Excise policy case: Delhi HC seeks Arvind Kejriwal, Manish Sisodia response on ED plea to expunge remarks

New Delhi: The Delhi High Court on Tuesday asked former chief minister Arvind Kejriwal, his deputy Manish Sisodia and 21 others who were accused in the excise policy case to respond to a plea by the Enforcement Directorate (ED) to expunge "unwarranted" remarks made against it by the trial court.

The case is listed for further hearing on March 19.

Justice Swarana Kanta Sharma said the observations in the trial court order, which discharged all the 23 accused in the CBI case, appeared to be general in nature.

"These are general observations and have nothing to do with the case. He (trial judge) was not saying it in the context of this case. He was feeling whatever he was feeling... He thought it was an unfair investigation, so he made observations as some judges, including me, generally do," the court said verbally.

Additional Solicitor General S V Raju, who appeared for the ED, contended that the trial court judge "had no business" making adverse statements and allegations in a case the ED was not even a party to.

"There are direct allegations against ED in a matter where the ED is not a party. ED is not concerned... These will be used against me. ED was condemned without a hearing," he submitted.

Raju urged the court to direct that the observations would not influence any other case.

The senior counsel appearing for some of the accused said the remarks highlighted by the ED were without context and that those could not be viewed in a "piecemeal" manner.

The court then asked the counsel to file replies, observing that the trial court order discharging the accused persons was already challenged by the CBI.

In the petition, ED said the trial court's remarks were wholly extraneous to the CBI's case. It said the ED was neither a party in those proceedings nor afforded any opportunity to be heard.

"If such sweeping, unguided, bald observations are permitted to stand ... grave and irreparable prejudice would be caused to the public at large as well as the petitioner," the ED plea said.

"Therefore, the aforesaid paragraphs which concern the investigation independently conducted by the Enforcement Directorate under the PMLA (Prevention of Money Laundering Act) deserve to be expunged as it amounts to a clear case of judicial overreach...," it added.

On February 27, the trial court discharged Kejriwal, Sisodia and others in the Delhi liquor policy case, pulling up the CBI by saying that its case was wholly unable to survive judicial scrutiny and stood discredited in its entirety.

The trial court ruled that the alleged conspiracy was nothing more than a speculative construct resting on conjecture and surmise, devoid of any admissible evidence.

To compel the accused to face the rigours of a full-fledged criminal trial in the stark absence of any legally admissible material did not serve the ends of justice, it said.

In its order, the trial court highlighted that a procedure permitting prolonged or indefinite incarceration based on a provisional and untested allegation risked "degenerating into a punitive process" and raised a "concern of considerable constitutional significance" where individual liberty was "imperilled" by invoking the Prevention of Money Laundering Act.

It said the issue assumed heightened significance where an accused was arrested for the offence of money laundering and thereafter required to surmount the stringent twin conditions prescribed for the grant of bail, resulting in prolonged incarceration even at the pre-trial stage.

It further said that despite the settled legal position that the offence of money laundering cannot independently subsist and requires the foundational edifice of a legally sustainable predicate offence, the prevailing practice revealed a disturbing inversion.

Underlining that the objective of PMLA was undoubtedly legitimate and compelling, the trial judge mentioned that statutory power, however wide, could not eclipse constitutional safeguards.