Treating politician differently from ordinary criminal will violate Constitution: ED tells SC on CM Kejriwal's plea

On Delhi Chief Minister Arvind Kejriwal's plea challenging his arrest, the Enforcement Directorate (ED) has told the Supreme Court that treating a politician differently from an ordinary criminal in a matter of arrest would violate the principle of equality enshrined under Article 14 of the Constitution.

"The petitioner was arrested because the investigating officer has material as required under section 19 which would indicate his guilt of the offence of money laundering punishable under PMLA. Differential treatment in favour of a politician who is guilty of the offence of money laundering would violate 'rule of law which would be a violation of the basic structure of the Constitution," the financial probe agency said in its affidavit.

The ED claimed that the investigation of the Excise policy case has to be seen as the background of the large-scale destruction of evidence.

"A total of over 170 approx mobile phones were changed/destroyed by 36 persons (accused and other persons involved) during the period of Scam and when the Scam and irregularities in the Delhi Excise Policy of 2021-22 became public," the agency claimed in its affidavit.

In this manner, the crucial digital evidence of the scam and money trail has been actively destroyed by the accused and other persons involved.

"Despite such active and criminal destruction of evidence, the agency has been able to recover key evidence which directly reveals the role of the petitioner in process and activities relating to proceeds of crime," it said.

The ED said that the destruction of digital phones highlighted above should be considered in the context that the accused/suspects were using high-end smartphones which had huge capacity to store the digital data/ evidence.

"In the last decade, the practice of keeping data in digital format and its storage in smartphones has become a normal practice of record keeping of sensitive data. The large-scale destruction of digital evidence in this case was intentionally made to destroy evidence of involvement of these accused in the offence of money laundering by destroying evidence of handling of proceeds of crime, money trail as well as their involvement/ connection in the process/ activities connected with proceeds of crime for commissioning of offence of money laundering," the agency said.

The ED said that the act of proactive destruction of evidence leads to only one inference that the accused made conscious efforts to destroy evidence of the offence of money laundering.

"The destruction of evidence itself is a corroboration of the statements of these accused under section 50 of PMLA (which itself is legally admissible evidence) as well as the involvement of these accused in the offence of money laundering," the affidavit added.