Kejriwal bail order quotes CJI, pokes holes in ED claims on ‘crime proceeds’

“But, in the recent past Hon’ble Supreme Court and Hon’ble Chief Justice of India has been encouraging the trial courts to take up the such matters and decide the same. Recently, on CBI Day Celebration, Hon’ble Chief Justice while addressing the gathering and perceiving the difficult and cumbersome task being done by the trial court Special Judges attending CBI and ED matters, passed encouraging remarks for such courts for their motivation and inspiration,” the order stated.

The trial court also said that “the observations of the Supreme Court cannot be ignored” while considering that Kejriwal is the Chief Minister of Delhi and that his constitutional office is relevant to being considered for bail. The order quoted a paragraph from the SC’s May 10 order granting interim bail that Kejriwal “is not a threat to the society”.

Apart from relying on SC observations, the trial court, in an apparent response to the high bar under Section 45 of the Prevention of Money Laundering Act that deals with grant of bail, held that the ED was “yet to establish guilt”.

Section 45 of the PMLA requires the Court to apply the “twin-test” to arrive at a conclusion that there is no prima facie case against the accused and that the accused is unlikely to commit any further offence while on bail. It will have to been seen whether a prima facie finding of not guilty can be read as “yet to establish guilt”.

The court raised three issues to poke holes in the prosecution case: the timing of the arrest; revisions in approver statements; and whether money seized is actually proceeds of crime.

“There are certain undisputed facts as specified on behalf of the applicant that in the month of July 2022, the material was available with the ED against the accused but he was called only in August 2023 which shows malafide of ED and ED has failed to answer this objection of the applicant,” the order stated.

On the second aspect that the statements of approvers initially did not refer to Kejriwal, the order records ED’s submission that “Investigation is an art, and sometimes one accused is given lollypop of bail and pardon and induced with some assurance to make them tell the story behind the offence.”

To this, the court said that it “has to take a pause to consider this argument which is not an potable submission that investigation is an art because if it is so, then, any person can be implicated and kept behind the bars by artistically procuring the material against him after artistically avoiding/withdrawing exculpatory material from the record.”

The court said that this argument “constrains the court to draw an inference against the investigating agency that it is not acting without bias”.

On linking the money seized so far by the ED to proceeds of crime, the court said that the “ED is silent about the facts as to how the proceeds of crime have been utilised in Assembly Elections at Goa by AAP as admittedly after about two years, the bigger portion of the alleged amount remains to be traced out”.

The link between Kejriwal and the money trail recovered so far is crucial to the ED’s case to establish guilt.

The ED had earlier alleged that Kejriwal was “directly involved in the formulation” of the now-scrapped Delhi excise policy, which was drafted “considering the favours to be granted to the ‘South Group’”. The ED had claimed that the South Group “secured uninhibited access, undue favours, attained stakes in established wholesale businesses, and multiple retail zones (over and above what was allowed in the policy)”, and paid Rs 100 crore to AAP leaders in return.

The agency also alleged that bribes received from the ‘South Group’ were funnelled into the AAP’s Goa Assembly poll campaign in 2021-2022.