The Enforcement Directorate (ED) on Wednesday told the Delhi high court that Chief Minister Arvind Kejriwal, arrested in a money laundering case linked with the alleged excise scam, cannot claim "immunity" from arrest on the ground of upcoming elections as law is applied equally to him and an aam aadmi.
The AAP national convener, currently in judicial custody, questioned the "timing" of his arrest by the agency and said it was in contravention of the basic structure of the Constitution, including democracy, free and fair elections and level playing field.
His senior counsel claimed the agency was "trying to play" a "fixed match" and the arrest was based on uncorroborated statements of co-accused turned approvers.
Justice Swarana Kanta Sharma reserved verdict on Kejriwal's petition challenging his arrest and subsequent remand to the ED in the case till March 28 after hearing both the sides at length.
The case pertains to the alleged corruption and money laundering in formulating and executing the Delhi government's excise policy for 2021-22 that was later scrapped.
Seeking the relief of Kejriwal's release, senior advocate Abhishek Singhvi contended there was no necessity to arrest the AAP politician in violation of the provisions of the Prevention of Money Laundering Act a year and a half after the probe was initiated by ED in August 2022.
"The timing of arrest reeks of basic structure issue," he said, adding the agency was suppressing exculpatory statements of witnesses while "turning the criminal law on its head" by adopting a "completely biased approach".
He also said the "belated" statements of approvers Raghav Magunta and Sarath Reddy cannot be relied upon as the latter even donated to the ruling party through electoral bonds and the ED's argument of "non-cooperation" by Kejriwal was a "nice prejudice".
"This is reprehensible conduct by the prosecutor," Singhvi said.
Additional Solicitor General S V Raju, appearing for ED, objected to the allegations of bias against the agency, emphasising that the probe began in 2022 when there were no elections and the arrest was according to law.
He added that although the probe against the chief minister was at a "nascent stage", there are witness statements against him and the trial court, which has taken cognisance of several charge sheets in the case, has already found the existence of a prima facie case of money laundering and bail applications by many co-accused persons have also been rejected on this account.
Remarking that a politician cannot take the ground of elections if he commits a murder or indulges in a terrorist activity, Raju said, "criminals are supposed to be arrested and put in jail. There is no infringement of basic structure."
He further said the Supreme Court has ruled that "economic crime is worse than murder" and rule of law mandates treating all citizens equally.
"You can't get immunity on the ground of elections. During election you can't arrest anybody with a political connection, is this the law we are lying down so that you give free licence to criminals to roam," Raju asked.
"Aam aadmi has to go behind the bars, irrespective of whether there are elections or not, but I am a chief minister so you can't put me behind the bars even if I've committed a heinous crime, an economic crime," the senior law officer asked, as he submitted that the statements of witnesses would be tested at the stage of trial.
Singhvi said Raju was drawing an unfair analogy to oppose the petition.
Raju further contended that the petition was in fact a bail application in disguise and Kejriwal has waived the right to agitate it further after he did not object to being sent to further custody of the ED or the jail authorities by the trial court.
He said the AAP was also liable for the offence of money laundering on account of being a "company" under PMLA and Kejriwal was "arrested for the role in dual capacity, ie, as an individual and he is also involved (as the national convenor of AAP).
Raju said the agency was "not shooting in the dark" and there was income tax data, WhatsApp chats and statements of "hawala operators".
"There is some property that is already attached provisionally. Proceedings are going on. We are also wanting to attach some property of AAP. If we attach there will be allegation made that it is done at election time. If we don't arrest, they will say where have to attached any property? This is a catch-22 situation. As far as the petitioner is concerned, we are at the stage of investigation," he said.
ED's senior counsel also said the petition has only assailed the first remand order passed against the petitioner, which sent him to the agency's custody till March 28, and not the subsequent orders.
In its response filed in the case, the agency has alleged that Kejriwal was the "kingpin" and the "key conspirator" of the "excise scam" and there were "reasons to believe" on the basis of material in its possession that he was guilty of the offence of money laundering.
Replying on statements given by approvers, the agency has claimed that the AAP national convener "demanded kickbacks from the South Group in exchange for awarding favours to them in the formulation and implementation of the Excise Policy 2021-22".
It has asserted that Kejriwal is involved in the use of proceeds of the crime in the Goa election campaign of the AAP of which he is the convener and the ultimate decision-maker.
