DELHI HIGH COURT
Swarana Kanta Sharma, J.
Arvind Kejriwal – Petitioner
versus
Directorate of Enforcement – Respondent
W.P. (Crl) 985 of 2024 and
Crl. M.A. 9427 of 2024
Decided on 9.4.2024

IMPORTANT POINT
(1) Delhi liquor scam – Arrest of petitioner Arvind Kejriwal, Chief Minister of State of Delhi is not illegal.
(2) Law of approver is more than 100 years old – It is Court of law that evaluates credibility and relevance of evidence presented by approver and determines whether to accept their testimony or not at relevant stage of trial.
(3) Courts are concerned with Constitutional Morality and not Political Morality – By following constitutional morality, Courts uphold integrity of legal institutions and ensure that justice is dispensed impartially, free from influence of political expediency.
(4) Accused cannot dictate manner in which investigation has to be conducted – Court would not lay down two different categories of laws, one for common citizens and other granting special privilege to be extended by investigating agency to a Chief Minister or any other person in power.

Headnote:

(A) Prevention of Money Laundering Act, 2002 – Sections 19, 45 and 70(1), Proviso – Criminal Procedure Code, 1973 – Sections 167 and 482 – Constitution of India – Articles 226 and 227 – Delhi liquor scam – Arrest of petitioner Arvind Kejriwal, Chief Minister of State of Delhi – Legality of – It is case of Directorate of Enforcement that Sh. Kejriwal has been intrinsically involved in entire conspiracy of Delhi Excise Policy Scam wherein proceeds of crime were used in election campaign of Aam Aadmi Party for Goa Assembly elections and all these activities were not only done with his knowledge but also with his active collusion – It is a matter of arguments and trial which may be taken up at the time of framing of charge, or any other appropriate stage – Sh. Kejriwal is in charge of and responsible for conduct of business of Aam Aadmi Party, and prima facie would be liable for affairs of party so as to attract Section 70(1) of PMLA – However, as per proviso of Section 70(1), petitioner Sh. Kejriwal will have right to prove, at appropriate stage, that he did not have any knowledge of contravention of provisions of PMLA committed by his party or that he had exercised due diligence to prevent the same – This right is not available as in all other criminal cases at the stage of arrest or remand as per existing law of country. (Paras 68, 69 and 70)

(B) Prevention of Money Laundering Act, 2002 – Sections 19, 45 and 70(1), Proviso – Criminal Procedure Code, 1973 – Sections 167 and 482 – Constitution of India – Articles 226 and 227 – Delhi liquor scam – Arrest of petitioner Arvind Kejriwal, Chief Minister of State of Delhi – Legality of – Material reveals that Sh. Arvind Kejriwal had allegedly conspired with other persons and was involved in formulation of Delhi Excise Policy 2021-22, in the process of demanding kickbacks from South Group, as well as in generation, use and concealment of proceeds of crime – He is allegedly involved in offence of money laundering in two capacities – Firstly, in his personal capacity as he was involved in formulation of Excise Policy and in demanding kickbacks – Secondly, in his capacity as National Convenor of Aam Aadmi Party – Once there is prima-facie material regarding laundering of kickbacks on Goa Elections and money being already spent for said purpose in year 2022 itself, recovery in year 2024 or non-recovery of any remaining amount will become clear only once prosecution complaint is filed – Courts in all criminal cases wait for charge-sheet/prosecution complaints to be filed and entire evidence being placed before it against accused before giving a finding on a prima-facie case for the purpose of cognizance, charge or final acquittal at appropriate stages of trial and not when investigation against an accused has begun and charge-sheet/prosecution complaint is yet to be filed – A different criteria cannot be adopted in present case for said purpose. (Paras 77 and 78)

(C) Criminal Procedure Code, 1973 – Section 164 – Statement of Approver – Approver is an individual who provides crucial evidence against co-accused in exchange for leniency or immunity from prosecution as per law – However, it is Court of law that evaluates credibility and relevance of evidence presented by approver and determines whether to accept their testimony or not at relevant stage of trial – Similarly, bail, which entails release of an accused pending trial, is a judicial prerogative – While investigating agencies may make recommendations or oppose bail applications based on their findings, final decision lies with Court of law which is based on established principles of jurisprudence of bail – Law of approver is more than 100 years old – Trials have taken place, are taking place and have ended in conviction or acquittal in which approver’s statements have been recorded and relied upon by prosecution – Question of non-supply and reliance of some earlier statements of approvers cannot arise at this stage as documents are not to be supplied at stage of remand or arrest but at appropriate stage of trial under Section 207 Cr.P.C., when as a matter of right, accused will be entitled to all documents and statements as per law, whether relied or unrelied. (Paras 88, 89, 90, 91, 92 and 93)

(D) Prevention of Money Laundering Act, 2002 – Sections 19, 45 and 70(1), Proviso – Criminal Procedure Code, 1973 – Sections 167 and 482 – Constitution of India – Articles 226 and 227 – Delhi liquor scam – Arrest of petitioner Arvind Kejriwal, Chief Minister of State of Delhi – Legality of – Who gives tickets for contesting elections to whom or who purchases electoral bonds for what purpose is not the concern of this Court, as this Court is required to apply law and evidence before it as it is and in context in which it has been placed before it – Petitioner wants this Court to conduct a mini trial and give a conclusive finding regarding validity and authenticity of statement of witnesses, test evidentiary value and intent behind statements of approvers, which is not permissible in law – This Court cannot step into shoes of Trial Court and conduct a mini trial in a writ jurisdiction when prosecution complaint has not even been filed against petitioner – Merely because approver has chosen to reveal some new facts at a later stage, only after initially concealing them including role of Sh. Kejriwal, same cannot be a ground to disregard their statements completely – Accused may realise his or her mistake at a later stage and may offer to state true facts in exchange for securing pardon as per the law – Prima facie, mandatory provisions of Section 19 of PMLA have been satisfied by Directorate of Enforcement while arresting petitioner Sh. Kejriwal and there is material at this stage which points out towards guilt of petitioner for commission of offence of money laundering. (Paras 97, 100, 101, 102 and 114)

(E) Prevention of Money Laundering Act, 2002 – Section 50 – Offence of money laundering – When a person is called by Directorate of Enforcement under Section 50 of PMLA by sending a summon, such person has to appear before concerned authority – Being Chief Minister of State, petitioner was aware that an investigating agency was sending him summons under provisions of Section 50 of PMLA and many of his co-accused persons were in judicial custody in same ECIR – Replying to summons in this case cannot be equated with joining of investigation as replies sent by Sh. Kejriwal were counter questioning investigating agency about its intent and authority to summon him to join investigation of a pending case, which could not have been done by way of a reply but only through order of a court of law – Accused cannot dictate manner in which investigation has to be conducted – Court would not lay down two different categories of laws, one for common citizens and other granting special privilege to be extended by investigating agency to a Chief Minister or any other person in power only on the basis of being in that public office since that public office is enjoyed by that public figure due to mandate of public. (Paras 134, 135, 138, 140, 143 & 147)

(F) Prevention of Money Laundering Act, 2002 – Sections 19, 45 and 70(1), Proviso – Criminal Procedure Code, 1973 – Sections 167 and 482 – Constitution of India – Articles 226 and 227 – Delhi liquor scam – Arrest of petitioner Arvind Kejriwal, Chief Minister of State of Delhi – Legality of – Conduct of petitioner Sh. Kejriwal of not joining investigation left little option with Directorate of Enforcement other than his arrest for the purpose of investigation of a pending case in which other co-accused are in judicial custody and investigating agency is also running against time – Repeated non-compliance of summons for over a period of six months by petitioner was indeed a contributing factor in his arrest – Had petitioner joined investigation pursuant to issuance of summons under Section 50 of PMLA, he could have given his version before investigating agency against material which it had collected – Courts are concerned with Constitutional Morality and not Political Morality – By following constitutional morality, Courts uphold integrity of legal institutions and ensure that justice is dispensed impartially, free from influence of political expediency – Since arrest of petitioner and impugned remand order are held valid, prayer seeking release of petitioner is also liable to be rejected.

(Paras 162, 163, 177, 178, 179, 182 & 183)

Result: Petition dismissed.