Manas Dasgupta
NEW DELHI, Apr 15: The Supreme Court on Monday issued notice to the Enforcement Directorate (ED) on Delhi Chief Minister Arvind Kejriwal’s plea challenging his arrest in connection with the alleged Delhi excise policy scam case.
A bench of Justices Sanjiv Khanna and Dipankar Datta fixed the next hearing in the matter in the week starting from April 29 which would mean that the chief of the Aam Aadmi Party (AAP) would be in jail at least until 10 days after the first phase of the seven-phase Lok Sabha elections begin on April 19.
Senior Advocate A M Singhvi, appearing for Kejriwal, prayed for an earlier date but the court said the date it had given was the earliest it could. The senior counsel said he wanted to show some facts “to shock the conscience of the court. There are some selective leaks…”, and requested it to hear the matter next Friday. But Justice Khanna said he had not come across any such selective leaks. “We will give you a short date, but not possible on the date suggested by you.”
The court’s notice was accepted on behalf of the ED by Solicitor General Tushar Mehta and Additional Solicitor General S.V. Raju, who had appeared on caveat. The court asked the ED to file its response by April 24. Mr Kejriwal has to file his rejoinder to the ED’s reply by April 26.
Mr Kejriwal had moved the Supreme Court challenging his March 21 arrest by the ED after the Delhi High Court had in its order in April 9 found nothing illegal about the Chief Minister’s arrest. A Single Judge Bench of Justice Swarna Kanta Sharma had based its order on the prima facie finding that there was adequate material, including statements of approvers, involvement of middlemen and references that cash was handed over for expenditure in Goa elections.
In a related hearing after the Supreme Court turned down an early hearing, a Delhi court extended Mr Kejriwal’s judicial custody till April 23.
During the hearing on Monday, Mr Singhvi was told by the court to “reserve your arguments” after he continued to press for an earlier hearing. The Supreme Court setback to Mr Kejriwal’s hope of an early hearing (and possible release, to allow him to campaign for the AAP) comes after the Delhi High Court last week rejected the same petition.
The court said the ED had submitted enough material to back its claim – that the Chief Minister was allegedly involved in forming the now-scrapped policy and demanding bribes of ₹ 100 crore. In the High Court Mr Kejriwal argued, vehemently, against his arrest, pointing to the timing of the federal agency’s action; the AAP boss, a vocal critic of the ruling BJP, was taken into custody hours after he was refused protection. That was after he skipped multiple summons alleging a political conspiracy. Eventually Mr Kejriwal’s arrest was ruled valid and his plea dismissed.
Mr Kejriwal has called his arrest an “unprecedented assault on the tenets of democracy” based on “free and fair elections” and “federalism.” The AAP has denied all charges and described the case against its National Convenor as “political vendetta” meant to destroy the party before the election.
“Political considerations can’t be brought before a court of law… the matter before this court is not a conflict between the central government and Arvind Kejriwal. It is a case between Kejriwal and ED,” the High Court had observed.
With reference to the alleged liquor policy scam, the ED has also arrested two of Mr Kejriwal’s colleagues; his ex-deputy, Manish Sisodia, was arrested in February last year and Rajya Sabha MP Sanjay Singh in October. Mr Singh was granted bail this month by the Supreme Court, which asked the ED some tough questions, including asking why he had been jailed for six months without a trial.
The top court also wanted to know why the agency had failed, so far, to recover any of the alleged bribe money. “Nothing has been recovered… there is no trace (of money allegedly received by the AAP as bribes for allotting liquor permits to the ‘South Group’)…” the court remarked.
The ED has repeatedly claimed the AAP conspired to receive ₹ 600 crore in bribes – including from a ‘south group’ led by opposition leader K Kavitha of the Bharat Rashtra Samithi, who has also been arrested – for allotment of retail and wholesale liquor permits for the national capital. On Monday, Ms Kavitha’s judicial custody was also extended till April 23.
Mr Singhvi and advocate Shadan Farasat urged the court to consider the “timing of the Chief Minister’s arrest” by the ED. He said the arrest was timed to prevent the AAP convenor from campaigning for the Lok Sabha election. Mr Singhvi said the Delhi Excise policy case was of September 2022. There was a First Information Report and an Enforcement Case Information Report. There were eight charge sheets. Fifteen statements had been recorded in the case so far. “Mr Kejriwal’s name does not figure in any of these documents,” he submitted. But Justice Khanna drily responded that the lawyer should “reserve his arguments for the next date of hearing.”
Mr Kejriwal had argued that the decision to swoop in and arrest him on March 21, merely days before the general elections, was an instance of ED being misused as a weapon to crush the Opposition and the federal system of governance.
The ED had countered in the High Court that the arrest and subsequent remand of Mr Kejriwal were natural outcomes of painstaking collection of evidence. The agency had informed the High Court that the procedure of arrest was correctly followed. Mr Kejriwal was furnished with the grounds of his arrest in writing. The agency had termed Mr Kejriwal the kingpin and key conspirator of the Delhi Excise “scam.”
The ED had claimed he was involved in the conspiracy of formulation of the excise policy and also engaged in the demanding kickbacks from liquor businessmen in exchange of favours granting in the policy. The agency argued that Mr Kejriwal was involved in the use of proceeds of crime generated in the Goa election campaign of the AAP. He was the party’s national convener and its “ultimate decision-maker.”
The ED had on April 5 submitted in the Delhi court that Mr Kejriwal should not be treated differently just because he wanted to run the government from jail. The ED’s statement came after Mr Kejriwal, who is lodged in Tihar jail had moved an application in court seeking more time for meeting with his lawyers in judicial custody.
Appealing against the high court’s April 9 ruling, Kejriwal questioned the timing of his “illegal” arrest under the Prevention of Money Laundering Act (PMLA), saying it was “in the middle of the election cycle and especially after the declaration of the schedule of General Elections 2024.”
Saying that his arrest was “obviously motivated by extraneous considerations,” he said it “was made solely relying on subsequent, contradictory, and highly belated statements of co-accused who have now turned approvers.” These statements and material were in the ED’s possession for the last nine months but the arrest was made just ahead of Lok Sabha elections, he said in his plea.
Naming some of the co-accused, Kejriwal said the statements of C Arvind, Magunta Reddy and Sarath Reddy, who claim to have met him, don’t suggest that he had done any act of commission or omission within the scope of Section 3 of the PMLA. The statements by two others – Butchi Babu and Raghav Magunta – are entirely hearsay, he said, adding that they had not even met him.
In his petition, Kejriwal said the high court failed to appreciate that statements under Section 164 of the Criminal Procedure Code (CrPC) are not held to be the gospel truth, and can always be doubted by the courts. Section 164 can never be used as substantive evidence of the truth of the facts but may be used for contradictions and corroboration of a witness who made it, he said.
The plea argued that the high court also failed to appreciate that the statement of the co-accused turned approver cannot be the starting point for ascertaining the accused person’s guilt. Moreover, the court failed to appreciate the procedure adopted by the ED in procuring such statements by coercion, on the inducement of bail and exoneration, and hence cannot be ex-facie relied upon to ascertain his guilt, Kejriwal said.
Underlining the urgency of the apex court’s intervention, he said “over and above the issue of illegal curtailment of liberty, the… arrest also constitutes an unprecedented assault on the tenets of democracy, free-and-fair elections and federalism, both of which form significant constituents of the basic structure of the Constitution”.
“The ED has allowed its process to be used and misused by vested interests as an instrument of oppression to not only invade the liberty of the political opponents in the midst of general elections 2024 of such vested interests but also to tarnish their reputation and self-esteem. Such lawlessness cannot be allowed to be perpetrated under any circumstances,” Kejriwal said in his plea.
Saying that the arrest “bears serious, irreversible ramifications for the future of electoral democracy in India,” he said if he “is not released forthwith to participate in the upcoming elections, it will establish a precedence in law for ruling parties to arrest heads of political opposition on flimsy and vexatious charges before elections, thereby eroding the core principles of our Constitution.”
