SC questions ED on timing of Kejriwal's arrest ahead of LS polls, seeks its reply

NEW DELHI: Terming life and liberty as "exceedingly important", the Supreme Court on Tuesday questioned the Enforcement Directorate on the timing of Delhi Chief Minister Arvind Kejriwal's arrest ahead of the general elections in the excise policy-linked money laundering case.

A bench of Justices Sanjiv Khanna and Dipankar Datta, which continued hearing on the Kejriwal's plea challenging his arrest for the consecutive day, posed several queries to Additional Solicitor General S V Raju, appearing for the ED, and sought his reply on Friday.

"Life and liberty are exceedingly important. You can't deny that," the bench told Raju and sought his reply, saying, "the last question is with regard to the timing of the arrest, which they have pointed out, the timing of the arrest, soon before the general elections."

The bench also flagged the long time gap between initiation of adjudication proceedings in the case and the action of arrest, saying the section 8 of the Prevention of Money Laundering Act (PMLA) provides a maximum limit of 365 days.

The apex court is likely to continue hearing on Kejriwal's plea on Friday as the two judges will be sitting in different combinations from Wednesday.

It said, "Mr. Raju, we have some questions, which we would like you to answer, when you make your submissions. First is without there being any adjudicatory proceedings, can the ED initiate a criminal proceedings in view of several judgements of this court on PMLA."

The bench said in this case there are no proceedings of attachments so far and if there are any such proceedings, then the ED will have to show how petitioner (Kejriwal) is connected to it.

Justice Khanna said the verdict on the bail plea of former deputy chief minister Manish Sisodia, who is in custody in the excise policy scam case, was divided into two parts – the first part was in favour of Sisodia and the second part was against him.

"You (Raju) have to tell us which part of Sisodia verdict does the petitioner (Kejriwal) case lie," the bench said.

Justice Khanna said the third important question relates to ED's power of arrest as it is the reason why Kejriwal has repeatedly approached the court.

"Look, they have not openly stated but it is quite apparent why they are repeatedly coming up against the remand because what they believe is that the threshold of section 19 of PMLA casts an onus on the prosecution and not on the accused," he told Raju. Elaborating his question, Justice Khanna said that under section 19 of the PMLA, the threshold is fairly high whereas the onus shifts on the accused when he seeks bail under section 45 of the Act.

Section 19 of the PMLA empowers the ED to arrest persons based on the material in its possession, providing a reasonable basis to suspect that an individual has committed an offence punishable under the law.

Under section 45 of the PMLA, there are two conditions for grant of bail to an accused which include the prosecutor be given an opportunity to oppose the bail plea and second the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

The bench told Raju, "So, how do we interpret it? Do we make the threshold much higher and ensure that the standard is the same as to find the person who is guilty but then we have to deal with benefit of doubt and other things?"

It added that what is bothering the court is the time gap between the initiation of proceedings and the repeated complaints being filed because all this have consequences as PMLA provides for a maximum of 365 days.

At the outset, senior advocate Abhishek Singhvi, appearing for Kejriwal, took the court through the statements of witnesses, approvers and accused in the case and said that only five statements had named the Aam Aadmi Party chief.

He pointed out that the ED was initially opposing the bail plea of accused arrested in the case but after they had named the Delhi chief minister, the probe agency chose to not oppose their bail plea.

The senior lawyer referred to the 2022 verdict of apex court in Vijay Madanlal Choudhary and 2023 verdict in Pankaj Bansal case and said this court has ruled that the ED is not expected to be vindictive and it must act with the highest degree of fairness. He said the term 'proceeds of crime' need to be interpreted strictly as the possession of unaccounted property acquired by illegal means may be actionable for tax violation, but not necessarily proceed of crime.

On Monday, the top court questioned the non-appearance of Kejriwal before the ED despite repeated summonses for recording of statements, and asked if he can challenge the arrest in a money laundering case related to the excise policy scam on the ground of non-recording of his version.

Kejriwal is currently lodged in the Tihar jail here under judicial custody after his arrest on March 21 in the case.

The top court issued a notice to the ED on April 15 and sought its response to Kejriwal's plea.

On April 9, the high court upheld Kejriwal's arrest, saying there was no illegality and the ED was left with "little option" after he skipped repeated summonses and refused to join the investigation.

The matter pertains to alleged corruption and money laundering in the formulation and execution of the Delhi government's now scrapped excise policy for 2021-22.