Delhi HC denies interim relief to Kejriwal, asks ED to respond by 2 April

The Delhi High Court on Wednesday refused to grant interim relief to chief minister Arvind Kejriwal, arrested by the Enforcement Directorate (ED) in a money laundering case linked to the alleged Delhi excise policy scam, saying the matter raises important issues that cannot be "summarily" decided without seeking the agency's stand.

Justice Swarana Kanta Sharma issued notice on the Aam Aadmi Party (AAP) leader's petition challenging his arrest and the subsequent remand granted to ED, and asked the agency to file its response, including on interim relief, before 2 April.

The judge, in the order, stated that the matter would be taken up for final disposal on 3 April and no adjournment would be granted.

Seeking relief for Kejriwal, senior advocate Abhishek Singhvi said he was arrested based on "uncorroborated" statements of two co-accused and called them "Jaichands and Trojan horses" for their "betrayal".

"Democracy itself is involved. Basic structure is involved. Level playing field is involved. Even an hour spent in custody is far too long if arrest is illegal," he contended, and alleged that Kejriwal was arrested just before the Lok Sabha elections to "disable" him and his party.

The court, however, rejected his contention that no reply is required to be filed on behalf of the respondent. "This court deems it appropriate to issue notice of the main writ petition as well as application for grant of interim relief, returnable on 03.04.2024," the court said. "The Directorate of Enforcement will ensure that replies are filed to the main petition as well as the application for interim release of the petitioner by 02.04.2024."

Kejriwal, who was arrested on 21 March and subsequently remanded to the ED's custody until 28 March by a Delhi court, sought immediate release on the grounds that his arrest was illegal.

Additional solicitor-general S.V. Raju, appearing for the ED, said the "bulky" petition was served upon them only on Tuesday, and time should be given to bring their stand on record. For interim relief as well, appropriate time should be given to respond, he said.

During the hearing, Singhvi, appearing for Kejriwal, said the coercive action was based on uncorroborated statements of co-accused-turned-approvers, Raghav Magunta and P. Sarath Chandra Reddy, and there were several "glaring issues" that needed immediate decision by the high court either way. "History looks harshly on these Jaichands and Trojan horses. They gave daga, betrayal," he said.

Justice Sharma observed that it would be unfair to not give an opportunity to the ED to rebut the stand of the petitioner by filing a detailed response, especially when the relief in the main petition as well as interim application, i.e. his release, is similar and identical.

"In this court’s opinion, such important questions and issues cannot be summarily heard and decided by giving opportunity to only one party.., especially when a copy of the petition was provided to the Directorate of Enforcement yesterday itself, and the short note of arguments and compilation of judgments relied upon by them were provided to the court as well as the learned ASG during the hearing itself," the order said.

The court observed that the ED may be in possession of some "additional material", collected during the custodial interrogation of the petitioner, which may be crucial to decide the present case.

"Thus, the reply by the Directorate of Enforcement is essential and crucial to decide the present case, and therefore, the contention of the learned Senior Counsel for the petitioner that no reply is required to be filed on behalf of the respondent is rejected.

"This court remains conscious of the fact that to reach a conclusion as to whether the petitioner herein is entitled to immediate release or not, this court will necessarily have to decide the issues raised in the main petition, as those issues are the edifice of arguments of the learned Senior Counsel for the petitioner seeking immediate release of the petitioner," it added.

In the order, the court also said any release order from custody would amount to enlarging the petitioner on bail or interim bail as an interim measure and its writ jurisdiction was not a "ready substitute" of a bail application.

Singhvi contended the arrest of a sitting chief minister on the cusp of elections after a model code of conduct had come into force was against the basic structure and the concept of a "level playing field" for polls. He alleged that the arrest was without any "necessity", as mandated under the provisions of PMLA.

"Object of the arrest was not to find material but to disable me and my party politically. My prayer is, release me now", he argued. "Of course, a sitting CM can be arrested. The question is the timing."

The senior lawyer also argued that any "non-cooperation" cannot become a ground for arrest, adding, "Non-cooperation is the most abused phrase since ED got hyperactive".

Singhvi also claimed that exculpatory statements in favour of the accused were suppressed by the agency which was making a "mockery of fair process". He also alleged that the agency's request for time to file a response was motivated and a delay tactic.

"Democracy itself is involved. Basic structure is involved. Level playing field is involved. Even an hour spent in custody is far too long if arrest is illegal," Singhvi said. He added that the vicarious liability cannot be imposed on Kejriwal for any alleged violation of PMLA by his party.

On 22 March, the trial court remanded Kejriwal to the ED's custody until 28 March "for his detailed and sustained interrogation".

The case pertains to the alleged corruption and money laundering in formulating and executing the Delhi government's excise policy for 2021-22, which was later scrapped.