Judge was in hurry, didn't give prosecutor opportunity to oppose Kejriwal's bail: ED to SC

New Delhi: The ED on Wednesday told the Supreme Court that the trial court judge was in a "hurry" and did not afford a reasonable opportunity to the prosecutor to oppose Delhi Chief Minister Arvind Kejriwal's bail in a money laundering case linked to the alleged excise scam.

The federal probe agency said the June 20 order of the trial court granting regular bail to Kejriwal was "perverse" for non-compliance of prerequisite mandatory conditions under section 45 of the Prevention of Money Laundering Act (PMLA).

A vacation bench of Justice Manoj Misra and Justice SVN Bhatti took on record the Enforcement Directorate's reply affidavit filed in Kejriwal's plea challenging the interim stay granted by the Delhi High Court on June 21.

The bench also allowed Kejriwal to withdraw his plea after senior advocate Abhishek Singhvi, appearing for him, said he would file a substantial appeal as the high court has pronounced the final order on June 25, staying the bail order.

The top court granted liberty to Kejriwal to file the substantial appeal.

In its affidavit, the ED pointed out that section 45 of the PMLA envisages two mandatory conditions— public prosecutor be given the opportunity to oppose bail and where the public prosecutor opposes the bail application, the court has to satisfy itself that there exist reasonable grounds for believing that accused is not guilty of such offence and that he is not likely to commit any offence while on bail.

"In the instance case, it is the specific ground raised by the prosecuting agency with specific and concise averments showing that the judge (of trial court) was in a hurry and did not afford a reasonable opportunity to the Additional Solicitor General to oppose the bail," it said while seeking to set aside the June 20 order.

The agency said money laundering being a specific and serious offence, the requirements under the PMLA override the provisions of the Code of Criminal Procedure (CrpC) in case of a grant or refusal of bail.

It added the court considering an application for bail must record its satisfaction which should be based on a belief formed by the court that the accused "is not guilty of such offence".

"This would necessarily mean an examination of record, investigation papers, complaint filed etc. since it is only on perusal of such record that the court can reach a valid conclusion of the accused being not guilty of the offence of money laundering," it said.

"If any of the above referred pre-requisite mandatory conditions are not complied with, the order would be in non-compliance of the mandate of section 45 of the Act and would also be perverse only on that ground. The perversity can also be on other grounds other than non-compliance with mandatory conditions," the agency said.

The ED said it is not a matter of mere contention of the prosecuting agency but an admitted fact that the trial court judge did not examine the record of the case despite specifically requested by the prosecuting agency.

"Admitted part in the impugned order itself prima facie but clearly reflects non-compliance with mandatory conditions stipulated under section 45 of the Act," it said.

The ED pointed out that during the bail hearing before the trial court on June 20, the Additional Solicitor General SV Raju was continuously asked to cut short his arguments by the trial court judge.

Even the impugned order reflects that the order has been passed hurriedly and admittedly without perusing the record of the case, the ED said.

"It is true that the expression 'opportunity of hearing' may not be capable of being defined based upon any particular time limit since it would depend upon the facts of each case.

"However, undisputed facts stated in the petition regarding the court requiring the Additional Solicitor General to cut short his arguments and the order itself reflecting the fact that the judge chose not to go into the record shows complete non-compliance with the mandatory prerequisite contained in section 45 of the Act," it said.

The agency added that all these facts show that even in addition to non-compliance of mandatory conditions under section 45 of the PMLA, the bail order is otherwise perverse both on facts and in law and deserves to be set aside.

Earlier on Wednesday, a Delhi court allowed the CBI to formally arrest Kejriwal in connection with the alleged excise scam.

On Tuesday, the high court stayed the trial court order granting Kejriwal bail in the case and held that the lower court did not "appropriately appreciate" the material placed before it by the Enforcement Directorate.

The AAP leader was arrested on March 21 by the ED and granted regular bail by the trial court on June 20.

In its bail order, the trial court held that prima facie Kejriwal's guilt was yet to be established and that the ED had failed to furnish direct evidence linking him to the proceeds of crime in the money laundering case.

The excise policy was scrapped in 2022 after the Delhi lieutenant governor ordered a CBI probe into alleged irregularities and corruption involving its formulation and execution.

According to the ED and the Central Bureau of Investigation (CBI), irregularities were committed while modifying the policy and undue favours were extended to the licence holders.