The Supreme Court on Monday questioned the non-appearance of Delhi Chief Minister Arvind Kejriwal before the ED despite repeated summonses for recording of statements, and asked if he can challenge the arrest in a money laundering case related to the excise policy scam on the ground of non-recording of his version. Kejriwal is currently lodged in the Tihar jail here under judicial custody after his arrest on March 21 in the case.
A bench of justices Sanjiv Khanna and Dipankar Datta, which posed several questions to senior advocate Abhishek Singhvi appearing for Kejriwal, asked why the Aam Aadmi Party (AAP) leader did not move a bail application before the trial court.
"Are you not contradicting yourself by saying that his statements under section 50 of the Prevention of Money Laundering Act (PMLA) were not recorded? You don't appear on summons for recording of statements under section 50 and then you say it was not recorded," the bench said.
It asked what is the investigating officer supposed to do if Kejriwal does not appear on summons. "If you don't go for recording of section 50 statements, then you can't take the defence that his statement was not recorded," Justice Khanna said.
Singhvi said, "Thanks for saying that. Non recording of section 50 statements is not a defence to arrest me for reasons of believing there is guilt.
"I am saying other materials also do not establish my guilt. The ED came to my house to arrest me. Then why can't ED record my statement under section 50 at my house?" Section 50 of the PMLA deals with the power of ED authorities to issue summons and production of documents, evidence and other materials.
Singhvi pointed out that on April 16, 2023, Kejriwal appeared before the CBI in connection with the case and answered all the queries. "Today, you cannot say that we will arrest you because you did not appear on summons. Can you say that since you did not cooperate, you will be arrested?
"Non-cooperation cannot be a ground for criminality or grounds of arrest. This court has last year held that non-cooperation cannot be a ground of arrest under the PMLA," Singhvi said. The senior lawyer said the chief minister does not have any immunity from prosecution and asked if he has less rights than a common citizen.
Singhvi further submitted that the denial of relief by the Delhi High Court for no coercive action can also be no ground for arrest by the ED. At the outset, the bench asked Singhvi why did Kejriwal not move a bail application in the case. Singhvi said that he has challenged the arrest and if the arrest is held as illegal all other things go.
"My case is that the arrest is illegal. The remit of Section 19 of PMLA is much wider as it empowers ED to arrest a person based on material in their possession which provides a reasonable basis to suspect that an individual has committed an offence punishable under the law. "But where is the material except for five statements? There is nothing," he said.
Singhvi, who opened the arguments challenging the arrest of Kejriwal, said there was no immediate necessity to arrest the chief minister when the Model Code of Conduct is in force.
"Your (ED's) power to arrest is not an obligation to arrest. There must be reason to believe (that arrest is required). This arrest was when the Model Code of Conduct was in place. "I am not a hardened criminal or terrorist who has done something a week back. There has to be some new material or a link which connects me directly to something," Singhvi said.
