Read Time: 11 minutes

Synopsis

Delhi Chief Minister Arvind Kejriwal has claimed before the Supreme Court that his arrest in the liquor scam case constituted an unprecedented assault on the tenets of democracy based on 'free and fair elections' and 'federalism', which formed significant constituents of the basic structure of the Constitution.

In a rejoinder affidavit, he has alleged he was illegally arrested on March 21 even though investigations in PMLA case are continuing since August 22, 2022 and despite five prosecution complaints or supplementary prosecution complaints having been filed, the petitioner was never called upon to be associated until October 31, 2023.

Kejriwal claimed innocence in the entire case, contending there existed no proof or material demonstrating that the AAP received funds or advanced kickbacks from the South group, utilising them in the Goa election campaign.

He submits he responded to each and every summons issued to him by ED, while seeking vital details and information from the agency, but ED has only been opaque and dictatorial in its approach. Among others, Kejriwal's reply contended the ED has acted in a most highhanded manner in a gross affront to the due process of law. 

"Not a single rupee was traced back to the AAP, and the allegations put forth in this regard are devoid of any tangible evidence, rendering them vague, baseless without any corroboration,” his written statement said.

In his rejoinder, Kejriwal claimed neither is the petitioner an accused nor a suspect in the Scheduled/Predicate offence, wherein, investigations are continuing since 2022 and despite three charge-sheets/ supplementary charge-sheets having been filed, absolutely nothing has surfaced against him till date.

His response alleged the Enforcement Directorate, a central government agency, illegally 'picked up' a sitting Chief Minister and the National Convenor of one of the six national Opposition parties in India on March 21,2024, that is, five days after the general elections were called and the Model Code of Conduct was put in place. 

"During an election cycle when political activity is at its highest, the Petitioner's illegal arrest has caused grave prejudice to the petitioner's political party, and will provide the ruling party at the Centre an unjust upper hand in the ongoing elections. A level playing field- which is a pre-requisite for 'free and fair elections'- has clearly been compromised with the illegal arrest of the petitioner," his reply claimed.

It further alleged the present case is a classic case of how the ruling party led central government has misused the central agency- Enforcement Directorate and its wide powers under PMLA to crush its biggest political opponent -Aam Aadmi Party and its leaders. 

His response also contended the spirit of Section 19 of PMLA which prescribes the highest pristine standards for arrest cannot be taken away or breached on the whims and fancies of ED officer.  "The power to arrest in the present case is a glaring abuse of the due process of law as well as the procedure established and therefore, the following aspects laid down by this Court in Vijay Madanlal Choudhary Versus Union of India & Ors (2022)," he has said.

The reply also said the ED has garnered a wishful impression as if it has a right to conceal documents which are in the favour of the accused from the court and the accused. This negates the very principle of fair trial and fair investigation. "IO assumes role of final arbiter of truth; despite having documents in their possession which are in favour of accused person – IO could choose to rely on a subsequent, belated and contrary statement of a co-accused to infer “guilt” of an accused," it claimed.

Notably, few days back ED had also filed its response to the plea by Delhi Chief Minister Arvind Kejriwal's challenging the Delhi High Court's dismissal of his petition contesting his arrest by the ED in the liquor policy scam.

A bench of Justices Sanjiv Khanna and Dipankar Datta had issued notice in said plea on April 15 and will now be hearing the matter on April 29.

In its affidavit ED has submitted that there has been a large-scale destruction of evidence in the entire scam with over 170 mobile phones being destroyed during the entire scam by Kejriwal and others.

"...crucial digital evidences of the Scam and money trail have been actively destroyed by the accused and other persons involved in this scam. Despite such active and criminal destruction of evidence, the agency has been able to recover key evidences which directly reveals the role of the petitioner in process and activities relating to proceeds of crime...", the reply adds.

ED had added that treating a politician like Kejriwal differently from an ordinary criminal in a matter of arrest would amount to arbitrary and irrational exercise of power of arrest which would violate the principle of equality enshrined under Article 14 of the Constitution. 

Kejriwal was arrested on March 21 late evening. He has been in ED's custody since. ED had conducted searches at Delhi Chief Minister's residence following the Delhi High Court's decision to deny him protection from coercive action in an excise policy-related money laundering case.

The case against Kejriwal & allies involves allegations of corruption and money laundering in the formulation and execution of Delhi's excise policy for 2021-22, which was later scrapped. 

Meanwhile, upon arrest, outside Kejriwal's residence, a crowd gathered, including AAP MLAs and party leaders, protesting the ED's actions. AAP leaders criticized the BJP and ED, alleging political conspiracy and misuse of power to target Kejriwal.

Case Title: ARVIND KEJRIWAL vs. DIRECTORATE OF ENFORCEMENT