The Delhi High Court on Wednesday heard the arguments of the Enforcement Directorate (ED) and Delhi Chief Minister Arvind Kejriwal in connection with a money-laundering case linked to the Delhi excise policy ‘scam’.
Kejriwal, the Delhi CM and Aam Aadmi Party (AAP) national convenor, had filed a plea, challenging his arrest by the ED in the case. The financial crime-fighting agency has opposed his petition, saying the probe is not over yet.
Kejriwal vs ED | Who said what?
1. ED opposes Kejriwal’s plea: Additional Solicitor General (ASG) SV Raju said, “As far as Kejriwal is concerned, the investigation is not over. It is at a nascent stage.” He further argued that Kejriwal had agreed to the remand and didn’t oppose it.
“He [Kejriwal] voluntarily accepts please remand me further. Can he challenge the remand order? Or is it barred by waiver?” the ED’s lawyer asked.
2. No evidence against Kejriwal?: The Delhi chief minister’s lawyer said there is no evidence against his client to show that he is involved in money laundering. “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?” he asked.
However, the ED said, “We have demonstrated that Arvind Kejriwal was responsible for the affairs of the company (AAP) at the time when the offence of money laundering was committed.”
3. ‘AAP is a company’: The ED said the AAP is a company under section 70 of the Prevention of Money Laundering Act (PMLA). “A political party is a union of individuals. Therefore, now we have established that he was incharge and responsible for the affairs of AAP. AAP is the whole and sole,” the lawyer representing the ED was quoted by Live Law as saying.
4. Kejriwal’s role in the case: The ED’s lawyer said Kejriwal’s “role” is not required in the case. But “what is required to be looked at is that he was responsible for the affairs of the company/party,” the agency was quoted by legal news portal Bar and Bench as saying. The ED cited Section 70 of the PMLA to prove this.
The ED noted that Kejriwal was AAP’s national convenor and Delhi’s chief minister when the “offence” was committed. “He takes all the decisions. The final decision with respect to all the major affairs of the party is taken by the national convenor. If the offence is committed by the company, he is responsible for it,” the ED said.
Reacting to this, Kejriwal’s lawyer, Advocate Abhishek Manu Singhvi, said the ED argument is “misplaced”. Singhvi was quoted by Bar and Bench as saying, “Section 70 PMLA is a misplaced argument. It nowhere permits a person who is not guilty to be covered under the company head. You can’t just pick up 70 and apply it.”
5. Questions raised on arrest timing: Kejriwal argued in the court that the arrest reeks of the timing issue — to not participate in the election and to try and demolish the political party before the first vote is cast. “The only object is to humiliate and insult. The true object of the arrest is to disable me,” Kejriwal’s side said.
The ED responded to this by asking: If a crime is committed before the elections, won’t the accused be arrested then?
“Supposing a political person commits murder two days before elections. This means he can’t be arrested? Does basic structure come into play? I commit murder or rape but I can’t be arrested before elections. What kind of argument is this,” it was quoted by Live Law as saying.
It added, “…there are a large number of cases where the dead body is not found. But there are prosecutions and even convictions. That doesn’t mean there is no murder.”
The ED argued that the liquor policy was “fudged to give profits and receive kickbacks” and that the “election is only being used as a bogey. It is not as if ED has become active now.”
6. Can’t arrest CM before elections?: The ED said, “Aam aadmi [common man] 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? You say your arrest will infringe on basic structure? What type of basic structure is this?” the ED was quoted by Bar and Bench as saying.
7. Money not found from the accused’s home?: Reacting sharply to Kejriwal’s argument, the ED said if money can’t be found, it doesn’t mean that the “money laundering offence” didn’t take place.
“The argument is if I have done something, then something will be found out from my home. But if you have passed on the money to someone else, then how can that money be found out at your home?” the agency said. “Paisa to aapne Goa elections me use kar liya [You used the money in Goa elections],” he added.
8. ‘Actual proceeds of crime is irrelevant’: The ED said it found the money trail but noted that the finding of the actual proceeds of crime is irrelevant if “we make out a case that you were involved in money laundering.”
“We have located the money trail. The money may have been used and that’s why it can’t be found,” the ED said, adding that officials have established evidence that shows that kickbacks were used for the election campaign of the AAP in Goa. “Beneficiary was AAP. The offence is committed by AAP,” it said.
9. AAP taking kickbacks: The ED alleged that those who didn’t give kickbacks to the AAP were asked to surrender licences so that those being favoured be given spaces. “Indo Spirit was granted wholesale licence despite complaint of cartelisation. The complainant was forced to take back the complaint…The fact that there is a scam is beyond doubt today,” he said.
10. Can approver’s statement be relied upon? Kejriwal referred to Raghav Magunta’s statement and said, “Magunta makes four statements. In three statements, there are no allegations against me [Kejriwal]. These are not even brought to the notice and are simply kept in unrelied documents. It is completely unfair and contrary to criminal law procedure.”
“He then makes a statement against me and is granted bail 10 days later. This is making an absolute joke of criminal law,” Kejriwal said. He also referred to Sarath Reddy’s statement and said, “It is utterly shameful. There are 13 statements by Reddy. There is nothing against me in 11 statements.”
The ED then said that it was difficult to get evidence against influential people. “Therefore, the law is that when these people are involved, approvers can be relied upon,” it argued.
Arvind Kejriwal was arrested in the Delhi excise policy case on March 21. He was sent to judicial custody till April 15. He is now lodged in Delhi’s Tihar jail.
