Delhi Chief Minister Arvind Kejriwal cannot be treated differently from any other criminal on the ground that he is a politician and doing so would be arbitrary and in violation of the principle of right to equality enshrined under Article 14 of the Constitution, the Enforcement Directorate (ED) told the Supreme Court on Wednesday [Arvind Kejriwal vs Enforcement Directorate].
The reply by ED was filed in response to the plea by Kejriwal challenging his arrest and remand by the Enforcement Directorate (ED) in the money laundering case connected to the Delhi excise policy.
In its affidavit filed before the top court on April 24, the ED submitted that the arrest of Kejriwal was based on possession of material as required under Section 19 of the Prevention of Money Laundering Act (PMLA) which would indicate his guilt in the offence of money laundering.
“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. …A differential treatment in favour of a politician who is guilty of the offence of money laundering would violate ‘rule of law’ which would be a violation of the basic structure of the Constitution,” the reply affidavit said.
Further, the ED claimed that the pro-active destruction of evidence in the case leads to the inference that the accused made conscious efforts to destroy evidence of offence of money laundering.
“The destruction of evidence itself is a corroboration of the statements of these accused u/s 50 of PMLA (which itself is a legally admissible evidence) as well as involvement of these accused in the offence of money laundering,” the affidavit contended.
The agency also rebuffed Kejriwal’s argument that his arrest was due to the ensuing Lok Sabha elections.
As per the ED’s affidavit, 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.”
“If the aforesaid argument is accepted, politicians who are criminals would be granted immunity from arrest on the ground that he is required to canvass in the election,” read the reply.
Regarding the evidentiary case of ED, the agency submitted that the probe into the liquor scam has to be seen the background of large scale destruction of evidence.
“A total of over 170 approx Mobile phones were changed/destroyed by 36 persons (accused and other persons involved) during the period of Scam and when the Scam and irregularities in the Delhi Excise Policy of 2021-22 became public. In this manner, the crucial digital evidences of the Scam and money trail have been actively destroyed by the accused and other persons involved in this Despite such active and criminal destruction of evidence, the agency has been able to recover key evidences which directly reveals the of the petitioner in process and activities relating to proceeds of crime,” it was submitted.
The ED also said that the proceeds of crime in this case is not restricted to the bribe amount of Rs. 100 crores bit also includes the profit generated by the bribe giver to the tune of 12%.
“Rs. 100 crore sis the bribe amount, the petitioner made a policy which facilitated the recovery of bribes paid. Rs. 192 crores were recovered by the bribe-giver (Indospirits) in the garb of wholesale profit. The policy which fixed 12% wholesaler’s profit enabled recovery of the bribe paid, thereby projecting tainted recouped bribe amount as untainted wholesaler’s profit. This is how the petitioner was directly and indirectly involved in the process or activity connected with proceeds of crime by actively assisting in making a policy which would enable the recoupment of bribe by bribe- givers in the garb of wholesale profits,” the ED said, elaborating its case against Kejriwal.
Kejriwal had moved the Supreme Court after the Delhi High Court dismissed his plea.
The High Court said that there was evidence to show that Kejriwal’s involvement in the alleged scam.
The High Court further said that the money received as kickbacks was used for political campaigning in the 2022 Goa legislative assembly elections.
The ED’s money laundering probe stems from a case registered by the Central Bureau of Investigation (CBI) on August 17, 2022 in connection with alleged irregularities in the Delhi Excise Policy for 2021-22.
The CBI case was registered on a complaint made by Lieutenant Governor VK Saxena on July 20, 2022.
It has been alleged that a criminal conspiracy was hatched by AAP leaders, including former Deputy Chief Minister Manish Sisodia and other unidentified and unnamed private persons/entities during the stage of the policy’s formulation.
The conspiracy, it has been alleged, stemmed from some of the loopholes “intentionally” left or created in the policy. These were allegedly meant to favour some licensees and conspirators post the tender process.
Several AAP leaders including former Deputy Chief Minister Manish Sisodia and Member of Parliament Sanjay Singh were arrested by the ED in connection with the case.
Kejriwal was arrested by the ED on March 21 and then produced before Delhi’s Rouse Avenue Court, which initially remanded him to ED custody till March 28.
The ED’s custody over him was later extended till April 1. Thereafter, he was sent to judicial custody and he continues to be lodged in Tihar jail.
Meanwhile, he challenged his arrest and remand before the High Court, which eventually refused him relief prompting the appeal before the apex court.
In his plea before the High Court, Kejriwal has contended that the Central government was misusing the Prevention of Money Laundering Act (PMLA) – under which he was arrested – to create a non-level playing field in the lead up to the 2024 Lok Sabha elections.
The Central government is trying to skew the electoral process in the favour of the ruling party at the Centre (Bharatiya Janata Party), which controls the ED through the Ministry of Finance, Kejriwal has alleged.
