SC questions ED on timing of Kejriwal's arrest ahead of LS polls

Terming life and liberty as "exceedingly important", the Supreme Court on Tuesday questioned the Enforcement Directorate (ED) 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 gap between initiation of adjudication proceedings in the case and the action of arrest, saying 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, the ED will have to show how the 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 alleged excise policy scam case, was divided into two parts — the first part was in favour of Sisodia and the second against him. "You (Raju) have to tell us which part of the Sisodia verdict does the petitioner (Kejriwal) case lie," the bench said.

Justice Khanna said the third important question relates to the 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 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 bail to an accused — an opportunity given to the prosecutor to oppose bail, and second, the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the offence and is not likely to commit any offence while on bail.

The bench asked 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 was bothering the court was the time taken between initiation of proceedings and repeated complaints being filed, because this has consequences as the 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 only five statements had named the Aam Aadmi Party chief. He pointed out that the ED was initially opposing the bail plea of the arrested accused in the case, but once they named the Delhi chief minister, the probe agency chose to not oppose their bail plea.

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

On Monday, the SC questioned the non-appearance of Kejriwal before the ED despite repeated summonses for recording of statements, and asked if he could 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 Delhi's Tihar jail under judicial custody following his arrest on 21 March in the case. The SC had issued a notice to the ED on 15 April and sought its response to Kejriwal's plea. On 9 April, the Delhi High Court had 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.