Excise policy case: ED request for sanction to move against Kejriwal gets L-G’s nod

Reacting to the ED move to now obtain prosecution sanction, the AAP called it an attempt to “politically malign” its government.

“The so-called liquor scam investigation has dragged on for two years, harassing 500 people, filing 50,000 pages of documents, and conducting over 250 raids, and not a single penny has been recovered,” the AAP said.

“And multiple holes in the case have been highlighted by various court orders in the past years. The BJP’s real goal is to crush the AAP and Kejriwal by any means,” the party said.

Under the rules, the Lt Governor can recommend to the Ministry of Home Affairs or the Government of India, which are the competent authorities in such an instance, to grant sanction for the prosecution of the Chief Minister.

Kejriwal was arrested on March 21 by the ED after he failed to appear before it even after nine summons. He was granted bail by the Supreme Court in the ED case on July 12 and in the CBI case on September 13. He resigned as Chief Minister on September 17.

According to officials, on December 3, the ED sought permission to prosecute Kejriwal and wrote to Delhi Chief Secretary Dharmendra in his capacity as Chief Vigilance Officer.

Earlier, according to ED sources, the agency was not required to take prosecution sanction before filing a chargesheet – it is mandatory for the CBI.

The ED request for sanction, officials said, stated, “It is to inform (you) that this office has filed the Prosecution Complaint (SPC-7) against Sh. Arvind Kejriwal (Accused No. 37) on 17.05.2024 in the case, M/s IndoSpirits and Others, for irregularities in framing and implementation of the excise policy of GNCTD of Delhi for the year 2021-22.”

The ED said a Special Court had also taken cognizance of the prosecution complaint filed by it on July 9. It said the Supreme Court, in the case of ED vs. Bibhu Prasad Acharya & Others, clarified that the provision of CrPC applied to Section 65 of the Prevention of Money Laundering Act (PMLA) and Section 71(1) “cannot override the provision of CrPC which applies to the PMLA vide its judgment dated 06.11.2024”, officials said.

On November 6, the Supreme Court held that Section 197(1) of the CrPC will apply to alleged offences under the PMLA too.

In the case involving IAS officers Bibhu Prasad Acharya and Adityanath Das, both of whom were facing money laundering charges, the Supreme Court upheld a January 2019 order of the Telangana High Court which set aside the trial court’s order taking cognizance of the case. The challenge was on the ground that both of them were public servants and, therefore, it was necessary to obtain prior sanction under Section 197(1) of the CrPC before they could be prosecuted.

The ED request for sanction, officials said, stated: “In view of the above facts and circumstances, sanction may be required for prosecution of Sh. Arvind Kejriwal, former CM, Govt. of NCT of Delhi, for offence of money laundering under Section 4 of PMLA.”

Reacting to the development, Kejriwal’s counsel Abhishek Manu Singhvi said, “This is a warped system of criminal law adopted by the ED and other agencies. Two years were spent in investigation and no arrest was made till just before the Lok Sabha elections. And now just before the Assembly elections, sanction is sought.”

“While it is true that sanction is required only at the stage of cognizance, in practical terms it allows the ED to turn the law and the principles of liberty on their head and act selectively, opportunistically and according to temporary political exigencies. It may not be wrong in law but it is clearly unacceptable as a method of functioning tested by any civilized norms,” Singhvi said.

According to legal experts, the development will not change Kejriwal’s bail status and cannot lead to his arrest. The protection granted shall continue.

Senior AAP leader Manish Sisodia said, “If L-G Saxena has granted sanction to prosecute Kejriwal, then why isn’t ED showing a copy of that sanction?”.