New Delhi: In its counter-affidavit to Arvind Kejriwal’s writ petition against his arrest in the excise policy case, the Enforcement Directorate (ED) said the Delhi chief minister had himself submitted before the court that he was willing to cooperate, and his counsel had not objected to the agency’s application for judicial custody.
Seeking dismissal of the plea by the Aam Aadmi Party (AAP) chief — who had argued that his arrest and custody were solely based on statements recorded under section 50 of the The Prevention of Money Laundering Act (PMLA) — the ED also stated that approvers’ statements cannot be disregarded at the stage of investigation. It further submitted that it had complied with all procedural requirements under relevant sections of the PMLA.
The central agency also reiterated its allegation that Kejriwal was the “key conspirator and kingpin” of the Delhi excise policy scam who was involved in the generation and recoupment of the “proceeds of crime”, in its 56-page counter-affidavit accessed by ThePrint.
The Delhi High Court bench of Swarana Kanta Sharma had in a 27 March order directed the ED to file a response to Kejriwal’s writ petition, which had sought for his arrest to be declared as illegal, the quashing of the remand order passed by the special PMLA court on 22 March, and his immediate release from custody. The agency filed the counter-affidavit Tuesday.
Kejriwal is currently in judicial custody till 15 April. His writ petition is listed for hearing today.
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‘Witness credibility & reliability can only be examined during trial’
The ED in its affidavit submitted that Kejriwal, while addressing the judge directly, had made submissions that he was not opposing the remand application of the agency on 28 March and rather was willing to cooperate.
It also relied on Kejriwal’s counsel Ramesh Gupta not opposing its application for the Delhi CM’s judicial custody Monday, to argue that prayers made in the writ petition can’t be allowed and should be rejected on these points alone.
The central agency challenged the arguments made by Kejriwal’s counsel Abhishek Manu Singhvi, who had challenged Kejriwal’s arrest on the basis of statements by approvers who had “bargained for their liberty”. The “credibility and reliability” of witnesses, the ED argued, can only be examined during the trial process and not during the investigation.
It also submitted that there were “independent evidences” that corroborated the approvers’ statements, and emphasised the value of circumstantial evidence due to the involvement of cash transactions.
The agency further argued that the petitioner’s (Kejriwal’s) objections concerning his arrest and custody based on statements recorded under Section 50 of the PMLA should be rejected as those statements can be relied upon at the stage of seeking remand and also to deny bail to accused persons.
The ED cited the high court’s earlier order in the matter of the bail plea moved by AAP Rajya Sabha MP and co-accused Sanjay Singh to argue that statements under section 50 of the PMLA are “admissible” in nature.
‘Money laundering independent offence, probe right of agency’
In its affidavit, the ED also countered that assertions made by Kejriwal that he has not been named as an accused in either the ‘predicate offence’ being probed by the Central Bureau of Investigation (CBI) or in the six prosecution complaints filed by the ED so far in the case.
In this case, the ‘predicate offence’ is corruption and criminal conspiracy and the predicate agency is the CBI, which registered an FIR in July 2022 that subsequently formed the basis of this money laundering case being probed by the ED.
The agency argued that its money laundering probe is independent of the proceedings being carried out by the predicate agency (CBI) and the person accused of money laundering does not necessarily need to have committed the scheduled offence.
The agency further argued that it is “specifically” empowered under Section 44 of the PMLA to conduct further investigation which may bring forth new evidence against accused persons irrespective of whether they have been named earlier or not, and hence Kejriwal not being named as accused in any of the CBI’s or ED’s chargesheets is “immaterial” to the proceedings against him.
The ED said the only way Kejriwal could seek release from jail was to apply for bail in court and fulfil the two criteria under Section 45 of the PMLA — that the public prosecutor (representing the agency) gets the opportunity to oppose the bail application, and if the court has “reasonable grounds for believing” that the accused did not commit money laundering and neither is likely to commit the offence while on bail.
Notably, AAP MP Sanjay Singh was granted bail by the Supreme Court Tuesday after the Additional Solicitor General S.V. Raju, who was representing the ED, did not oppose his bail application as a three-judge bench asserted that it would have to look into the merits of the case after Singh’s six-month-long custody.
(Edited by Gitanjali Das)
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