday heard extensive arguments from senior advocate Abhishek Manu Singhvi challenging the “illegal arrest” of the AAP supremo. He pointed out that incriminating statements given by approvers have not been corroborated.
The court was told that Mr Kejriwal’s name was not included in 10 documents — including CBI chargesheets and ED prosecution complaint — till December, 2023. He was arrested from his home without any questioning or recording of his statement as required by the anti-money laundering law. “The power to arrest is not an obligation to arrest. Where are the reasons, the material to entertain a reasonable belief of my guilt?” the senior counsel contended. He added that was an enhanced standard for arrest under the Prevention of Money Laundering Act, 2002 (PMLA).
Mr Kejriwal has challenged his arrest in the top court and filed an application for interim release, arguing that the arrest being illegal, his subsequent placement in custody is also unlawful. Asked why Mr Kejriwal has not filed a petition for bail in the trial court, Mr Singhvi told the bench of Justices Sanjiv Khanna and Dipankar Datta that they have approached the Supreme Court because it has “wider jurisdiction.”
The Enforcement Directorate had arrested Mr Kejriwal on March 21 after the Delhi High Court refused to grant him protection. The Chief Minister is currently lodged in the Tihar jail. Mr Kejriwal has argued that the court’s refusal to grant protection cannot be ground for arrest. “The denial in interim of my bail cannot be ground to come to my home for arrest. The arrest did not happen for 1.5 years. They arrested me from my home. They did not record Section 50 statement there,” the counsel said.
In his affidavit, Mr Kejriwal has condemned his arrest as politically motivated, arguing that was meant to provide unfair advantages the ruling party during the ongoing general election. The case, he has argued, is a prime example of the Central government’s misuse of investigative agencies to harass political opponents.
The Enforcement Directorate has argued that Mr Kejriwal’s arrest became necessary due to his “total non-co-operative attitude.” The affidavit said that Mr Kejriwal was avoiding interrogation by not remaining present before the investigating officer despite being summoned nine times and while recording his statement under Section 17 of the PMLA, he was evasive and uncooperative.
Responding to a query from the Bench as to why repeated summons by the ED were ignored by the Chief Minister, Mr Singhvi asserted that evasion of summons cannot be a ground for arrest. On the other hand, the ED in its affidavit filed before the top Court argued that arresting politicians who are “criminals” was not a blow against free and fair elections.
“Treating a politician differently from an ordinary criminal in a matter of arrest would amount to arbitrary and irrational exercise of power of arrest which would violate the principle of equality enshrined under Article 14 of the Constitution,” the agency reasoned.
“Are you not contradicting yourself by saying that his statements under section 50 of the Prevention of Money Laundering Act (PMLA) were not recorded? You don’t appear on summons for recording of statements under section 50 and then you say it was not recorded,” the bench said. It asked what is the investigating officer supposed to do if Kejriwal did not appear on summons. “If you don’t go for recording of section 50 statements, then you can’t take the defence that his statement was not recorded,” Justice Khanna said.
Singhvi said, “Thanks for saying that. Non recording of section 50 statements is not a defence to arrest me for reasons of believing there is guilt.
“I am saying other materials also do not establish my guilt. The ED came to my house to arrest me. Then why can’t ED record my statement under section 50 at my house?” Section 50 of the PMLA deals with the power of ED authorities to issue summons and production of documents, evidence and other materials. Singhvi pointed out that on April 16, 2023, Kejriwal appeared before the CBI in connection with the case and answered all the queries.
“Today, you cannot say that we will arrest you because you did not appear on summons. Can you say that since you did not cooperate, you will be arrested? “Non-cooperation cannot be a ground for criminality or grounds of arrest. This court has last year held that non-cooperation cannot be a ground of arrest under the PMLA,” Singhvi said.
The senior lawyer said the chief minister did not have any immunity from prosecution and asked if he has less rights than a common citizen. Singhvi further submitted that the denial of relief by the Delhi High Court for no coercive action can also be no ground for arrest by the ED.
(Manas Dasgupta)
