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2024 Supreme(Del) 973
IN THE HIGH COURT OF DELHI AT NEW DELHI
SWARANA KANTA SHARMA, J.
Arvind Kejriwal - Petitioner
Versus
Directorate Of Enforcement - Respondent
W.P.(CRL) 985 of 2024 & CRL.M.A. 9427 of 2024
Decided on : 09-04-2024
Important Points
Subject
Criminal Law - Money Laundering
Act Referred
PREVENTION OF MONEY LAUNDERING ACT : S.19, S.19(1), S.19(2), S.3, S.50, S.70
INDIAN PENAL CODE : S.120(b), S.447(a)
PREVENTION OF CORRUPTION ACT : S.7
REPRESENTATION OF THE PEOPLE ACT : S.2(f)
CRIMINAL PROCEDURE CODE : S.164
Headnote
(B) Judicial Precedents - The necessity of arrest under PMLA must be established by the investigating agency, which was satisfied in this case - The court emphasized that the accused cannot dictate the manner of investigation. (Paras 158, 162)
(C) Conduct of the Petitioner - Non-compliance with summons for six months contributed to the necessity of arrest - The timing of arrest was not deemed malicious as it was a result of the petitioner’s own actions. (Paras 128, 150, 163)
(D) Findings of Court - The court found sufficient material against the petitioner to justify the arrest and remand, including witness statements and evidence of proceeds of crime. (Paras 78, 182) (E)
Result: Petition dismissed.
For the Petitioner:Dr. Abhishek Manu Singhvi, Mr. Vikram Chaudhari, and Mr. Amit Desai, Senior Advocates with Mr. Vivek Jain, Mohd. Irshad, Mr. Rajat Bhardwaj, Mr. Karan Sharma, Mr. Rajat Jain, Mr. Mohit Siwach, Mr. Kaustubh Khanna, Mr. Rishikesh Kumar, Mr. Shailesh Chauhan, Mr. Sadiq Noor, Mr. Mehul Prasad, Ms. Priyanka Sarda, Ms. Sheenu Priya and Ms. Princy Sharma, Advocates.
For the Respondent:Mr. S.V. Raju, learned ASG with Mr. Zoheb Hossain, Special Counsel for ED, Mr.Annam Venkatesh, Mr. Arkaj Kumar, Mr.Vivek Gurnani, Mr. Hitarth Raja, Ms. Abhipriya Rai, Mr. Kartik Sabharwal, Mr. Vivek Gaurav, Mr. Agrimaa Singh, Mr. Kanishk Maurya and Mr. Ritumbhara Garg, Advocates for ED along with Ms. Bhanupriya Meena, DD, Mr. Gaurav Saini, ALA and Mr. S.K. Sharma, IO for ED.
JUDGEMENT :
SWARANA KANTA SHARMA, J.
| EXORDIUM |
| INDEX TO THE JUDGMENT FACTUAL BACKGROUND |
| SUBMISSIONS ON BEHALF OF SH. ARVIND KEJRIWAL |
| SUBMISSIONS ON BEHALF OF THE DIRECTORATE OF ENFORCEMENT |
| ISSUES IN QUESTION |
| RELEVANT LAW UNDER PMLA TO ADJUDICATE THE ISSUES IN QUESTION |
| The Power To Arrest Under PMLA |
| i. Section 19 of PMLA |
| ii. Ingredients of Section 19 of PMLA |
| iii. Judicial Precedents Qua Exercise of Power Under Section 19 of PMLA |
| JURISPRUDENCE OF REMAND UNDER CRIMINAL LAW |
| Power of Remand underSection 167 of Cr.P.C. |
| Remand in cases under PMLA |
| ANALYSIS & FINDINGS |
| I. MATERIAL AGAINST THE PETITIONER COLLECTED BY THE DIRECTORATE OF ENFORCEMENT |
| The Role of Petitioner in Formulation of Delhi Excise Policy 2021-22 |
| The Role of Petitioner in Demanding Kickbacks & Petitioner’s Meetings with the South Liquor Lobby |
| Petitioner’s Association with Co-accused Vijay Nair |
| Role of Petitioner, as National Convenor of Aam Aadmi Party, in Utilisation of Proceeds of Crime |
| Applicability of Section 70 of PMLA |
| Proceeds of Crime |
| II. ARGUMENT REGARDING STATEMENTS OF WITNESSES AND APPROVERS BEING UNRELIABLE AND UNTRUSTWORTHY |
| Significance of a Statement Recorded under Section 50 of PMLA |
| Can the Statement of an Approver be Brushed Aside at the Stage of Arrest and Remand of an Accused? |
| III. WHETHER THE ARREST OF THE PETITIONER IS IN VIOLATION OF DIRECTIONS OF HON’BLE SUPREME COURT IN CASE OF PANKAJ BANSAL VS. UNION OF INDIA? |
| Contention regarding there being no fresh material collected by the respondent since October, 2023 |
| IV. WHETHER THE REMAND ORDER DATED 22.03.2024 HAS BEEN PASSED IN MECHANICAL AND ROUTINE MANNER? |
| Why was Remand Sought by the Directorate of Enforcement and Remand Granted by the Special Court in this Case? |
| V. TIMING OF ARREST VIS-A-VIS THE CONDUCT OF PETITIONER OF NOT JOINING INVESTIGATION FOR SIX MONTHS DESPITE SERVICE OF 09 SUMMONS |
| Conduct of the Petitioner |
| Replying to Summons issued under Section 50 of PMLA cannot amount to Joining Investigation |
| Whether Petitioner was entitled to Special Privileges for the purpose of complying with Summons issued under Section 50 of PMLA? |
| Timing of Arrest and the Argument of Level Playing Field |
| Was there any Necessity to Arrest the Petitioner? |
| i. Impact of Non-joining of Investigation by the Petitioner on the Trial of Co-accused Persons |
| ii. Not Joining Investigation as a Contributory Factor |
| CONCLUSION |
| The State is static, the Governments are at the will of the People. |
| State is an Entity and Not Confined to a Person |
| Courts are concerned with Constitutional Morality and not Political Morality |
| The Decision |
| EXORDIUM |
1. On 21.03.2024, a search was conducted by the Directorate of Enforcement at the official residence of Sh. Arvind Kejriwal, petitioner herein, who is the Chief Minister of the State of Delhi. After the search, he was served with grounds of arrest and was arrested on the same day at 09:05 PM by the Directorate of Enforcement in connection with ECIR No. HIU-II/14/2022 regarding his involvement in the offence of money laundering with regard to Delhi Excise Policy 2021-2022. After arrest, petitioner was produced before the learned Special Judge (PC Act) CBI-09 (MP/MLA Cases), Rouse Avenue Courts, Delhi (‘learned Special Court’), where the Directorate of Enforcement had sought his custody for the purpose of interrogation which was granted vide order dated 22.03.2024.
2. During the hearing of the present case, this Court was informed that after filing of the present petition, the learned Special Court was pleased to further extend remand of the petitioner to custody of the respondent vide another order dated 28.03.2024 till 01.04.2024. The present petition came up for hearing before this Court initially on 27.03.2024 when the petitioner was running in custody of the Directorate of Enforcement by a judicial order. The Court is informed that the petitioner herein has now been remanded to judicial custody by the learned Special Court vide order dated 01.04.2024 till 15.04.2024.
3. The present petition under Article 226 and 227 of the Constitution of Ind
