No special standards required to arrest CM for money laundering, ED tells SC

Responding to the affidavit, an AAP spokesperson accused the agency of “manufacturing lies at the behest of the Bharatiya Janata Party”

The Enforcement Directorate (ED) on Wednesday filed a comprehensive affidavit in the Supreme Court to counter Delhi chief minister Arvind Kejriwal’s petition challenging his arrest in the Delhi excise policy case, underlining that there are no special provisions under the Prevention of Money Laundering Act, 2002 (PMLA) that differentiates the arrest of a chief minister and an ordinary citizen.

Delhi chief minister Arvind Kejriwal was arrested on March 21. (PTI)

“There are no different provisions in PMLA, 2002 for different standards of evidence to be available to arrest a chief minister or a common citizen and the petitioner, by emphasising his position, is attempting to carve out a special category for himself which cannot be accepted... Arvind Kejriwal, chief minister of NCT of Delhi is the kingpin and key conspirator of the Delhi excise scam,” ED said.

Responding to the affidavit, an AAP spokesperson accused the agency of “manufacturing lies at the behest of the Bharatiya Janata Party”.

“Today, nobody in the country has any doubts that ED is a political wing of the BJP... ED gets its directions from the BJP headquarters,” the official said.

The BJP did not respond to requests seeking comment.

In its affidavit, ED stressed that the decision to arrest Kejriwal was made based on substantial evidence and legal grounds, refuting the Aam Aadmi Party (AAP) convener’s contention regarding the timing of his arrest — that it was to disable him from campaigning for his party during the Lok Sabha polls — and highlighting the CM’s alleged evasion of investigation for nearly six months during which he skipped nine of the agency’s summonses.

“The arrest of a person, however high he may be, for commission of offence based on material, can never violate the concept of free and fair elections. ... treating a politician differently from an ordinary criminal in a matter of arrest would amount to arbitrary and irrational exercise of power of arrest which would violate the principle of equality enshrined under Article 14 of the Constitution,” contended the agency.

A differential treatment in favour of a politician who is guilty of the offence of money laundering, the agency said, would violate the “rule of law” and consequently the basic structure of the Constitution.

A bench led by justice Sanjiv Khanna is expected to hear Kejriwal’s petition against the April 9 order of the Delhi high court on April 29. It had on April 15 issued notice on his plea but declined to take up his appeal for an interim release in relation to the money laundering probe linked to Delhi excise policy case until the ED responds.

The Delhi CM had hurried to the Supreme Court on April 10, less than 24 hours after the Delhi high court rejected his plea against ED arrest while holding that the agency possesses adequate evidence at this stage to suggest Kejriwal’s involvement in money laundering related to the excise policy case.

‘Followed due procedure’

Repelling Kejriwal’s accusation of political witch-hunt using the agency, ED said that its actions were as per the due procedure and only in the interest of justice. “The contention of malafide in the arrest of the petitioner on part of the agency is baseless and is devoid of any merit specially when the petitioner himself made a mockery of the legal provisions by willfully disobeying nine summonses issued to him on various pretexts including ‘vipasana’ and ‘Diwali celebrations’ which as per him are above the administration of justice,” it said.

The agency portrayed him as the “mastermind” behind the Delhi excise policy and accused Kejriwal of colluding with AAP leaders and other individuals to draft and implement the policy favouring certain entities in exchange for kickbacks. The affidavit alleged that part of the proceeds of crime was utilised in the AAP’s election campaign in Goa, implicating Kejriwal in money laundering activities.

Claiming that it has traced “the end-to-end money trail” that links the money spent in Goa to the South Group, the agency said that it has got fresh incriminating material against the CM in the form of a statement by an AAP MLA candidate in the 2022 Goa elections that around ₹90 lakh was spent on his election campaign by the senior functionaries of the AAP’s Delhi office.

‘Two-way involvement’

ED outlined two dimensions of Kejriwal’s purported involvement in money laundering — first, in his personal capacity for policy formulation and kickback solicitation and second, as the national convener of AAP, accused of utilising ₹45 crore in tainted funds during the 2022 Goa elections.

It pointed out that Kejriwal was avoiding interrogation by not remaining present before the investigating officer despite being summoned nine times. “One of the reasons, therefore, which necessitated the arrest was his blatant disregard for the law...,” it said.

The reply affidavit also addressed Kejriwal’s challenge to the veracity and admissibility of statements of the approvers and other witnesses, asserting that the evidentiary value of such statements will be tested during the trial. Moreover, the agency highlighted the destruction of evidence by several accused persons involved in the case, making the task of investigation arduous and underscoring the gravity of the allegations.

“Despite such active and criminal destruction of evidence, the agency has been able to recover key evidence which directly reveals the process and activities relating to proceeds of crime and role of the petitioner,” ED claimed.

The AAP functionary quoted above claimed that ED did not possess a shred of evidence against Kejriwal, and that there was no money trail linked to any AAP leader. “The only money trail in the alleged case is ₹60 crore bribe from Sharath Reddy to BJP’s accounts, which the ED is not investigating. It is clear that ED’s only motive is to stop Kejriwal from coming out of jail before Lok Sabha elections are over. After Phase 1 of polls, the BJP is gripped by fear. They know that if Kejriwal were to campaign in the remaining phases of Lok Sabha elections, their defeat would be certain,” the person said.

ED, meanwhile, said that the investigation into the offence of money laundering was independent of the investigation conducted by the Central Bureau of Investigation (CBI) in the predicate offence and thus, a person accused in an ED case need not necessarily be accused of a scheduled offence.

It urged the top court to reject Kejriwal’s petition, arguing that three previous courts, including the Delhi high court, have backed ED’s decision to arrest the Delhi chief minister. “It is clear that three judicial authorities, including constitutional courts, have concurred with the justification/power to arrest the petitioner. In such a situation, with the limited scope of a petition for special leave under Article 136 of the Constitution, it is humbly submitted that this Hon’ble Court may not interfere with the concurrent findings which has the support of three independent judicial authorities,” it said.