HC rejects Kejriwal petition: ED material shows he ‘conspired’, sought ‘kickbacks’

AAP says it will move SC immediately, BJP pushes for his resignation as CM

THE DELHI High Court Tuesday dismissed Chief Minister Arvind Kejriwal’s plea against his arrest by the Enforcement Directorate in the Delhi excise policy case, noting there was “sufficient material” with the agency for his arrest and remand.

The single-judge bench of Justice Swarana Kanta Sharma, ruling on the matter after reserving the verdict on April 3, said, “To summarise, the material… reveals that Arvind Kejriwal had allegedly conspired with other persons and was involved in the formulation of Delhi Excise Policy 2021-22, in the process of demanding kickbacks from the South Group, as well as in generation, use and concealment of proceeds of crime.”

“He is allegedly involved in the offence of money laundering in two capacities. Firstly, in his personal capacity as he was involved in formulation of the Excise Policy and in demanding kickbacks. Secondly, in his capacity as the National Convenor of Aam Aadmi Party as per Section 70 (1) of PMLA, for use of proceeds of crime of Rs 45 crores in the election campaign of Aam Aadmi Party in Goa Elections 2022, which are prima facie apparent from the material relied upon by the respondent (ED) as well as the statement recorded on 08.03.2024 of one of the candidates of Aam Aadmi Party in Goa Elections 2022,” the bench said.

It clarified that Kejriwal’s plea challenged his arrest as “illegal” and was not an application seeking grant of bail.

It said the “cumulative effect of material collected by the ED so far” on Kejriwal’s alleged role reflected ED’S “reasons to believe” that he was “guilty of offence of money laundering”, and the need to interrogate, confront him with witnesses statement and other material, coupled with his conduct of not joining investigation after being served nine summons in a six-month period, “necessitated” his arrest.

Observing there is “material at this stage” pointing to Kejriwal’s “guilt” for commission of money laundering, the bench said that provisions of Section 19 PMLA as well as the mandate in Pankaj Bansal (vs Union of India & Others) have been complied by the ED while arresting Kejriwal.

Apart from his arrest, Kejriwal had also challenged his subsequent remand in ED custody – he was arrested on March 21. On April 1, the Rouse Avenue Court sent him to judicial custody until April 15.

In its first remarks after the High Court verdict, the AAP said it will approach the Supreme Court against the decision“immediately”.“we respect the high court, but disagree with today’ s decision. We will approach the Supreme Court immediately, and we have full faith that we will get justice, just like we did in (Rajya Sabha AAP MP) Sanjay Singh’s case,” party leader Jasmine Shah said. Singh was granted bail by the Supreme court in the excise policy case last week.

The BJP, on the other hand, pushed for the Chief Minister’s resignation, with its Delhi unit president vi rend ra sachd eva asking ifKejriwalh as any moral right to continue since he remains under arrest.

The high court also dealt with Kejriwal’s contention that the approvers had not implicated him initially but only at a later stage in exchange for ensuring par don and bail, and thus the statements were unreliable.

The High Court noted that the statements of Raghav Magunta (son of YSR Congress Party MP Magunta Srinivasulu Reddy) and P Sarath Chandra Reddy (director of Aurobindo Pharma and co-accused-turned-approver) were recorded by the competent officer of the ED under Section 50 PMLA and also under Section 164 of CRPC by the judge concerned.

“This court holds that to doubt and cast aspersion regarding the manner of granting pardon or recording statements of approver amounts to casting aspersions on the judicial process since granting of par donor recording of statementof approver is not domain of investigating agency. it is a judicial process where a judicial officer follows the provisions of Section 164 of CR.P.C. for recording the statement of an approve rand also for granting or not granting pardonto such approver ...,” the bench said.

In this context, the court said it is important to note that an approver is an individual who provides crucial evidence against a co-accused in exchange for leniency/immunity from prosecution. “However, it is the court of law which evaluates credibility and relevance of evidence presented by approver and determines whether to accept testimony or not at the relevant stage of trial. Similarly, bail, which en tails release of the accused pendingtrial, is a judicial prerogative… Without challenging the said process to hold that the statement of approver and pardon granted to them at the behest of ed will be questioning the judicial process which is governed by law and not by any government or investigating agency,” the bench said.

It observed that the law of approvers is more than 100 years old and has been tested by the Supreme Court in innumerable cases and has not been struck down as unconstitutional till date by any court of law.

On the question of non-supply of documents and earlier statements of approvers, the bench said that this question does not arise no was these“documentsare not to be supplied at the stage of arrest or remand”and Kejriwalw ill be entitled to documents that were relied an dun relied upon at the“appropriate stage of trial”.

On the argument that Raghav Ma gun ta’ s father’ s statement can not be relied upon since he has been given a ticket to contest the upcoming Lok Sabha elections from the alliance of the ruling party and Sarath Reddy’s statement is not reliable since he paid approximately Rs 60 crore to the ruling party at the centre through electoral bonds, the court said, “…Who gives tickets to contest elections to whom or who purchases electoral bonds for what purpose is not the concern of this court. As this court is required to apply the law and the evidence before it as it is and in the context it has been placed”.

“Shrike jriwalw ill have a valuable right to cross-examine these witnesses as to why they have chosen to give a statement against him after initially giving statements in which they had not implicated him…this court cannot step into the shoes of the trial court and conduct a mini trial in writ jurisdiction,” it said.

The bench said that merely because an approver has chosen to reveal some new facts at a later stage, after initially concealing them including Kejriwal’s role, it “cannot be a ground to disregard their statements completely”.

On the contention of describing approvers in the present case as “Jaichands”, the bench said it would rather amount to saying that “approvers have turned traitors” which would be acknowledging that they were part of the same alleged plan which the ED claims Kejriwal and the approver were part of.

On whether Kejriwal is entitled to any “special privileges” for comp lying with summons issued to him under Section 50 PMLA, the bench said, “This court holds that it would not lay down two different categories of laws, one for common citizens and other granting special privilege to be extended by investigating agency either to a Chief Minister or any other person in power only on the basis of being in that public office ".

It said Kejriwal “must have been aware about the impending Lok Sabha election dates” which were likely to be declared in March, which has been mentioned by him in his replies to summons. It said Kejriwal would have then known that he “would become busier than ever and would not be able to join the investigation ”; despite this he neither challenged the summons nor did he join the investigation since October 2023. It said that to hold that the “timing was chosen” by the ED would be accepting a misplaced argument. Justice Sharma also said“judges are bound by law and not by politics” and judges as “custodians of justice are bound by law and not by political considerations ”.

The HC, after considering the documents and statements handed over by theed, concluded that once proceeds of crime allegedly received as kickbacks through the South Group were spent on Goa elections, which it said was “corroborated” by statements of approver, Hawala operators and AAP'S own candidate, then the “non-recovery of such proceeds in these circumstances can be of little value” as part of the money already stands spent.

It also observed that the definition of‘ political party’ under Section 2(f) of the Representation of the People Act means an ‘association or body of individuals’ and explanation-1 of Section 70 of PMLA, a ‘company’ also means an ‘association of individuals’.

“Thus, at this stage, the material placed on record, the statement recorded under Section 50 of PMLA of Sh. N.D. Gupta (national treasurer of AAP) and the reply ofkejriw al dated 18.01.2024 to the summons… prima facie make it clear thatsh.kejriw ali sin charge of and responsible for the conduct of the business of Aam Aadmi Party, and prima facie would be liable for affairs of the party so as to attract section 70(1) of PMLA,” the bench said.

Was arrested on March 21