Excise 'scam': Supreme Court asks ED to explain timing of arrest of Arvind Kejriwal ahead of LS polls

The bench also flagged the long-time gap between initiation of adjudication proceedings in the case and the action of arrest, saying the section 8 of the PMLA provides a maximum limit of 365 days.

New Delhi: The Supreme Court on Tuesday asked the Enforcement Directorate to explain a question raised by Delhi Chief Minister Arvind Kejriwal over the timing of his arrest before the general election, emphasising that 'life and liberty' are exceedingly important.

A bench, comprising Justices Sanjiv Khanna and Dipankar Datta, asked Additional Solicitor General S V Raju, representing the ED, to address the main contention raised by senior advocate A M Singhvi, on behalf of the Delhi CM, challenging Kejriwal's arrest on March 21, particularly the timing.

The apex court asked Raju to give his response on May 3.

Kejriwal challenged his arrest by the ED in a money laundering case in Delhi liquor policy scam.

The bench also asked why no attachment action has been taken so far in this case, and if it has been done, the ED needed to show how Kejriwal is involved in the matter.

“If there are some proceeds, then you have to show how was petitioner… as far as Manish Sisodia’s case is concerned, there are two parts of the judgment — (a) one is with regard to where there are finding in favour; (b) where findings are against Manish Sisodia. So, which case does this case fall under, ‘A’ or ‘B’?” the bench asked Raju.

The apex court noted that Section 19 of the Prevention of Money Laundering Act casts a fairly high onus on the prosecution. Hence, the accused was not opting for bail because then the onus would be on him to prove his innocence.

"Look, they have not openly stated but it is quite apparent why they are repeatedly coming up against the remand because what they believe is that the threshold of section 19 of PMLA casts an onus on the prosecution and not on the accused," Justice Khanna told Raju.

"Therefore, asking them to go for regular bail — they do not get that advantage because they are confronted with Section 45 (PMLA), the onus shifts on them. That is why they are repeatedly (harping) on Section 19,” the bench said.

Section 19 of the PMLA empowers the ED to arrest persons based on the material in its possession, providing a reasonable basis to suspect that an individual has committed an offence punishable under the law.

Under Section 45 of the PMLA, there are two conditions for grant of bail to an accused which include the prosecutor be given an opportunity to oppose the bail plea and second the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

The bench also asked, "So, how do we interpret it? Do we make the threshold much higher and ensure that the standard is the same as to find the person who is guilty but then we have to deal with benefit of doubt and other things?"

In one of its last observations, the bench noted, “what bothers (the court) is the time gap between initiation of proceedings and repeated complaints being filed after some time. All this has its consequences… if you see Section 8, there is a limit of 365 days... beyond 365 days, what happens? Though it is in the bail matter, we may not be going into that."

"The other way is don’t arrest... life and liberty is very exceedingly important — you cannot deny that," the bench told Raju who is defending the ED's arrest.

Arguing for Kejriwal, Singhvi contended that no “proceeds of crime” have been recovered so far by the ED and that PMLA envisaged a 'high threshold' for arrest.

He said that mere non-cooperation could not be grounds for his client’s incarceration by the law enforcement agency.

Singhvi said there is no trace of proceeds of crime coming to Kejriwal and there was lack of proof concerning the direct involvement of his client. Singhvi insisted that no adverse findings had been recorded against Kejriwal in the apex court’s judgment denying bail to former deputy chief minister Manish Sisodia.

At this juncture, the bench said initially the court was in two minds about taking up Kejriwal’s case as it had decided Manish Sisodia’s bail plea.

“Initially, the thought did come that whether I should hear this case because I had decided the Manish Sisodia matter. But then it would be said that I am not taking difficult cases or something," Justice Khanna noted.

Singhvi pressed that no statement under Section 50 of the PMLA has been recorded so far.

He said in connection with the Goa elections, the ED says funds for campaigning were sent to the AAP national convenor and it does not say crime proceeds came through the Delhi CM. Singhvi insisted that prima facie there is a lack of clarity about the involvement of Kejriwal.

In his written rejoinder, Kejriwal has questioned before the court the mode, manner, and timing of his arrest just before the Lok Sabha elections and after imposition of the Model Code of Conduct, contending it was an unprecedented assault on the tenets of democracy based on free and fair elections and federalism.