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Synopsis

Arvind Kejriwal was remanded to ED custody until March 28 by Special Judge Kaveri Baweja of the Rouse Avenue Court, after a detailed 32-page remand application was filed by the Enforcement Directorate (ED).

In this application, the ED characterized Delhi Chief Minister Arvind Kejriwal as the primary instigator and central figure in the purported irregularities surrounding the 2021-22 Delhi excise policy.

Highlighting Kejriwal's position as the convener of the Aam Aadmi Party (AAP), the ED contended that, "Although summons were issued to the Accused in his individual capacity, there is no legal bar in view of material collected during investigation in causing arrest of the Accused in the dual capacity i.e. in his individual capacity and also as National Convenor of the Political party i.e. Aam Aadmi Party (AAP) which is comprising of Association of Individuals, registered under Section 29­A of the Representation of People Act, 1951 and which would also fall within the definition of 'Company', as contemplated under Section 70 of PMLA".

Additional Solicitor General (ASG) SV Raju, representing the ED, argued that "it is not necessary that a person by whom the offence under PMLA is alleged to have been committed, must have been arrayed as an accused in the predicate offence". Therefore, the requirement for the accused to be directly linked to the scheduled offence under Section 3 of the PMLA is not absolute, he contended.

Moreover, in countering arguments about inducements offered to co-accused to become approvers, ASG highlighted the exception outlined in Section 306 of the Criminal Procedure Code, 1973 (CrPC), which permitted inducements for disclosing information about a crime. The purpose is to aid in apprehending other offenders and recover evidence that would otherwise have remained inaccessible, the ASG added.

Furthermore, the ASG asserted "that under Section 167 Cr.PC, the Magistrate authorizing remand can only examine the record to see whether there exists some material to justify remand and the Magistrate cannot conduct a roving inquiry to test the sufficiency of material at this stage".

In response to these allegations, Senior Advocates Abhishek Manu Singhvi, Vikram Chaudhary, and Ramesh Gupta, representing Kejriwal, refuted the existence of direct evidence against their client. They argued that "the statements had been obtained by ED in lieu of being lenient and by not opposing the grounds of bail to a private person and the ED traded in ‘personal liberty’ and bartered personal liberty with the statements of co­accused against the arrestee and other persons". 

Senior Advocate Singhvi further contended, "ED does not have ‘material in his possession’ on the basis of which there is a ‘reason to believe’ that the applicant Arvind Kejriwal is ‘guilty’ of an offence as per requirement of the Section 19(1) of the Act. It is further submitted that there is gross violation of rules and legal norms and the ED is stated to have indulged in subterfuge and misrepresentations".

Furthermore, Senior Advocate Singhvi asserted that "there was no criminal conspiracy of any nature which could be attributed to the accused in any manner and further since the predicate offence itself did not have any allegations against the accused, the prayer seeking custody of the arrestee must have been rejected". Kejriwal's counsel also highlighted that despite the ongoing investigation since August 2022, the ED had not found it necessary to arrest him until the election schedule was announced, indicating baseless and frivolous allegations.

Senior Advocate Singhvi further argued, "The Enforcement Officer failed to produce any incriminating material to show involvement of accused in any activity of placement, layering and/or integration of any proceeds of crime and thus, there is no violation of provisions of PMLA. It is further submitted that there is no basis to the allegations that the accused has used any proceeds of crime in Goa Elections and ED is levelling false allegations in this regard". 

Case Title: Directorate of Enforcement vs. Arvind Kejriwal (ECIR/HIU­II/14/2022)