New Delhi, The ED on Wednesday told the Supreme Court that the trial court judge was in a "hurry" and did not give a reasonable opportunity to the public prosecutor to oppose the bail of Delhi Chief Minister Arvind Kejriwal in a money laundering case related to the alleged excise tax. scam.
The federal probe agency said the trial court's June 20 order granting bail to Kejriwal was "perverse" for non-compliance with mandatory conditions under Section 45 of the Prevention of Money Laundering Act. Money (PMLA).
A vacation bench of Justice Manoj Misra and Justice SVN Bhatti took note of the Enforcement Directorate's reply affidavit filed on Kejriwal's plea challenging the interim stay granted by the Delhi High Court on June 21. The court also allowed Kejriwal to withdraw his plea after senior advocate Abhishek Singhvi, appearing for him, said he would file a substantive appeal as the high court had pronounced the final order on June 25, staying the bail order. .
The top court granted liberty to Kejriwal to file the substantive appeal.
In its affidavit, the ED pointed out that section 45 of the PMLA provides for two mandatory conditions: that the public prosecutor be given an opportunity to oppose bail and, where the public prosecutor opposes the bail application, the court must ensure that reasonable grounds exist. for believing that the accused is not guilty of such crime and is not likely to commit any crime while out on bail."In the instant case, it is the specific ground raised by the prosecution with concrete and concise statements demonstrating that the judge (of the trial court) was in a hurry and did not give a reasonable opportunity to the Additional Solicitor General to oppose bail," he said while seeking to quash the June 20 order.
The agency said that money laundering is a specific and serious offence, the requirements of the PMLA override the provisions of the Criminal Procedure Code (CrpC) in case of grant or denial of bail.
He added that the court considering a bail application must record its satisfaction, which must be based on the court's belief that the accused "is not guilty of such an offence." "This would necessarily mean an examination of the file, the investigation documents, the complaint filed, etc., since only by examining the said file can the court reach a valid conclusion that the accused is not guilty of the crime of money laundering," he said. .
"If any of the mandatory pre-conditions mentioned above are not fulfilled, the order would constitute non-compliance with the mandate of section 45 of the Act and would also be perverse on that ground alone. Perversity may also be on grounds other than non-compliance with the conditions mandatory," the agency said.
The ED said that this is not a mere assertion by the prosecution but an admitted fact that the trial court judge did not examine the case file despite the prosecution specifically requesting it. "He admitted part of the impugned order prima facie, but it clearly reflects non-compliance with the mandatory conditions stipulated under Section 45 of the Act," he said.
The ED noted that during the bail hearing before the trial court on June 20, the trial court judge continuously asked Additional Solicitor General SV Raju to interrupt his arguments.
Even the impugned order reflects that the order was passed hastily and certainly without examining the case record, the ED said. "It is true that the expression 'opportunity of hearing' may not be able to be defined based on any particular time limit , since it would depend on the facts of each case.
"However, the undisputed facts set out in the petition about the court requiring the Additional Solicitor General to discontinue his arguments and the order itself reflecting the fact that the judge chose not to place it on record show a complete failure to comply with the requirement prior mandatory content in article 45 of the law," he said.
The agency added that all these facts show that even apart from non-compliance with the mandatory conditions under section 45 of the PMLA, the bail order is perverse in both facts and 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.
The high court on Tuesday stayed the trial court's order granting bail to Kejriwal in the case and held that the lower court had not "properly appreciated" the material presented to it by the Enforcement Directorate.
The AAP leader was arrested on March 21 by the ED and was granted 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 not provided direct evidence linking him to the proceeds of crime in the money laundering case.
The excise policy was scrapped in 2022 after Delhi's lieutenant governor ordered a CBI probe into alleged irregularities and corruption related to its formulation and execution.
According to the ED and the Central Bureau of Investigation (CBI), irregularities were committed while changing the policy and undue favors were extended to license holders.
The federal probe agency said the trial court's June 20 order granting bail to Kejriwal was "perverse" for non-compliance with mandatory conditions under Section 45 of the Prevention of Money Laundering Act. Money (PMLA).
A vacation bench of Justice Manoj Misra and Justice SVN Bhatti took note of the Enforcement Directorate's reply affidavit filed on Kejriwal's plea challenging the interim stay granted by the Delhi High Court on June 21. The court also allowed Kejriwal to withdraw his plea after senior advocate Abhishek Singhvi, appearing for him, said he would file a substantive appeal as the high court had pronounced the final order on June 25, staying the bail order. .
The top court granted liberty to Kejriwal to file the substantive appeal.
In its affidavit, the ED pointed out that section 45 of the PMLA provides for two mandatory conditions: that the public prosecutor be given an opportunity to oppose bail and, where the public prosecutor opposes the bail application, the court must ensure that reasonable grounds exist. for believing that the accused is not guilty of such crime and is not likely to commit any crime while out on bail."In the instant case, it is the specific ground raised by the prosecution with concrete and concise statements demonstrating that the judge (of the trial court) was in a hurry and did not give a reasonable opportunity to the Additional Solicitor General to oppose bail," he said while seeking to quash the June 20 order.
The agency said that money laundering is a specific and serious offence, the requirements of the PMLA override the provisions of the Criminal Procedure Code (CrpC) in case of grant or denial of bail.
He added that the court considering a bail application must record its satisfaction, which must be based on the court's belief that the accused "is not guilty of such an offence." "This would necessarily mean an examination of the file, the investigation documents, the complaint filed, etc., since only by examining the said file can the court reach a valid conclusion that the accused is not guilty of the crime of money laundering," he said. .
"If any of the mandatory pre-conditions mentioned above are not fulfilled, the order would constitute non-compliance with the mandate of section 45 of the Act and would also be perverse on that ground alone. Perversity may also be on grounds other than non-compliance with the conditions mandatory," the agency said.
The ED said that this is not a mere assertion by the prosecution but an admitted fact that the trial court judge did not examine the case file despite the prosecution specifically requesting it. "He admitted part of the impugned order prima facie, but it clearly reflects non-compliance with the mandatory conditions stipulated under Section 45 of the Act," he said.
The ED noted that during the bail hearing before the trial court on June 20, the trial court judge continuously asked Additional Solicitor General SV Raju to interrupt his arguments.
Even the impugned order reflects that the order was passed hastily and certainly without examining the case record, the ED said. "It is true that the expression 'opportunity of hearing' may not be able to be defined based on any particular time limit , since it would depend on the facts of each case.
"However, the undisputed facts set out in the petition about the court requiring the Additional Solicitor General to discontinue his arguments and the order itself reflecting the fact that the judge chose not to place it on record show a complete failure to comply with the requirement prior mandatory content in article 45 of the law," he said.
The agency added that all these facts show that even apart from non-compliance with the mandatory conditions under section 45 of the PMLA, the bail order is perverse in both facts and 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.
The high court on Tuesday stayed the trial court's order granting bail to Kejriwal in the case and held that the lower court had not "properly appreciated" the material presented to it by the Enforcement Directorate.
The AAP leader was arrested on March 21 by the ED and was granted 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 not provided direct evidence linking him to the proceeds of crime in the money laundering case.
The excise policy was scrapped in 2022 after Delhi's lieutenant governor ordered a CBI probe into alleged irregularities and corruption related to its formulation and execution.
According to the ED and the Central Bureau of Investigation (CBI), irregularities were committed while changing the policy and undue favors were extended to license holders.
