Delhi HC refuses to grant Arvind Kejriwal interim protection from coercive action in excise policy case

NEW DELHI: The Delhi High Court on Thursday refused interim protection from coercive action to Delhi Chief Minister Arvind Kejriwal and said at this stage it is not inclined to grant interim relief.

The court was hearing a plea by Kejriwal seeking protection from coercive action in connection with the excise policy case.

The bench of Justice Suresh Kumar Kait and Justice Manoj Jain passed an interim order on his petition with the main matter listed for July 22, 2024.

During the hearing, Senior Advocate Abhishek Manu Singhvi, who appeared for Kejriwal, submitted that the summons issued under Section 50 do not even reveal whether the person summoned is a witness, suspect or accused.

Singhvi referred to Karnataka Deputy Chief Minister DK Shivkumar's case order to argue for no-coercive action.

He said his client has apprehension that he would be arrested "for political purposes".

"What prevented you from arresting him, and why are you issuing summonses back-to-back?" the court asked ED during arguments.

Additional Solicitor General SV Raju replied that the agency never said that they are going to arrest.

"The power is there. You come to join the investigation, we may or may not arrest you."

Raju opposed the plea on maintainability grounds and submitted that the petition is seeking to quash and set aside all proceedings qua the petitioner in the capacity of his being national convener of a political party.

"But here, AAP has not been made an accused yet and the fact that he's challenged means that his figment of imagination can't lead to a grant of relief. A person or entity that has not been made an accused can't seek to strike down a provision," Raju said.

On Wednesday, during the hearing in the related matter before the Delhi High Court, Kejriwal's lawyers stated that they have apprehension that the ED will arrest him and that he is ready to appear if he is given protection.

The Delhi High Court had sought response of the ED on a plea filed by Kejriwal challenging the summons issued to him in connection with the Delhi excise policy case.

During the hearing, the bench asked the Kejriwal lawyers, Why don't you appear before the Enforcement Directorate? In the reply, Singhvi said that AAP leaders Manish Sisodia and Sanjay Singh were also arrested by the agency.

"We have an apprehension that ED will arrest him; he is ready to appear if he is given protection." Kejriwal, through his plea, has sought, the declaration of Section (2) (s) OF PMLA to be ultravires, unconstitutional and arbitrary insofar it is construed to include a political party within its ambit and sweep.

Kejriwal's plea stated that the present petition is being filed in extremely urgent and emergent circumstances where such arbitrary procedure under PMLA is sought to be employed "to create a non-level playing field for the impending general elections scheduled to be held from April 19, 2024, and to skew the electoral process in the favour of the ruling party at the Centre that controls the ED through the Ministry of Finance".

The plea said action is being taken in view of the petitioner's role as a vocal critic of the ruling party and his role as an opposition leader and partner of the INDIA alliance contesting the general election, stated the plea.

"By using such provisions of PMLA for investigation/arrest or threat thereof, E.D., being in control of the Central Government, has been weaponized as a tool to coerce a change in the political landscape of the country in favour of the ruling dispensation," Kejriwal alleged.

The plea further stated that it is the case of the petitioner that the said impugned summons dated February 26, 2024 and March 16, 2024, were sent to the petitioner with an oblique motive to arrest the petitioner (Kejriwal).

"The investigation in the present matter has been going on since August 22, 2022, i.e., the last one-and-a-half years and after the investigation, as many as six prosecution complaints with thousands of documents have been filed. All necessary documents/ information are already in possession of respondent and summoning the petitioner "in person" is therefore a ploy to illegally arrest him and the present matter is a clear case of malice," the petition said.

It said since elaborate complaints with thousands of documents are filed by the respondent, it is clear that all relevant material and information is already in the possession of the Directorate of Enforcement.

Last week, the Additional Chief Metropolitan Magistrate of Rouse Avenue Court granted bail to Arvind Kejriwal on two complaints filed by ED for non-compliance with summons issued by the agency.

During the hearing, Kejriwal appeared physically before the court. According to the ED, the agency wants to record Kejriwal's statement in the case on issues like the formulation of policy, meetings held before it was finalized, and allegations of bribery.

In its sixth charge sheet filed in the case on December 2, 2023, naming AAP leader Sanjay Singh and his aide Sarvesh Mishra, the ED claimed that the AAP used kickbacks worth Rs 45 crore generated via the policy as part of its assembly elections campaign in Goa in 2022.

The now-scrapped excise policy was aimed "at revitalizing the city's flagging liquor business" and replacing a sales-volume-based regime with a licence fee for traders.

Lieutenant Governor Vinai Kumar Saxena had ordered a probe into alleged irregularities in the policy.

AAP has accused Saxena's predecessor, Anil Baijal, of sabotaging the move with a few last-minute changes that resulted in lower-than-expected revenues.

Two senior AAP leaders, Manish Sisodia and Sanjay Singh, are in judicial custody in the case. Sisodia, who was the then Delhi Deputy Chief Minister, was arrested by the CBI on February 26 following several rounds of questioning.

On October 5, ED arrested Sanjay Singh, who is a Rajya Sabha member.