Aam Aadmi Party national convener and Delhi chief minister Arvind Kejriwal has refuted allegations levelled by the Enforcement Directorate (ED) in the Supreme Court saying that the ED’s reply leaves no manner of doubt that the agency has acted in a most high-handed manner in a gross affront to the due process of law. ED’s claims are bogus, based on blatant falsehoods and have no ground, he said. The present case is a classic case of how the ruling party-led central government has misused the central agency, Enforcement Directorate, and its wide powers under PMLA to crush its biggest political opponent Aam Aadmi Party and its leaders, said the CM.
In his rejoinder to the Supreme Court, Arvind Kejriwal highlighted that his arrest by the ED relied solely on the statements of four accused turned witnesses with direct links to and benefits from the BJP. For instance, Magunta Sreenivasulu Reddy, who received an NDA Lok Sabha ticket, gave a statement to facilitate the bail of his son, Raghav Reddy. Another approver, P Sarath Reddy, sent ₹60 crore to the BJP’s account through electoral bonds to secure his own bail. A third person, Satya Vijay Naik, who fought the 2022 Goa assembly elections on an AAP ticket, is closely associated with Goa CM Pramod Sawant and fought on BJP ticket in 2012 and 2017. Another accused turned approver was a close aide of former BJP CM, Manohar Parrikar. Thus, all 4 incriminating statements are from persons closely linked to the BJP.
Arvind Kejriwal’s rejoinder before the Supreme Court reads, “A cumulative reading of the ED’s stand in its reply would expose the bogey and blatant falsehood in the conduct of its proceedings. The record would reveal that each and every summons that have been issued to Shri Arvind Kejriwal have been duly responded. In the instant case, the ED has not only been opaque and dictatorial in its approach but also guilty of suggestio falsi (suggesting falsehood) & suppressio veri (suppressing truth).”
The reply states that the entire basis of Arvind Kejriwal’s arrest rests upon certain statements which are in the nature of self-incriminating confessions by alleged accomplices who have been given immunity by way of pardon, etc. These alleged incriminating evidences are therefore obtained under an arrangement without any corroborative evidence. AAP national convener Arvind Kejriwal’s arrest constitutes an unprecedented assault on the tenets of democracy based on ‘free and fair elections’ and ‘federalism’ both of which form significant constituents of the basic structure of the Constitution. The ED abused its power of arrest in the middle of the general election and while relying on the same material as was in possession months before its arrest. In such circumstances, the case of Arvind Kejriwal is “peculiar and grave” and warrants “urgent intervention of this court” to protect the life and liberty of an individual.
Refuting the ED’s claims of statements relied upon in the grounds of arrest, Arvind Kejriwal’s rejoinder reads, “The statements ED is heavily relying on are not of the approvers but that of co-accused persons who were made to give statements prior to such grant of pardon. As per Magunta Sreenivasulu Reddy’s (MSR) own statement under Section 50 PMLA dated 24.03.2023- on 03.03.2021, MSR sought an appointment from CM Office, Delhi saying that he was a member of Parliament and wanted to be a pay courtesy call on Delhi Chief Minister. He sought an immediate meeting and was given the time for 16.03.2021. On 16.03.2021 he came to the CM office at 4:30 PM, he was issued a pass and was escorted respectfully to the CM Office. In this meeting, MSR requested for a piece of land to set up a charitable trust for his family in Delhi. The Chief Minister informed him that land did not come under the jurisdiction of the elected government of Delhi and was within the jurisdiction of LG of Delhi. Therefore, the Chief Minister will not be able to allot the land to him. However, MSR could write a letter to the Chief Minister and the Chief Minister would forward the same to the office of LG.”
“On 16.09.2022, MSR’s house was raided by ED and in his statement dated 16.09.2022, MSR did not allege anything against Shri Arvind Kejriwal. This statement is put in the list of un-relied upon documents and is not produced before either the court or accused persons. Subsequently his son Raghav Magunta was arrested by ED on 11.02.2023. On 24.03.2023, MSR again gave a statement under Section 50 of the PMLA wherein he confirmed that in his meeting with the Chief Minister on 16.03.2023, he sought land for his charitable trust. Five months down the line due to his son’s continued incarceration, father broke down, and could not accept his son’s continued incarceration. Therefore, in order to secure no objection from ED for his son’s bail, on 16.07.2023 and 17.07.2023, MSR gave a statement on the asking of the ED seeking to implicate Shri Arvind Kejriwal herein contradicting his earlier statement. One day after MSR’s statement dated 17.07.2023, on 18.07.2023, his son Raghav Magunta was granted interim bail on health grounds with no-objections from ED. On 03.10.2023, MSR’s son Raghav Magunta was granted pardon,” the rejoinder states.
Arvind Kejriwal’s rejoinder further reads, “Belated and contradictory statement of MSR is nothing but a statement given on coercion and pressure exerted by the ED. The said subsequent statement is also made in exchange of his and his son’s liberty. Hence, it is clear that ED’s only objective to taking action against MSR and his son was to pressurize and coerce them to falsely implicate Shri Arvind Kejriwal. Till the time a statement against the Chief Minister was not made, ED kept taking their statements while also objecting to the bail of Raghav Magunta. However, as soon as a statement implicating Shri Arvind Kejriwal was made, MSR’s son was released on bail. This is nothing but a fabrication of evidence and extorting statements by abuse of powers granted under Section 19, 50 and 45 of the PMLA. That MSR has now joined TDP and is contesting the present Lok Sabha elections on its ticket. The TDP is in alliance with BJP for the present general elections and is a part of NDA.”
“On 16.09.2022, P. Sarath Chandra Reddy was raided by the ED and his statement was recorded. No allegations against Shri Arvind Kejriwal were made. However, the ED concealed this statement from the court and accused persons. On 26.10.2022 and 09.11.2022, Sarath Reddy’s statements were again recorded, with no allegations against Kejriwal. Despite this, he was arrested on 10.11.2022. After failing to secure bail, Sarath Reddy implicated Shri Arvind Kejriwal in statements dated 25.04.2023 and 29.04.2023. He was granted bail on 08.05.2023 for medical reasons and pardoned on 29.05.2023. Out of 13 statements by PSR, only two implicated Shri Arvind Kejriwal, fabricated by the ED,” the petition mentioned. It is now clearly established from data on electoral bonds that Sarath Chandra Reddy’s companies donated a total of Rs 60 crore to the BJP, Rs 55 crore of which was donated after his arrest on 10.11.2022.
Arvind Kejriwal’s rejoinder mentions that the ED has referred to certain statements of certain persons engaged in election campaign-related activities of AAP in Goa. That none of such statements or the details of the said persons or the content of what they have stated is relied upon or even mentioned in the grounds of arrest of Arvind Kejriwal. Hence it is implicit and apparent that none of such statements are of any importance or relevance and certainly not of such sterling nature so as to justify an arrest of the sitting Chief Minister of GNCTD. The grounds of arrest mention that one candidate of AAP for the Goa elections has received expenses in cash from an AAP volunteer in Goa. That such a statement does not in any manner without any specific details or any specific allegations make out a case against the national convener of a national political party. The AAP candidate in question happens to be one Satya Vijay Naik who is closely associated with Goa CM Pramod Sawant and had earlier fought the 2012 and 2017 Goa elections on a BJP ticket.
“There is no detail, no correlation, no involvement of Shri Arvind Kejriwal shown to have existed for commission of 37 offences under Section 3 on the basis of such statement. No proof of even any cash payment was given. There exists no proof or material demonstrating that the AAP received funds or advanced kickbacks from the South group, let alone utilising them in the Goa election campaign. Not a single rupee was traced back to the AAP, and the allegations put forth in this regard are devoid of any tangible evidence, rendering them vague, baseless without any corroboration. There is no link whatsoever established by ED to claim that an amount of ₹45 Crores was transferred by South group as advanced kickback which was then utilized by AAP in Goa elections,” the rejoinder reads.
“Few self-serving statements of hawala dealers about alleged cash transfer without any corroboration or link with the facts of the present case does not establish any case under the PMLA to justify the arrest of Shri Arvind Kejriwal in the middle of the general elections 2024. There is absolutely no evidence that an amount of ₹45 crore which allegedly came from South Group was utilized by AAP in Goa election. There is no statement or evidence to prove the same. Moreover, ED has randomly and vaguely without any specific link of cash payments with the scheduled offences- referred to certain cash payments made in Goa. That such an allegation is on the face of it liable to be rejected as it does not constitute any offence under Section 3 PMLA,” it reads.
The CM stated that the ground of arrest alleges that Arvind Kejriwal generated proceeds of crime to the tune of ₹45 crore. There is no material to show the involvement in the process or activity related to POC – be it one of concealment, possession, acquisition, use of proceeds of crime as much as projecting it as untainted property or claiming it to be so. There is no proof that the party received any funds from South Group which is then utilised in Goa. The ED in its counter affidavit filed before the High Court has already admitted that Arvind Kejriwal was not involved in handling the transfer of any amounts. The same specific ground on the same material – in relation to the said proceeds of crime amounting to ₹45 crore was raised by Manish Sisodia also and the same was also rejected by the Supreme Court in its judgment while holding that there is no specific allegation of involvement of Manish Sisodia in the transfer of ₹45 crore, likewise there is no specific allegation or act which is being alleged by ED against Arvind Kejriwal and therefore, there is no offence which is made out under Section 3 PMLA.
It mentions that despite the fact that Arvind Kejriwal had himself made the submissions before the court, he was ready and willing to cooperate with the Investigating Agency and has no objection if the custody remand is extended further, as the earlier order of remand along with the action of arrest had already been challenged before the High Court of Delhi. Under no circumstances could an inference be drawn that Arvind Kejriwal had abandoned his rights whereas, on the contrary, Arvind Kejriwal had challenged the illegal action of arrest and mechanical order of remand before the High Court without any lapse of time.
Arvind Kejriwal’s rejoinder highlights that while claiming its supremacy and absolute “touch me not attitude” in the field of purported investigations, what the ED forgets is that it has never claimed that the summons were issued to an accused who did not obey. It also forgets that Section 19 does not validate an arrest merely on account of alleged non-cooperation. What is the alleged non-cooperation, has never been spelt out by the ED. What was the requirement in not calling Arvind Kejriwal either through an authorised agent or seeking information or documents from him in writing or through a virtual mode and insisting on his presence physically in person?
“The ED has categorically stated in their reply filed in these proceedings, that Shri Arvind Kejriwal is not named as an accused in the ECIR; nor is he named as an accused in the scheduled offence registered by the CBI, which is the foundation of the proceedings in the ECIR. The power to arrest in the present case is a glaring abuse of the due process of law as well as the procedure established. ED’s approach completely negates the basic tenets and foundation principles of criminal jurisprudence i.e. fair investigation, fair trial and rule of law,” the rejoinder mentions.
Refuting the ED’s claims of large-scale destruction of evidence, Arvind Kejriwal’s rejoinder reads, “There is not even a single averment alleging the destruction of evidence of any kind by Shri Arvind Kejriwal and hence the said ground is devoid of any merit. Moreover, the Respondent being devoid of any cogent reason, is now raising frivolous and fictitious grounds for justifying the illegal arrest of the Shri Arvind Kejriwal.”
The rejoinder emphasises that the ED’s claims that it is well within its rights to negate all basic foundational principles of the criminal justice system including fair investigation, fair trial, rule of law, and duty of prosecutor to lay before the court all evidence in search of one objective i.e. truth, to be all redundant and a dead letter. The blatant high-handedness, arbitrariness and the dictatorial approach of ED in violating the life and liberty of an individual without following the due process of law. The record reveals that to every summons, Arvind Kejriwal has given a comprehensive reply and raised pertinent issues which have not been responded to and ED has maintained an eerie silence.
“The ED illegally ‘picked up’ a sitting Chief Minister and the National Convenor of one of the 6 national Opposition parties in India on 21.03.2024, that is, 5 days after the General Elections were called and the Model Code of Conduct was put in place. Shri Arvind Kejriwal’s political party is in direct opposition to the ruling political party at the Centre in the on-going General Elections and voting has already commenced from 17.04.2024. During an election cycle when political activity is at its highest, Shri Arvind Kejriwal’s illegal arrest has caused grave prejudice to Shri Arvind Kejriwal’s political party, and will provide the ruling party at the Centre an unjust upper hand in the on-going elections. A level playing field- which is a pre-requisite for ‘free and fair elections’- has clearly been compromised with the illegal arrest of Shri Arvind Kejriwal,” the rejoinder mentions.
Refuting ED’s cherry-picking of statements of approvers, the rejoinder reads, “It is the investigating officer’s discretion as to what statement to rely on and what not to reply on and the Respondent goes on to term the investigating officer as the “Master of the Brief”. That such a statement on behalf of the ED is nothing short of being blatant display of abuse of power and that the same are not conceivable in the eyes of law. It is a settled law by this Hon’ble Court that it is the investigating officer’s duty to “unearth the truth” but not to prosecute the accused person by cherry-picking a few statements here and there. That the IO cannot cherry-pick the statements or the material that has been collected during the investigation. This approach would clearly reveal that ED proceeds on the basis that it has a right to conceal documents which are in the favour of the accused from the court and the accused. This negates the very principle of fair trial and fair investigation.”
The rejoinder says that this approach would make the investigating officer the final arbiter of truth and arrest individuals in such draconian law having grave adverse effects on personal liberty. This approach also prevents the court from exercising its power of judicial review and suggests that courts should be mute spectators to such blatant and grave violations of personal liberty by following procedures unknown to law being violative of Article 21 of the Constitution of India. ED’s approach is a blatant display of tyranny and gives an insight into how it abuses the draconian provisions of PMLA with blatant violations of (a) Right of life and liberty; (b). Principles of fair trial and fair investigation; (c) Due process of law and (d) Rule of law. None of said statements even remotely indicate the involvement of Arvind Kejriwal in any activities related to the commission of predicate offences under Sec. 3 PMLA whether it be concealment, possession, acquisition, or utilisation of proceeds of crime. No offence is made out under PMLA on the basis of such evidence to arrest a sitting Chief Minister.
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