Delhi Excise Policy case: Can Arvind Kejriwal be arrested for evading ED summons?

Delhi Chief Minister Arvind Kejriwal recently chose not to appear before the Enforcement Directorate (ED) after being summoned by the agency for the third time in connection with the investigation into the alleged Delhi Excise Policy scam..Speculation is rife on whether the central probe agency is going to arrest Kejriwal or summon him for the fourth time. So does the ED have a case to arrest the Chief Minister? What does the law say on non-compliance with summons? .The case.The ED’s probe into money laundering contentions stems from a case registered by the Central Bureau of Investigation (CBI) on August 17, 2022 in connection with alleged irregularities surrounding the Delhi Excise Policy for 2021-22. The CBI case was registered on a complaint made by Lieutenant Governor VK Saxena on July 20, 2022. The ED subsequently registered a case on the money laundering angle against the accused persons on August 22, 2022.It has been alleged that a criminal conspiracy was hatched by Aam Aadmi Party (AAP) leaders, including Delhi Deputy Chief Minister Manish Sisodia and other unidentified and unnamed private persons/entities during the stage of the policy’s formulation.The conspiracy, it has been alleged, stemmed from some of the loopholes “intentionally” left or created in the Policy. These were allegedly meant to favour some licensees and conspirators post the tender process..Kickbacks were alleged to have been paid through hawala channels by a few persons in the liquor business from South India to some public servants of the AAP to achieve the objectives of “monopoly and cartelisation” among liquor manufacturers, wholesalers and retailers.The kickbacks were reportedly going to be returned to the “South lobby” either out of profit margins of the wholesalers or through credit notes issued by the wholesalers to the retail vends owned or controlled by those from the Southern part of India.CBI has filed two chargesheets, dated November 24, 2022 and April 25, 2023 so far. The ED, on the other hand, has filed a main complaint and five supplementary complaints in the money laundering case..AAP leaders in the dock.AAP leaders Sisodia and Sanjay Singh have been arrested, chargesheet and are currently in judicial custody. They have time and again sought relief of bail, but haven’t been granted the same.On January 4, Singh was allowed to file nomination papers for renewal of his Rajya Sabha membership. He was arrested by the ED on October 4, 2023 after the agency searched his residence. He has been in judicial custody since October 13.The agency has accused Singh, who has been denied bail by the trial court earlier, of framing and implementing the now-scrapped Delhi Excise Policy..Sisodia, on the other hand, received a setback when the Supreme Court dismissed his review petition against the order rejecting his bail plea on December 14.While refusing him reprieve, the apex court prima facie observed, “The new excise policy was meant to give windfall gains to select few wholesale distributors, who in turn had agreed to give kickbacks and bribes.”The ED arrested Sisodia on March 9, 2023 after questioning him for several hours in the Tihar Jail. He was arrested by the CBI in the same case on February 26, 2023. .Legal provisions dealing with summons.The issuance of three summons to Kejriwal and non-compliance with the same doesn’t necessarily mean that the agency is bound to arrest him.There have been instances in the past when the ED has summoned persons to no avail. Jharkhand Chief Minister Hemant Soren is the most recent example, having refused to comply with six summons. However, according to Nitesh Rana, an advocate specialising in Prevention of Money Laundering Act (PMLA) cases, the agency has the power to arrest a person if it has sufficient material.“There is no limit on how many summons can be issued. But If somebody doesn't turn up despite being summoned repeatedly, ED can file a private complaint under Section 174 of IPC before the court concerned and the person will have to face consequences of that,” he explained..While the ED issues summons under Section 50 of PMLA, Section 174 of the Indian Penal Code deals with “non-attendance in obedience to an order from public servant” and its violation attracts punishment in terms of imprisonment and fine. On the other hand, the agency derives its power of arrest from Section 19 of PMLA, which stipulates,“If the Director, Deputy Director, Assistant Director or any other officer authorised in this behalf by the Central Government by general or special order, has on the basis of material in his possession, reason to believe (the reason for such belief to be recorded in writing) that any person has been guilty of an offence punishable under this Act, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest.”As per Section 63(2)(c) of the PMLA, if a person to whom the agency issues summons under Section 50 either to attend and give evidence or produce documents, omits to do so, he is liable to pay a fine “not be less than five hundred rupees but which may extend to ten thousand rupees for each such default or failure”..How courts have dealt with similar cases recently.The Supreme Court recently delivered a ruling in Pankaj Bansal v. Union of India on the ED's arrest of accused persons after there was was non-compliance with summons. A Bench of Justices AS Bopanna and Sanjay Kumar held,“Mere non-cooperation of a witness in response to the summons issued under Section 50 of the Act of 2002 would not be enough to render him/her liable to be arrested under Section 19.”.Justice Anup Jairam Bhambhani of the Delhi High Court in a recent ruling said that the ED's powers to issue summons under Section 50 of the PMLA does not include powers to arrest."To be sure, the power to arrest is conspicuously absent in Section 50 of the PMLA. Though Section 19 of the PMLA empowers designated officers of the ED to arrest any person, subject to satisfying the conditions mentioned in that provision, it is clear that the power to arrest does not reside in Section 50 nor does it arise as a natural corollary of summons issued under Section 50,” the verdict stated.The Court, therefore, underlined that the agency did not have the authority to arrest a person on its "whims and fancies"..The Rajasthan High Court, while recently quashing ED summons issued to a Congress politician, opined that the petitioner had the right to know the nature of accusation against him if he is an accused. It further noted that he has the right to know for what purposes and in what matter his presence would be required to enable him to collect the requisite material to satisfy the summons..As far as Kejriwal's options are concerned, he can move court for anticipatory bail if there is an apprehension that he may be arrested. He can also approach the courts to quash the summons issued by the ED.What further action the ED will take against the leader remains to be seen.