Aam Aadmi has to go to jail for crime but Chief Minister can't be touched? ED opposes Arvind Kejriwal plea in Delhi High Court

The Enforcement Directorate (ED) on Wednesday told the Delhi High Court that Delhi Chief Minister Arvind Kejriwal cannot cite the upcoming Lok Sabha elections or his position as CM to claim any special exception in the money laundering case against him. .Additional Solicitor General (ASG) SV Raju, appearing for ED, resorted to clever word play using Kejriwal's party name, Aam Aadmi Party (AAP), to argue that everybody has to be treated equally and someone who loots the country cannot claim immunity citing upcoming elections."Aam aadmi has to go behind bars if he has committed a crime but because you are a Chief Minister you can't be arrested? You will loot the country but no one can touch you because the elections are coming?" the ASG asked. In response to Kejriwal's argument that the arrest was politically motivated in view of the Lok Sabha elections, the ASG said,"Take a case of terrorist who is also a politician. He blows up army vehicle and says I want to contest elections so you can't touch me? What kind of argument is this," the ASG asked.He further said that whether the statements made by witnesses against Kejriwal are true or not is a matter of trial."Whether the statements are to be believed or not to be believed is a matter of trial. The Court cannot substitute itself in the place of the investigating officer. The statements of witnesses... there are statements to show that outsiders were involved from the drafting of the policy to its formulation," it was submitted.Importantly, the ASG also said that a person responsible for the affairs of the party would be liable and his personal role might not be relevant."Forget his role, role is not required to be looked at. What is required to be looked at is that he was responsible for the affairs of the company/party."Kejriwal was arrested because he was responsible for the affairs of AAP which benefited from the money laundering, it was stated."We have demonstrated that Arvind Kejriwal was responsible for the affairs of company (AAP) at the time when the offence of money laundering was committed. Tomorrow if we feel that others were also responsible for it, we will make them responsible as well," the ASG said.Pertinently, on Kejriwal's argument that proceeds have not been recovered and the ED has not been able to trace the money trail, the ASG said,"The money trail is there. We have located the money trail. The money may have been used and that is why it can't be found." .Senior Advocate Abhishek Manu Singhvi, appearing for Kejriwal, strongly contested the arguments by the ASG, especially the comparisons drawn by ASG to a terrorist blowing up vehicle"He came with bizarre examples of terrorist blowing up army vehicle. This is nothing but a bizarre example. The second example is heinous crime. Did any of these heinous crimes which they accuse me of happen after notification of election? He said terrorist, blows up army vehicle and heinous crime. My ladyship may see the court recording to confirm he said this," Singhvi countered."Are you recording the court proceedings? A large number of people heard you," the ASG said. "What is this? My point is if a man, a Chief Minister blows up an army vehicle he should be arrested. But is that a fair analogy (to the present case," Singhvi demanded.On ASG's argument regarding proceeds of the crime, Singhvi said,"Let's deal with proceeds of crime. He says if the body is not found murder case goes on. ED has repeatedly said that we are standalone statute offence. What is the standalone offence of Prevention of Money Laundering Act (PMLA)? A good example is suppose a bribe giver is caught on spot the same moment receiver is receiving the money. When the bribe is being given it is either a PC Act or Income Tax Act. It is not a money laundering offence. Can ED jump into this situation and say that 'I (ED) still get jurisdiction when there is no proceeds of crime'."Regarding the ASG's argument that Kejriwal's role is not what is relevant but his "There is no evidence against him (Kejriwal) that he is involved in the offence of money laundering. It is preposterous to say that Chief Minister of Delhi will be handling hawala transactions. I want to ask how does awareness of conspiracy becomes a valid ground for offence of Section 3 PMLA. Because you are aware of the conspiracy you are an accused of PMLA? I am again saying that this is turning PMLA on its head," Singhvi said..The submissions were made before single-judge Justice Swarana Kanta Sharma who was hearing a plea filed by the Delhi CM challenging his arrest and remand in the Delhi excise policy case.The Court after hearing both parties for over 3 hours reserved its verdict..Background.Arvind Kejriwal was arrested by the ED on March 21. He was then produced before Delhi's Rouse Avenue Court which remanded him to ED custody till March 28.Kejriwal then filed the present petition before the High Court challenging his arrest and remand.In his plea, Kejriwal has contended that the Central government was misusing the Prevention of Money Laundering Act (PMLA) to create a non-level playing field during the upcoming parliamentary elections.The Central government is trying to skew the electoral process in the favour of the ruling party at the Centre (Bharatiya Janata Party), which controls the ED through the Ministry of Finance, Kejriwal has alleged.On March 28, Kejriwal's ED custody extended till April 1. Subsequently, on April 1, he was remanded to judicial custody till April 15.He is presently in lodged in Tihar Jail..The case is rooted in a 2022 complaint filed by Delhi's Lieutenant General, VK Saxena alleging irregularities in the framing of the Delhi Excise Policy for 2021-22.The complaint alleged that a criminal conspiracy had been hatched by leaders of the Aam Aadmi Party (AAM), including former Deputy Chief Minister Manish Sisodia and other unidentified and unnamed private persons/ entities at the stage of the excise policy’s formulation.The conspiracy, it was alleged, involved loopholes “intentionally” left or created in the policy. These loopholes were allegedly meant to favour some liquor licensees and conspirators after the tender process.Kejriwal's arrest in the case marked the first instance in India where a sitting Chief Minister was put behind bars. Deputy CM Sisodia is also behind bars in the case while and AAP Rajya Sabha Member of Parliament Sanjay Singh who was in jail secured bail in the matter yesterday from the Supreme Court. Bharat Rashtra Samiti legislator and former Telangana Chief Minister K Chandrashekar Rao's daughter, K Kavitha is also in jail in connection with the same case..Hearing today.Singhvi, appearing for Kejriwal, questioned the timing of the arrest and said that it affects the level playing filed as far as Lok Sabha elections were concerned."Keep in mind the importance of case in terms of level playing field. that's the first point. It is not just a phrase of word. It has three components which are vital. It is part of free and fair elections which in turn is part of democracy which in turn is part of the basic structure. The timing of the arrest ensures that Mr Kejriwal is unable to participate in democratic activity. The effort is to try and disintegrate his party before even the first vote is cast," Singhvi contended.In this regard, he highlighted that while the first summons was issued by ED to Kejriwal in October 2023, the arrest happened only in March 2024."Why I say this? Because the first summons is from October 2023 and the arrest comes on March 21. It reeks of mala fide and damage to basic structure and level playing field. I am not talking politics but law. The timing of arrest here suggests a clear unconstitutional object," he argued..Singhvi underscored that no material/ proceeds have been recovered."The unique feature of this case is that there is no material in any manner under Section 50 PMLA.... You are clearly doing an arrest without any inquiry, statement, material which can form the basis of arrest. it is unique that there is nothing under Section 50 at all. There is zero Section 50 material and because there is zero section 50 material. There is zero Section 19 PMLA material," he said.They also did not record any statement of Kejriwal under Section 50 at his residence, Singhvi added..With regard to the ED's claim that the CM did not respond to their summons, Singhvi said that Kejriwal responded in writing every time."The red herring that I (ED) sent you summons so many times is no answer to saying I (ED) have no material to arrest," Singhvi contended.He then submitted that the benchmark to arrest a person under PMLA is higher because the benchmark to get bail is also higher."Because the condition of bail is so high that is why the test of arrest is even higher and difficult. the threshold is not normal. There is the necessity to arrest test in Section 19," the Senior Counsel argued.Just because the ED has power to arrest, does not mean it can arrest and there should be a strong necessity to arrest a person, he stated."The test is not 'can arrest'. The test is 'should arrest'. Each of my 7-8 replies to the ED summons are very detailed. I have given my replies without any questionnaire. There is nothing that cannot be done this way so there is no necessity to arrest," Singhvi underscored.He also asked what was the need to arrest Kejriwal since he is not a flight risk and can hardly do anything to tamper with evidence or witnesses since 1.5 years have passed since the initiation of the case."The other part of necessity to arrest is, is this man a flight risk? What can he do to affect the witnesses one and half year later? You have already recorded the statement. There are thousands of pages of documents. Third is cooperation. Which part of cooperation I am not doing," Singhvi demanded..Pertinently, Singhvi said that Kejriwal has been arrested based on statements by other accused persons who have since turned approvers and were granted bail and also donated money to the Bharatiya Janata Party (BJP)."In several statements there will be nothing against me. First is Raghav Reddy, Magunta Reddy and Sarath Reddy. Step 2: some of them are arrested. Step 3: first time they give statement against me. Step 4: they get bail by recording no objection from ED of remarkably back pain. They are candidate for ruling party in the election. One of them gives donation through electoral bond to ruling party. Mr Magunta did that. This is a completely biased approach. They are turning the criminal law on its head," Singhvi said..Specifically on the statement by accused-approver Sarath Chandra Reddy, Singhvi said that seven of his nine statements did not name Kejriwal even when queries were put to him specifically on the Delhi CM."There is a specific query to Sarath Reddy wrt me and he specifically denies it. There are total 9 statements from him. 7 before arrest and 2 under arrest. This is ridiculous. the prosecution is saying till you give me statement against Kejriwal, I (ED) will keep recording statement. This is totally concealed. Is this fair?," Singhvi said.Reddy then gave statements on April 25 and 29 last year and was immediately granted bail and later pardoned, it was pointed out."He then gives a statements on 25 and 29 April and immediately he gets bail. First on medical grounds then pardon. It is utterly shameful. There are 13 statements by Reddy. There is nothing against me in 11 statements," Singhvi contended..ASG Raju, appearing for ED, contended that while Singhvi has argued the matter like a bail petition, the petition filed by Kejriwal has in fact challenged his arrest and remand. He also said that the investigation against Kejriwal is at a nascent stage.The ASG also said that while Kejriwal in this petition before High Court has challenged the first remand order passed by the special court on March 22, that remand had expired and further remand orders were passed and the present custody of Kejriwal is under those fresh remand orders."The first remand was only till 28 March. Today we are on April 3. The second and third remand orders have not been challenged. Today his custody is not pursuant to the arrest or first remand order. Today his custody is pursuant to third remand order which is not under challenge," the ASG contended.Even if he had challenged the order, that challenge is not valid because he himself said he does not oppose the remand, the ASG added referring to one of the submissions of Kejriwal before the special court on March 28."Please see the third order where he is sent to judicial custody. Even here he says he does not oppose. They are blowing hot and cold at the same time. It is clear case of acquiescence and waiver," Raju argued.On this ground alone, his challenge is liable to be rejected, the ASG underlined."Even if the earlier order is bad, unless the subsequent orders are set aside, he is not entitled to relief," it was submitted.In view of the above, he said that the present plea by Kejriwal was a bail petition in the guise of a writ petition. He also highlighted that trial court has taken cognisance in the matter which showed that money laundering had indeed taken place."The fact that the offence of money laundering has taken place is beyond any doubt. Why am I saying this? because courts have taken cognisance. Please see the first cognisance order. It is a settled position that cognisance is of offence not offender," the ASG stated..He elaborated on the same by saying that cognisance has been taken in all the five prosecution complaints."There is categorical finding (in the first cognisance order) that there has been money laundering. This order has not been challenged. It is accepted by all the accused.....Cognisance indicates there is a prima facie case for trying the offence," it was argued..Regarding Kejriwal's arguments on witness statements, the ASG said,"What happens is when IO calls a witness he makes some statements. He is then shown some more documents and confronted with more evidence. Ye to third fourth fifth statement me asli cheez niklegi. Just because some witness has not named you does not mean the statement is exculpatory. I am learning this criminal law for the first time."The ASG said that the arrest is based on evidence."We have WhatsApp chats we have hawala operators statements. It's not as if we are shooting in the dark. We have large amount of Income Tax data," the ASG underlined.Large number of accused in this case have been found prima facie guilty of the offence of money laundering since their bail was denied, the ASG added.