Excise policy case: Delhi HC dismisses CM Kejriwal's plea challenging arrest by ED, remand order by trial court (Lead)

New Delhi, April 9 (IANS) The Delhi High Court on Tuesday dismissed Chief Minister Arvind Kejriwal's petition challenging his arrest by the ED and the trial court order remanding him to the agency's custody.

Justice Swarana Kanta Sharma, who presided over the case noted the ED's submission that CM Kejriwal was in possession of enough material which had led them to arrest him.

Notably, last week, the ED had filed its counter-affidavit to CM Kejriwal's petition.

Since his counsel Ramesh Gupta had submitted before Special Judge Kaveri Baweja of Rouse Avenue Court that CM Kejriwal has no objection to the custody/remand being extended further, it had said that the "petitioner (Kejriwal) has waived his right to question his custody as on today and the petitioner cannot now be allowed to argue that his custody as on today is illegal and present petition is liable to be dismissed on this ground alone."

Justice Sharma on Tuesday dismissed CM Kejriwal's plea challenging his arrest, citing sufficient evidence presented by the ED, including statements from approvers and allegations of involvement in the formulation of the excise policy.

“The court is of the view that the arrest of Arvind Kejriwal was not in contravention of legal provisions. The remand can’t be held to be illegal,” Justice Sharma said while reading out her order.

Responding to the Delhi CM’s contention regarding the timing of his arrest ahead of the General Elections, she said that law applied equally to all and courts were concerned with "constitutional morality" and not "political morality".

“This court observed that political considerations and equations cannot be brought before a court of law as they are not relevant for legal proceedings. In the case at hand, it is important to clarify that the matter before this court is not a conflict between the central government and petitioner Kejriwal. Instead it is a case between Kejriwal and Directorate of Enforcement,” Justice Sharma said.

The court said the statements of approvers against the AAP National Convenor would be judged during trial as it cannot hold a mini trial at this stage.

It added that the AAP leader would be free to cross-examine the approvers at the stage of trial.

Justice Sharma said that the material collected by the ED suggested CM Kejriwal's complicity in the alleged money laundering scheme, both in his personal capacity and as the National Convenor of the AAP.

The court held that Section 70 of the Prevention of Money Laundering Act (PMLA), which penalises offences by companies, was applicable in this case, despite CM Kejriwal's argument that AAP is a political party and not a company.

Addressing concerns raised about the credibility of statements provided by approvers, the court defended the judicial process, saying that approver statements are recorded by the court and not by the probe agency.

It rebuffed allegations of coercion, stating that questioning the manner of recording statements undermines the judicial process.

Senior Advocate Abhishek Manu Singhvi, representing CM Kejriwal, argued that the ED failed to comply with Section 50 of the PMLA, and alleged coercion of approvers.

However, the court upheld the legality of the arrest and remand, maintaining that the AAP leader would have the opportunity to cross-examine witnesses, including approvers, at the appropriate stage of the trial.

"The files and material placed before us reveal that the mandate of law was followed by the ED. The trial court order is not a two line order. The statements with ED are of hawala dealers as well as AAP candidates in Goa elections," the court noted.

In its counter affidavit, the ED had submitted that the remand order dated March 22 and the subsequent remand orders dated March 28 and April 1 under challenge are detailed and well-reasoned orders as is evident on a bare reading of the said orders and hence "warrant no interference."

The agency had said that it complied with all procedural requirements of Section 19(1) and (2) of the PMLA as well as Article 22(1) and (2) of the Constitution of India during the arrest and remand of CM Kejriwal.

The agency had claimed that the AAP leader was the kingpin and key conspirator of the Delhi excise scam in collusion with ministers of the Delhi government, AAP leaders and other persons and that it has material in possession which demonstrates that he is guilty of the offence of money laundering.

The ED had also alleged that CM Kejriwal was directly involved in the formulation of the Excise Policy 2021-22, drafted "considering the favours to be granted to the South Group" and that he demanded kickbacks from the South Group in exchange for favours to them in the formulation and implementation of the Excise Policy 2021-22.

The Delhi High Court had, on March 27, refused any interim relief to CM Kejriwal, who was arrested by the ED on March 21 and is currently in judicial custody till April 15. A copy of Justice Sharma's detailed order is awaited.

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