Delhi Chief Minister Arvind Kejriwal put up a spirited stand in the Supreme Court on April 29 against his arrest in the liquor policy case, saying mere non-cooperation with the Directorate of Enforcement (ED) cannot be a ground for his incarceration by the Central agency.
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“My arrest came after the declaration of the Model Code of Conduct. What was imminent for my arrest? Was I a hardened criminal or a terrorist who would run away… So, did you leave a guilty Chief Minister to roam free all these years?” senior advocate A.M. Singhvi, appearing for Mr. Kejriwal, submitted before a Bench of Justices Sanjiv Khanna and Dipankar Datta.
Mr. Kejriwal contended he had a right to not give an incriminating statement against himself to the ED. He invoked his fundamental right against self-incrimination under Article 20, the right to due procedure and liberty (Article 21) of the Constitution and even referred to the Magna Carta.
“An accused can say ‘to hell with you, I am not giving a statement’. I believe I have a right to not go [to the ED office in response to summons], I have a right to not speak against myself,” Mr. Singhvi asked.
He was responding to the ED’s stand that the Chief Minister did not respond to nine consecutive summons before his arrest finally on March 21.
Justice Khanna, at one point, asked whether Mr. Kejriwal had applied for bail in the trial court as yet. The judge clarified that he was asking “out of curiosity”. Mr. Kejriwal’s petition, after all, was against both his arrest and remand.
Additional Solicitor General S.V. Raju, for ED, pointed out that the Chief Minister had not challenged subsequent remands. He had been remanded five times so far. The first two times from March 22 to April 1 was in ED custody. The remaining three times in judicial custody. He is currently in judicial custody till May 7.
“I am not saying Chief Minister has immunity, but does he have lesser rights?” Mr. Singhvi queried in a retort to the ED’s affidavit that “criminal” politicians did not have immunity from arrest, especially to campaign for Lok Sabha elections.
Justice Khanna wondered if Mr. Singhvi was saying that an arresting authority ought to objectively weigh factors both for and against a person before arrest.
The power to arrest did not necessarily mean an obligation to arrest, Mr. Singhvi replied. “The idea is that an innocent should not be punished even at the cost of letting a 100 guilty go free,” he said.
The ED’s power to summon under Section 50 of the Prevention of Money Laundering Act (PMLA) did not inherently include the power to arrest under Section 19 of the law, Mr. Singhvi noted. He said arrest under Section 19 of the Act should be based on material in the possession of the ED which gave it reason to believe that the person was guilty of an offence punishable under the PMLA.
“Can the ED say, ‘you did not cooperate and so I will arrest you? Can the ED say ‘you did not come and that by itself is ground for holding you guilty and arresting you under Section 19?’” Mr. Singhvi asked the court.
‘No new material’
Mr. Kejriwal said his name did not figure in the First Information Report, the Enforcement Case Information Report, the prosecution complaints, the statements of the star witnesses. Multiple chargesheets were filed by the CBI in the case. There was no new material collected against him over the span of two years since August 2022, when the FIR was filed.
He said not all statements by “star witnesses” name him. Sarath Reddy did not name him in his first nine statements. He later got bail and bought electoral bonds. Others had family members join the ruling party at the Centre. Their statements should have been corroborated in compliance with a basic principle of criminal law. Incidentally, the same statements collected from December 2022 to July 2023 were used against Deputy Chief Minister Manish Sisodia, indicating that the ED had nothing new to show.
“I was arrested the day I was unable to get interim protection from the Delhi High Court. You [ED] came to my house and spent 10 hours then arrested me. The ground for arrest should be positive and inculpatory, not because I was unable to get protection or I did not cooperate. Where is the ‘reason to believe’, where is the material in your [ED] possession?” Mr. Singhvi challenged.
Arguments would continue on April 30.
