SC asks ED to come clean on timing of arrest of Arvind Kejriwal

NEW DELHI: The Supreme Court on Tuesday asked the Enforcement Directorate to come clean on timing of arrest of Delhi Chief Minister Arvind Kejriwal before the general election, as life and liberty are exceedingly important.

A bench of Justices Sanjiv Khanna and Dipankar Datta posed a series of questions to Additional Solicitor General S V Raju, appearing for the ED, after hearing senior advocate A M Singhvi, on behalf of the Delhi CM.

The apex court asked Raju to give his response on May 3.

Kejriwal challenged validity of his arrest of March 21 by the ED in a money laundering case in Delhi liquor policy scam.

The bench also asked the ED that no attachment action has been taken so far in this case, and if it has been done, then show how Kejriwal is involved in the matter.

“If there are some proceeds, then you have to show how was petitioner…as far as Manish Sisodia’s case is concerned there two parts of the judgment (a) one is with regard to where there are finding in favour; (b) where findings are against Manish Sisodia. So, which case does this case fall under ‘A’ or ‘B’,” the bench asked Raju.

The court also noted that Section 19 of the Prevention of Money Laundering Act casts a fairly high onus on the prosecution. Hence, the accused is not opting for bail, because then he will have to convince the court that he is not guilty.

"What they believe is threshold of Section 19 (PMLA), which casts onus on the prosecution and not on the accused is fairly high, therefore asking them to go for regular bail they do not get that advantage because they are confronted with Section 45 (PMLA), the onus shifts on them. That is why they are repeatedly on Section 19,” the bench said.

The bench also asked, “Therefore, to what extent do we interpret it? Do we put the burden much higher, and comparable with what court normally court would do at the time on basis of assuming all the allegation is correct but at the same time ensuring the standard would be the same as to find a person as guilty, which is benefit of doubt and all other things coming in and evaluation must be complete and thorough”.

The bench also asked that the last point “which bothers is the time gap which is taking between initiation of proceedings and repeated complaints being filed after some time. All has its consequence…if you see Section 8, there is a limit of 365 days... beyond 365 days what will happen…though it is in the bail matter we may not be going into that".

The other way is don’t arrest, life and liberty is very exceedingly important, you cannot deny that, the bench asked Raju.

Singhvi, on part of Kejriwal, contended that no “proceeds of crime” have been recovered so far by the ED and that PMLA envisaged a high threshold for arrest.

He said that mere non-cooperation could not be a ground for his client’s incarceration by the law enforcement agency.

Singhvi said there is no trace of proceeds of crime coming to Kejriwal and there is also lack of proof of direct involvement of his client. Singhvi insisted that no adverse finding was recorded against Kejriwal in the apex court’s judgment denying bail to former deputy chief minister Manish Sisodia.

Singhvi also said that no statement under Section 50 of the PMLA has been recorded so far.

He said in connection with the Goa elections, the ED says funds for campaigning were sent to the AAP national convenor and it does not say crime proceeds came through the Delhi CM. Singhvi insisted that prima facie there is a lack of clarity about the involvement of Kejriwal.

In his recent rejoinder filed in the top court, Kejriwal has questioned before the court the mode, manner, and timing of his arrest just before the Lok Sabha elections and after imposition of the Model Code of Conduct, contending it was an unprecedented assault on the tenets of democracy based on free and fair elections and federalism.