Delhi HC gives Kejriwal no interim relief against ED arrest, custody; matter to be heard on April 3

The Delhi High Court on Wednesday refused any interim relief to Delhi Chief Minister Arvind Kejriwal, who has been arrested by the Enforcement Directorate (ED) in an excise policy case and is currently in its custody.

Justice Swarana Kanta Sharma, hearing Kejriwal's plea contending that his arrest and the remand order passed by a trial court were illegal and that he was entitled to be released from custody immediately, said that the probe agency has to be granted an opportunity to file a reply.

"... the respondent has to be granted an opportunity to file a reply, as an opportunity for effective representation, and declining this opportunity would amount to a denial of fair hearing as well as violation of one of the principles of natural justice i.e., audi alteram partem, which is applicable to both the parties and not one," the court observed.

Appearing for Kejriwal, senior advocate Abhishek Manu Singhvi urged the high court to order his release on Wednesday since his ED custody ends on Thursday, and contended that no reply is required to be filed on behalf of the ED.

In response to this, the court observed that while hearing and deciding a case, it is duty-bound to hear both sides fairly, keeping in mind the principles of natural justice.

"Thus, the reply by the Directorate of Enforcement is essential and crucial to decide the present case," the judge noted.

Justice Sharma also observed that she cannot presume that the respondent will have no reply to file and will remain bound only by the contentions raised before the trial court.

"Further, any release order from custody will amount to enlarging the accused/petitioner on bail or interim bail, as an interim measure," she observed.

Justice Sharma has given the ED time till April 2 to file its reply to Kejriwal's interim application seeking immediate release from ED custody and even on the main petition, issued notice to the probe agency.

The matter will be heard next on April 3.

The Aam Aadmi Party (AAP) supremo, who was sent to ED custody till March 28, moved the high court against his arrest by the agency and the remand order passed by a trial court in connection with the excise policy case.

On Wednesday, Singhvi argued that the object of his arrest was not to find material but to disable Kejriwal and his party, and sought immediate release.

"Non-cooperation is one of the most abused phrases in the recent past since the ED has been active," he said.

He also contended that his client's (Kejriwal) arrest on the cusp of elections was against the basic structure of the Constitution. He claimed that there was no necessity to arrest Kejriwal as mandated under the Prevention of Money Laundering Act (PMLA).

Taking objection to Singhvi's prayer for an early hearing of the main petition, Additional Solicitor General S.V. Raju, appearing for the ED, said that the voluminous petition was served upon them only on Tuesday, and three weeks’ time should be given to bring their stand on record.

For interim relief as well, appropriate time should be given to respond, he said.

Singhvi also argued that the challenge is to the foundation of arrest and there are several "glaring issues" that need immediate decision by the high court either way. "Democracy itself is involved. Basic structure is involved. Level playing field is involved. Even an hour spent in custody is far too long if arrest is illegal," he said.

As Singhvi ended his submissions, he said that the entirety of the argument is that the arrest is illegal.

"In either event, in interim or final prayer, the entire case depends on two things, what the ED has already spoken. ED has already spoken on most detailed grounds of arrest."

As during all the past hearings and even on Wednesday, at least three advocates have appeared for Kejriwal, the ASG said there can't be more than one lawyer.

"If many lawyers appear for you, I'll also request three lawyers to appear for ED. Let it be a level playing field," he said.

The ED has alleged that the Aam Adami Party (AAP) is the major beneficiary of the proceeds of crime generated in the alleged liquor scam. It termed him the "kingpin and key conspirator" in the excise policy case in collusion with AAP ministers, leaders, and other persons.

Kejriwal has been alleged to have been directly involved in the conspiracy of formulation of the excise policy to "favour certain persons" and also involved in the "demanding kickbacks from liquor businessmen" in exchange for favours granted in the said policy, the probe agency claimed.

The policy in question was being drafted considering the favours to be granted to the 'South Group' and was formed in collusion with AAP leader Vijay Nair, then Deputy CM Manish Sisodia, and members-representatives of the 'South Group'.

"Therefore, not only the AAP but Arvind Kejriwal shall be deemed to be guilty of offences punishable under Section 4 of PMLA and shall be liable to be prosecuted and punished as provided u/s 70 of PMLA," the agency said.