Excise case: ED urges Delhi high court to set aside Kejriwal’s bail

The Enforcement Directorate (ED) has urged the Delhi high court to set aside a city court’s order, granting bail to chief minister Arvind Kejriwal in the excise policy case, asserting that the judge admittedly did not take into account the material produced by the federal probe agency showing the reasons to believe that the Aam Aadmi Party (AAP) convener is guilty of money laundering.

Though ED’s plea was listed on Monday before a bench of justice Neena Bansal Krishna, it was adjourned to August 7 after Kejriwal’s counsel sought time to respond to the note submitted by ED. Senior advocate Vikram Chaudhari, representing the CM, asserted that the probe agency had served the copy of the reply at 11pm on Sunday, and they thus needed time to reply to the same.

Citing the Supreme Court’s July 12 order granting interim bail to Kejriwal in the ED case, the federal agency in its reply said that multiple courts, all the way up to the top court, have held that there is material against the CM which shows that there are reasons to believe that he is guilty of money laundering.

“The Ld. Vacation Judge has admittedly not taken into account the material produced by the ED showing the reason to believe that the respondent is guilty of the offence of money laundering. The Hon’ble Supreme Court in the recent decision dated 12.07.2024 in the case of the respondent has also come to the conclusion, upon being presented with the material against the respondent that there exists reasonable grounds for believing that the respondent is guilty of the offence of money laundering,” the reply dated July 14 stated.

“Multiple courts all the way upto the Hon’ble Supreme Court have held that there is material against the respondent which shows the reason to believe that the respondent is guilty of the offence of money laundering. A prosecution complaint stands filed on which summons is issued to the respondent,” the federal agency added.

On June 20, a Delhi court had granted Kejriwal bail in the ED case, citing lack of direct evidence. However, the high court halted the order less than 24 hours later, and on June 25, a vacation bench of justice Sudhir Kumar Jain stayed the bail order, calling it “perverse” and stating that it was passed without appreciating the material submitted by ED.

Kejriwal in turn contended that discretionary orders of bail cannot be set aside merely on perceptions and fanciful imagination of the prosecution. Kejriwal raised questions regarding the maintainability of the federal agency’s plea, and asserted that the high court equated the bail order with an order of guilt or acquittal, which ought to have detailed findings after meticulously weighing the evidence.

In its 72-page reply, ED asserted that high court’s order June 25 order was passed after “due consideration” of the averments from both the sides and upon correct prima facie finding that the impugned order is liable to be set aside.

ED also rejected Kejriwal’s allegations that P Sarath Reddy and Raghav Magunta, two fellow accused in the case, gave exculpatory statements in his favour and later changed their stand. Calling the same as “ex facie false”, the probe agency said that no question qua Kejriwal was ever asked from Magunta and Reddy in their previous statements.

The agency asserted that Kejriwal, during his 21-day interim bail ending June 2, also violated Supreme Court’s condition barring him from commenting on his role in the ongoing case. Kejriwal, the agency said, brazenly and flagrantly violated this condition by giving multiple interviews, speeches, press conferences while calling the present case as false, made up and a conspiracy. “The respondent has even made speeches where he said that if he is not voted in power then he may have to go back to jail else he may roam free. These comments are an abuse of the judicial process and do not deserve to be condoned,” the reply read.

Reiterating its earlier stand, the probe agency in its reply said that the bail order suffered from jurisdictional defect and was passed in breach of the mandatory twin conditions laid down under section 45 of the Prevention of Money Laundering Act. The reply stated that neither the public prosecutor was given proper opportunity to oppose the bail application nor the judge recorded its satisfaction that there are reasonable grounds for believing that the AAP supremo was not guilty of the offence of money laundering.

ED asserted that the judge had returned perverse findings in almost every paragraph of the impugned order on facts as well as on law and admittedly not examined the material placed on record. “The impugned order is not based on broad probabilities but has been passed on the basis of irrelevant considerations and perverse findings and observations contrary to the record,” the reply read.

The reply also added that the judge committed a “fatal error” by completely disregarding the vicarious role of the CM under section 70 of PMLA.