Supreme Court questions ED on statement of witness who did not implicate Arvind Kejriwal earlier

The Supreme Court on Thursday questioned the stand of Enforcement Directorate (ED) with regard to the testimony of a witness, who had not incriminated Chief Minister Arvind Kejriwal in his earlier statement in the Delhi liquor policy case [Arvind Kejriwal v. Directorate of Enforcement]..A Bench of Justices Sanjiv Khanna and Dipankar Datta asked a series of questions to the ED after the statement of Telugu Desam Party (TDP) Lok Sabha candidate Magunta Srinivasulu Reddy, whose son Raghava Magunta Reddy is an approver in the case, was read before it.When Additional Solicitor General (ASG) SV Raju, representing the ED, said that it was for the Investigating Officer (IO) to believe or disbelieve the earlier witness statement and a court can't question that, the bench asked whether any reason for that decision was recorded in the file."Let us for the present purpose assume the statement is not informed etc..but should this [not] be in the file also ? Else you are improving the case when arguments are on," Justice Datta said.The ASG conceded it was not in the file..Justice Datta at this stage said,"You may have good reasons to arrest but you need to touch upon Section 164 statement saying that you do not believe it."Justice Khanna also remarked that if the court has to quash the arrest, then it may have to say that the relevant material was not taken into consideration. However, it clarified that the observation was not specific to Kejriwal's case. At a later stage in the hearing, the Court also remarked that approver statements are tested on different parameters and corroboration has to be there. ASG Raju responded that there are other statements also. He added that their "veracity and credibility" cannot be looked at this stage..The bench was hearing Kejriwal's plea challenging his arrest and remand in the money-laundering case registered by ED.It has been alleged that a criminal conspiracy was hatched by Aam Aadmi Party (AAP) leaders, including Kejriwal, former Deputy Chief Minister Manish Sisodia and others to create loopholes in the Delhi Excise Policy of 2021-22 to favour some liquor sellers for undue favours.Kejriwal was arrested by the ED on March 21..The Court had recently granted interim bail to Kejriwal till June 1 to enable him to campaign for the ongoing Lok Sabha elections.The Delhi High Court had earlier rejected Kejriwal's plea against his arrest, leading to the present appeal before the apex court..Today, the Court said that it would have to look into the material that was available with the ED when it arrested Kejriwal."Suppose the officer has material which shows that the accused is not involved in this.. the officer has to be fair and he is to balance and if the officer ignored it and says he believes that there is a ground of arrest going by only material after exclusion... then shouldn't the court go into this?" Justice Datta said. The Court asked whether in such a case, it should not interfere with the arrest."That means the court has to look into the material, otherwise how will we say that there is no evidence. The court has to. If such a case comes to court would it not be a ground of interference. We say there is material but what about the ones that favoured him," it added..On ED's argument that a mini trial cannot be held even at the stage of framing of charges or bail, Justice Khanna said,"Parameters are different when you take away the liberty ... thus it will be wrong to contend that just because charges are framed he [an accused] cannot be granted bail.".The Court also said that it would lay down the law with regard to ED's power to arrest under Section 19 of Prevention of Money Laundering Act (PMLA).On the question of maintainability of a petition to challenge the remand order passed by trial court after such arrest, the Court said,"If there is order of trial court on remand it will be subject to challenge before High Court under Article 227 and Section 482."The Court also remarked that the material collected after Kejriwal's arrest cannot be relied upon to oppose his present petition."As per the arguments raised by them we have to put the curtains down on the date of arrest. You can postpone the arrest... the question is when you arrest material must be sufficient and you cannot rely on material post the arrest.".Besides challenging the maintainability of his petition against arrest, the central agency today told the top court that the CM had demanded ₹100 crore money and the same was used for AAP's campaign in Goa elections."AAP will made an accused in this case. We have direct evidence that Kejriwal stayed in seven star hotel and bill ran into lakhs," ASG Raju said.There was no need for the Investigating Officer (IO) to look at the material favour Kejriwal when there was material for the bribe, the ASG submitted."I (IO) am not required to dislodge and give a judgment," he said..Solicitor General (SG) Tushar Mehta earlier questioned the maintainability of Kejriwal's petition and argued that it was for the trial court to see whether Section 19 PMLA in his arrest had been complied with."This is a petition under Article 227 read with Section 482 and my attempt is going to be that everyone cannot take recourse to this plea and if this entertained and there will be many such pleas," Mehta said.However, the Court said Kejriwal had first gone to the trial court and High Court and then only approached the top court."Section 19 imposes certain conditions and if there is violation of certain conditions then courts can interfere... either remand court can interfere or high courts can. You say only remand court ... but here they filed a writ before us and we did not open the gates for him earlier," Justice Khanna said..Five bail conditions set by Supreme Court for Arvind Kejriwal.Mehta also argued that Supreme Court was being called upon by Kejriwal to do a mini trial in a petition challenging the arrest."Delhi High Court was also approached by them. High Court did not pass a direct order. ED was called to produce the material ... The High Court saw that material is there and not what one witness said and what another...," the SG said.At this stage, Justice Khanna said the top court has been entertaining petitions under its inherent jurisdiction. "One [case] has been entertained to decide contours of Article 32 plea and there has been judgments where bail was granted under Article 32. Is this not correct?"Mehta responded that Kejriwal's petition challenging arrest was maintainable if the provision for seeking bail is deleted."If we delete Section 439 then it can be maintainable," he said..Mehta also submitted that the remand orders against Kejriwal were passed by his consent - referring to the AAP leader's oral submission before trial court that he was not opposing the remand.However, Justice Datta appeared unimpressed by the argument."What will happen if there is no consent? If arrest is affecting under Section 19 then are you saying that no plea under Article 227 shall lie? Can you take it this far," the judge said..SG Mehta in his arguments also sought to question the allegation that ED was resorting to a larger number of arrest in the country. "We have given the figures since Vijay Mandanlal judgment. The verdict was in 2022 and total arrests since then was 313. The Act was brought in 2002. We are not a standalone country which has money laundering. There are international conventions which have stated that money laundering is a global offence. Our law is in compliance with FATF (Financial Action Task Force)."Mehta added that every five years there is a peer review with regard to the law and its implementation. "Our credit worthiness for international borrowing is also dependent on this," he said.However, the Court said it would not go into the aspect..At the end of his arguments, SG Mehta apprised the Court that Kejriwal, who is on interim bail, in a rally recently said he would not have go to jail if people vote for AAP in the elections.Mehta said it was in violation of the top court's condition that he would not discuss the case against him while on bail.Observing that the same was Kejriwal's assumption, the Court refused to go into it. It also remarked that it welcomed the criticism against the decision to release the Chief Minister on bail for poll campaigning. "We welcome criticism of the verdict. We will not go into that. Our order is clear when he has to surrender. It is order of Apex court and the rule of law shall be governed by this. We did not make an exception for anybody," Justice Khanna said..Responding to the Court's observation that the ED at the time of arrest would also have to look at the material that may be favouring the accused, ASG Raju said,"Court has held that giving reasons by the officer is not equivalent to give merits or demerits".The Court at this stage asked whether the argument also was that the power of court is much more and in-depth when considering the grant of bail under Section 45 of the PMLA.Section 45, among other restrictions, states that a court before granting bail to the accused would have to see that there are reasonable grounds for believing that the accused is not guilty of the money laundering offence."When you decide guilt, you have to see material which shows guilt and not material which does not show him as guilty and need not show that material on record...," Raju said in response to the query.The Court agreed that "it is subjective satisfaction of the court and not the officer and thus court can see the material".The arguments in the matter will continue on Friday.