The
Supreme Court on Monday questioned the non-appearance of Delhi Chief Minister
Arvind Kejriwal before the ED despite repeated summonses for recording of
statements, and asked if he can challenge the arrest in a money laundering case
related to the excise policy scam on the ground of non-recording of his
version.
Kejriwal
is currently lodged in the Tihar jail here under judicial custody after his
arrest on March 21 in the case.
A bench of justices Sanjiv
Khanna and Dipankar Datta, which posed several questions to senior advocate
Abhishek Singhvi appearing for Kejriwal, asked why the Aam Aadmi Party (AAP)
leader did not move a bail application before the trial court.
It
asked what is the investigating officer supposed to do if Kejriwal does not
appear on summons.
"If
you don't go for recording of section 50 statements, then you can't take the
defence that his statement was not recorded," Justice Khanna said.
Singhvi
said, "Thanks for saying that. Non recording of section 50 statements is
not a defence to arrest me for reasons of believing there is guilt.
"I
am saying other materials also do not establish my guilt. The ED came to my
house to arrest me. Then why can't ED record my statement under section 50 at
my house?"
Section 50 of the PMLA deals with the power of ED authorities to issue summons
and production of documents, evidence and other materials.
Singhvi
pointed out that on April 16, 2023, Kejriwal appeared before the CBI in
connection with the case and answered all the queries.
"Today,
you cannot say that we will arrest you because you did not appear on summons.
Can you say that since you did not cooperate, you will be arrested?
"Non-cooperation cannot be a ground for criminality or grounds of arrest.
This court has last year held that non-cooperation cannot be a ground of arrest
under the PMLA," Singhvi said.
The
senior lawyer said the chief minister does not have any immunity from
prosecution and asked if he has less rights than a common citizen.
Singhvi
further submitted that the denial of relief by the Delhi High Court for no
coercive action can also be no ground for arrest by the ED.
At
the outset, the bench asked Singhvi why did Kejriwal not move a bail
application in the case.
Singhvi
said that he has challenged the arrest and if the arrest is held as illegal all
other things go.
"My
case is that the arrest is illegal. The remit of Section 19 of PMLA is much
wider as it empowers ED to arrest a person based on material in their
possession which provides a reasonable basis to suspect that an individual has
committed an offence punishable under the law.
"But
where is the material except for five statements? There is nothing," he
said.
Singhvi,
who opened the arguments challenging the arrest of Kejriwal, said there was no
immediate necessity to arrest the chief minister when the Model Code of Conduct
is in force.
"Your
(ED's) power to arrest is not an obligation to arrest. There must be reason to
believe (that arrest is required). This arrest was when the Model Code of
Conduct was in place.
"I
am not a hardened criminal or terrorist who has done something a week back.
There has to be some new material or a link which connects me directly to
something," Singhvi said.
The
bench then asked whether he was named in the Enforcement Case Information
Report (ECIR).
"No,
Not a single document connects me to the allegations. From December 2022 to
July 2023, there was not a single statement where I was named.
"In
July last year, a person in their custody made a statement, which was his tenth
and named me. I was arrested on March 21," he said.
The
bench said in a normal case, a person upon arrest moves a bail application and
the court based upon the case diary forms a prima facie opinion whether to
grant him relief, as the charge sheet is filed after 60 or 90 days.
Singhvi
said this case should not be treated as a normal criminal case as the challenge
is to the arrest itself and the ED's reason to believe guilt has to connect
with the reasons to arrest.
"Yes,
there are no new statements. The one which is being cited is from July last
year.
"These
are the same statements which the court has seen in former deputy chief
minister Manish Sisodia case. The statements are of the same set of people,
suspect or accused," he said.
The
hearing remained inconclusive and will continue on Tuesday.
In
its reply affidavit filed in the apex court earlier this week, the Enforcement
Directorate (ED) has claimed that Kejriwal is the "kingpin and key
conspirator" of the excise policy scam and the arrest of a person for an
offence based on material can never violate the "concept of free and fair
elections".