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Synopsis

Recently, the Rouse Avenue Court, while granting bail to Chief Minister Arvind Kejriwal, criticized the Enforcement Directorate (ED) for acting with bias and failing to provide direct evidence linking Kejriwal to the proceeds of crime in the excise policy case.

Vacation Judge Niyay Bindu held, “This very scenario constrains the court to draw an inference against the investigating agency that it is not acting without bias”. 

The court further noted, “This is also noticeable that ED is silent about the facts as to how the proceeds of crime have been utilized in Assemble Elections at Goa by AAP as admittedly after about two years, the bigger portion of the alleged amount remains to be traced out”. 

Senior Advocate Vikram Chaudhari, representing Kejriwal, argued that no money trail was identified under Section 3 of the PMLA Act, and the alleged proceeds of the crime were speculative, using terms like "approximately." He contended that no incriminating evidence was presented to show Kejriwal's involvement, which is essential for establishing money laundering. There was no proof of cash payments or material showing that AAP received funds or advance kickbacks from the South Group, making the allegations vague. Statements from hawala dealers about alleged cash transfers lacked corroboration and relevance to the case, failing to establish any case under PMLA. Chaudhari also asserted that the ED could not investigate predicate offences, which include allegations of criminal conspiracy, and claimed the arrest was timed before the Lok Sabha elections with malicious intent.

On the other hand, Additional Solicitor General SV Raju, representing the ED, filed a comprehensive 182-page response, arguing that Kejriwal's claims were misconceived and should be rejected immediately, as bail in PMLA cases must comply with section 45 of the PMLA. The ED alleged that Kejriwal, as the Chief Minister, had significant influence and could tamper with evidence and influence witnesses. Despite multiple opportunities, Kejriwal did not cooperate with the investigation, leading to his arrest. The ED emphasized that economic offences required a different approach regarding bail, and releasing Kejriwal could render the investigation and trial ineffective.

The court, while referring to Section 439 CrPC, opined, “The spirit of the section gives discretion to the court to grant bail. However, the imposition of certain conditions and restrictions upon the accused is also on aspect of the said discretion”. 

Furthermore, the court observed that the case was intricate, involving multiple accused, witnesses, and stakeholders, with neither the Enforcement Directorate (ED) nor the defense wishing for an unfavorable ruling. However, due to the impracticality of reviewing thousands of pages of documents, the court affirmed its duty to thoroughly examine all relevant matters and issue a lawful judgment. The court acknowledged occasional hesitation in making such decisions due to potential long-term repercussions but noted recent urges from the Supreme Court and the Chief Justice of India for trial courts to address and adjudicate such cases.

The court also referred to Benjamin Franklin's famous maxim, “it is better that 100 guilty persons should escape than one innocent person should suffer”, emphasizing the profound responsibility of the court not only to ensure that guilty individuals do not evade justice but also to safeguard the innocent from wrongful punishment. It cited numerous cases where the accused endured prolonged trials and suffering before being acquitted, without any means to compensate for the mental and physical anguish endured. 

“On this aspect, ED has failed to clarify as to how much time is required for tracing out the complete money trail. Meaning thereby that until and unless this exercise of tracing out the remaining amount gets completed by ED, accused is supposed to remain behind bars that too without proper evidence against him”, the court added. Regarding the ED's actions, the bench criticized its failure to clarify the time required to trace the complete money trail. It remarked that until this tracing exercise is completed, the accused should not be detained without proper evidence against them.

Furthermore, the court underscored the significance of considering the constitutional rights of under-trials, referencing various judgments by the Supreme and High Courts. It noted that during the COVID-19 pandemic and afterward, several guidelines were issued nationwide, resulting in the release of numerous under-trial prisoners. The court clarified that while it was not tasked with assessing the severity of the alleged offence, it was obligated to adhere to the principles established in those guidelines by the higher courts of the country.

Moreover, the court noted that the ED did not address how the alleged proceeds of crime were utilized in the Goa Assembly elections by AAP, despite a significant portion of the amount remaining unaccounted for after approximately two years.

Additionally, undisputed facts presented on behalf of Kejriwal highlighted delays and potential malfeasance by the ED in handling evidence against the accused.

During arguments, the ASG for the ED raised concerns about the reliability of approvers in investigations, likening the process to an art form where assurances of bail and pardon may influence disclosures. This prompted the court to consider the potential bias of the investigating agency in selectively presenting incriminating evidence while withholding exculpatory material. The court emphasized that the complete truth should be established based on legally obtained incriminating evidence on record.

The court opined, “It seems that ED also believes that the evidence on record is not sufficient to proceed against the applicant and it is taking time to procure the same in any manner whatsoever to convince the court with respect to the availability of the evidence against the applicant. The investigation agency should be prompt and fair so that it can be perceived that the principles of natural justice are also being followed by the agency”.

Accordingly, the court allowed the application and granted bail to Kejriwal. 

Case Title: Arvind Kejriwal v Directorate of Enforcement