Manas Dasgupta
NEW DELHI, Apr 3: Amidst stiff opposition from the Enforcement Directorate, the Delhi High Court on Wednesday reserved its verdict on the Delhi chief minister Arvind Kejriwal’s petition seeking immediate release from the ED custody in the alleged money laundering case in the Delhi liquor policy scam.
Justice Swarana Kanta Sharma, who heard the petition, t reserved the order for Thursday afternoon.
The ED had told the High Court that the Chief Minister was the “kingpin” and the “key conspirator” in the excise policy scam and that, based on the material evidence in the agency’s possession, there were “reasons to believe” that Mr Kejriwal was also guilty of money laundering. The ED made the remarks in an affidavit to the court while opposing Mr Kejriwal’s petition challenging his arrest and remand to the ED custody. Mr Kejriwal is currently lodged in the Tihar Jail in the national capital till April 15.
Mr Kejriwal’s lawyer Abhishek Manu Singhvi and ED advocate additional solicitor general SV Raju traded sharp barbs and hard-nosed legal arguments in equal measure during the hearing on the petition. Mr Raju issued a strong rejoinder to arguments about the timing of Mr Kejriwal’s arrest, declaring “criminals are supposed to be arrested and put in jail”. “Under-trial prisoners have no right to say, ‘we will commit a crime and we will not be arrested because elections are here’. This is completely ridiculous,” Mr Raju declared.
Earlier, Mr Singhvi began his argument by claiming “sole purpose of the arrest (of the Delhi Chief Minister) was to humiliate… incapacitate” the AAP, which is seen by many as the only real challenger to the BJP for Delhi’s seven Lok Sabha seats. “Efforts are being made to break AAP,” he said, arguing that the ED “does not have any evidence” and that the arrest of the sitting Chief Minister was unwarranted, particularly before an election.
“Suppose a political person commits a murder before the election. Will he not be arrested? Will his arrest harm (the election)? You commit a murder and say I cannot be arrested because it will violate…” Mr Raju declared, trying to draw a parallel to the corruption charges against Mr Kejriwal.
The ED – which Mr Kejriwal earlier said had no real evidence of his involvement, much less his central role in the alleged scam – also insisted “a money trail is there… we have traced the money trail.” The ED further waved away claims by Mr Kejriwal that his arrest and that of ex-Deputy Chief Minister Manish Sisodia, was largely based on statements by accused-turned-approvers.
The AAP has pointed to a pattern – the first of multiple statements do not name party leaders, and it is only after arrest and questioning that the accused-turned-approvers change their statements. Responding to this – which question was also posed by the Supreme Court Tuesday, as it gave AAP MP Sanjay Singh bail – Mr Raju argued accused persons may change their statement after being presented with evidence. “When accused is confronted with material (then) they say ‘I was wrong’.”
“You cannot avoid statements and say, ‘No, no… these cannot be trusted. Cash payment was made… cash that was not accounted for. Source of the cash was a bribe… it could be ₹ 100 crore or a little less than that. This has been accepted by the AAP candidate as well,” he continued. “We have WhatsApp chats and statements of hawala operators. We have a lot of data…” Mr Raju insisted the Chief Minister was “personally involved in all of this.”
Mr Singhvi had argued that the ED “does not have any evidence” and that the agency made no attempt to first take his statement; this was when an ED team was at the Chief Minister’s residence. “‘Level playing field’ (before an election) is not just a phrase. It is part of ‘free and fair elections’ which is part of a democratic structure. This case reeks of timing issues,” Mr Singhvi began.
“What is this urgency? I am not talking about politics… I am talking about law,” he continued, arguing the arrest was meant to “demolish Aam Aadmi Party before first vote is cast.” Mr Singhvi also questioned the ED over the issue of multiple summons to the Chief Minister, particularly after the AAP leader had moved the court to challenge the agency’s call.
“…my not responding to summons is a nice point of prejudice… it is a red herring,” he said, referring to the nine letters sent by the ED demanding that Mr Kejriwal join the investigation. “Was there a possibility of Arvind Kejriwal fleeing? Did he try to influence any witness in one-and-a half years? Did he refuse to be questioned?” the senior advocate asked.
Mr Singhvi also referred to the clutch of statements against the Delhi Chief Minister. “…in first statements there will be nothing against me. Some are arrested and, for first time, they give a statement against me and get bail without objection. Then they get pardon and become approver.”
Meanwhile, buoyed by the Supreme Court’s order granting bail to another AAP leader Sanjay Singh, the party called it a “big day for democracy” and hoped its other leaders would also be out of jail and the “mountain of lies” created by the BJP would collapse in the coming days. Ms Atishi, also a Cabinet Minister in the Delhi Government, said for two years, AAP leaders have been targeted in fake cases and arrested.
Singhvi referred to the Supreme Court judgment denying bail to former Deputy CM Manish Sisodia wherein it was observed that the allegation of receiving Rs.100 crore as kickbacks is “somewhat a matter of debate.” “The assertion in the complaint filed with the DoE that kickback of Rs.100,00,00,000 (rupees one hundred crore only) was actually paid by the liquor group is somewhat a matter of debate.”
Questioning the relevance that the cognisance of an offence has on an arrest, Mr Singhvi remarked, “My friend doesn’t describe one thing which the petition is and labels everything that it is not… the petition remains one challenging illegal arrest under Section 19 PMLA. To bring in deliberate issues of bail quashing is uncalled for….The cognizance happened one and half years ago what relevance does it have to my (Arvind Kejriwal) arrest which happened around 10 days ago? How is it of any relevance in a Section 19 arrest petition?”
Mr Raju had apprised the court that the Chief Minister has been arrested in a “dual capacity” – individually as well as in his role as the Convenor of AAP. Elucidating further on how AAP can be impleaded as an accused in this case, he said, “You [AAP] may not be a company but you will be deemed to be a company if you are an “association of individuals.” AAP is an association of individuals.
SG SV Raju apprised the court that the investigation was still at its nascent stage. “They fail to understand the factual position as the present petitioner has come at the threshold of investigation, as far as he is concerned at a nascent stage,” he said. He pointed out that although a writ petition for quashing of the arrest has been filed, it has been argued as a bail application.
“…Some property which has already been attached and provisional proceedings are going on. We also want to attach some other properties of AAP. If we attach they will say election ke time kiya. We are in the horns of a dilemma,” he added.
Mr Singhvi objected to using Section 70 of the PMLA to implead the AAP as an accused and said, “Section 70 PMLA has been falsely, inaccurately and wrongly used. This is complete vicarious liability. Please don’t allow it to happen. Section 70 cannot be applied, it is specifically for companies. AAP is registered under the Representation of People Act, so then different statute cannot be subsumed in the heading of the company under PMLA. There has to be a specific role of the petitioner even for a company, which I am denying. There has to be knowledge, and due diligence on his part,” he said.
Singhvi argued that no evidence had been submitted which shows that the “proceeds of crime” were linked to Mr Kejriwal. “ED is mentioning from rooftop it [PMLA] is a stand-alone statute and the money laundering offence is an independent offence…Today there is no material to show proceeds of crime linking Kejriwal to it,” he added.