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A bench of Justices Sanjiv Khanna and Dipankar Datta reserved its judgement after hearing senior advocate Abhishek Singhvi and Additional Solicitor General SV Raju, who appeared for Kejriwal and the Enforcement Directorate, respectively.
”Arguments heard. Judgement reserved. Notwithstanding the same, and without prejudice to rights and contentions, the appellant can move the trial court for grant of bail in accordance with law,” the bench said in its order.
The top court perused the case files and statements of the witnesses and accused recorded after October 30, 2023, the day senior AAP leader Manish Sisodia’s bail plea was rejected. Sisodia is an accused in both the corruption and money laundering case linked to the alleged scam.
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Solicitor General Tushar Mehta, who also appeared for the ED, said the alleged hawala operators have been arrested now and the chat messages have been recovered from them.
Singhvi contested the claim and said the allegation was being made to prejudice the mind of the court.
”Is this submission for the court or the media? Why was he suppressing this fact till now? The arguments are being made to create a doubt in the court’s mind in the last minute,” Singhvi told the bench.
Raju claimed the probe agency has got evidence about money having been sent from Andhra Pradesh to Goa through hawala channels to help with the Aam Aadmi Party’s 2022 assembly poll campaign.
The bench questioned Raju whether this ”evidence” was mentioned in the ”grounds of arrest” recorded in writing and given to Kejriwal. ”The probe agency is not supposed to share everything with the accused before the chargesheet,” Raju replied, adding that sharing every material with the accused at the time of arrest will jeopardise the investigation, delay the trial and there will be chances of witnesses being influenced. He said under the PMLA and CrPC, the investigating officer is not supposed to share everything about the ”grounds of arrest” with the accused or else the accused will start challenging the material at every level and there will be hundreds of petitions before the court. The bench told the ASG, ”How will then the accused defend himself or challenge his arrest, if complete material is not shared with him? How will he challenge those grounds?” It pointed out that Section 19 of the PMLA, which deals with the powers of arrest, uses the word ”guilty” and it means that the investigating officer must have reasons to believe, based on the material in possession, that the accused is guilty. Justice Khanna said, normally, the investigating officer should not arrest a person until he has sufficient material to show that he is guilty, and that should be the standard practice. The ASG replied that suspicion is the standard for the investigating officer to make arrest under the criminal law. Singhvi, in his rejoinder arguments, countered the submissions of Raju and Mehta and said in Kejriwal’s case the ED officers gave weight to only one inculpatory statement while ignoring nine exculpatory statements of witnesses. On alleged hawala transactions, Singhvi said nothing of that nature was mentioned in the grounds of arrest given to Kejriwal and urged the court to not venture into pronouncing its verdict on AAP being arrayed as accused under section 70 of the PMLA in the case. ”This is altogether a different chapter and we have not been able to assist this court on the issue of AAP being made an accused in the case due to paucity of time. Kindly don’t pass any order on this issue as it will create problems,” Singhvi said. He said there is not even an iota of material against Kejriwal and the material being relied upon by the probe agency are of July-August 2023 which have already been looked into by the top court in the Manish Sisodia bail case verdict of October 30, 2023. On May 16, the ED claimed it has enough evidence to show that Kejriwal demanded Rs 100 crore as bribe which was used by AAP in the Goa assembly poll campaign. The Delhi chief minister was arrested on March 21 in the money laundering case in which the apex court enlarged him on interim bail from May 10 to June 1 for campaigning in the Lok Sabha elections. It ordered him to surrender on June 2 and go back to jail.
The court, however, barred Kejriwal from visiting his office or the Delhi secretariat, and signing official files unless absolutely necessary for obtaining the lieutenant governor’s approval.
The matter relates to alleged corruption and money laundering in the formulation and execution of the Delhi government’s excise policy for 2021-22, which has now been scrapped.