NEW DELHI: In its 25-page order granting bail to chief minister Arvind Kejriwal on Thursday, Delhi special judge Niyay Bindu cited a lack of direct evidence implicating Kejriwal in the money laundering case linked to alleged irregularities in the 2021 excise policy case and a potential bias in the Enforcement Directorate’s (ED) approach.

The court also noted ED’s silence on how the proceeds of crime were allegedly used in the Goa assembly elections by the AAP in 2022. (PTI/HT Photo)

To be sure, ED rushed to the Delhi high court on Friday morning against the judge’s order, complaining that ED hadn’t been given an opportunity to oppose the bail and that the court’s detailed bail verdict was yet to be released. The high court stayed the CM’s release from the Tihar jail until it hears the ED’s appeal against the subordinate court’s order later in the day.

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Judge Niyay Bindu’s detailed verdict, in which the judge explained why it granted bail to Arvind Kejriwal, was uploaded soon after.

In the order, the trial judge took note of ED’s assertion that the ongoing investigation could be compromised if Kejriwal was released, suggesting that he may influence witnesses and tamper with evidence. The court, however, pointed out that the investigating officer (IO) revealed that only 40 crore out of the alleged 100 crore had been traced, with no clear timeline for tracing the remaining amount.

“On this aspect, ED has failed to clarify as to how much time is required for tracing out the complete money trail. Meaning thereby that until and unless this exercise of tracing out the remaining amount gets completed by ED, accused is supposed to remain behind bars that too without proper evidence against him. This is also not an acceptable submission of ED,” Bindu said, highlighting what the court held was a lack of concrete evidence against the Aam Aadmi Party (AAP) chief.

The court also noted ED’s silence on how the proceeds of crime were allegedly used in the Goa assembly elections by the AAP in 2022. The court found it troubling that after nearly two years, a significant portion of the alleged amount remained untraced. “This is also noticeable that ED is silent about the facts as to how the proceeds of crime have been utilised in the assemble elections at Goa by AAP as admittedly after about two years, the bigger portion of the alleged amount remains to be traced out,” it said.

The court also critically examined ED’s reliance on the credibility of approvers and co-accused and rejected the agency’s assertion that investigation is an “art”, ruling that such an approach could lead to biased and unfair imprisonment of individuals based on manipulated evidence.

“The court has to take a pause to consider this argument which is not a potable submission that investigation is an art because if it is so, then, any person can be implicated and kept behind the bars by artistically procuring the material against him after artistically avoiding/withdrawing exculpatory material from the record. This very scenario constrains the court to draw an inference against the investigating agency that it is not acting without bias,” said the order.

The court further noted the lack of incriminating evidence directly linking Kejriwal to the alleged proceeds of crime, despite the ED’s claims about his associations with other accused individuals. “It may be possible that some known persons of the applicant are having involvement in an offence or being known to a third person, involved in the offence, but ED has failed to give any direct evidence against the applicant in respect of the proceeds of crime,” maintained the court.

It seems that ED also believes that the evidence on record is not sufficient to proceed against the applicant and it is taking time to procure the same in any manner whatsoever to convince the court with respect to the availability of the evidence against the applicant. The investigation agency should be prompt and fair so that it can be perceived that the principles of natural justice are also being followed by the agency.

Emphasising the need for the investigating agency to act promptly and fairly, adhering to principles of natural justice, the order added: “While the ED relied heavily on the stringent bail conditions under Section 45 of the PMLA, the court noted that the principles of legal fairness and presumption of innocence should not be overshadowed by procedural technicalities.”

It also flagged that the agency is silent on certain issues raised by Kejriwal, such as that he was not named either in CBI case or in the first case registered by the ED. “Secondly, the allegations against the applicant have surfaced after the subsequent statements of certain co-accused. Thirdly, this is also an admitted fact that the accused has not been summoned by the court till date, yet he is lying in judicial custody at the instance of ED on the pretext of the investigation still going on,” the court added.

The court acknowledged that holding a constitutional position or having clear antecedents should not be the sole grounds for bail and that the gravity of the alleged offence must also be considered. At the same time, it highlighted that the socio-economic status and previous conduct of the accused have historically been taken into account by courts. This principle was reinforced by a Supreme Court observation on May 10, noting Kejriwal’s lack of criminal antecedents and his non-threatening nature to society, when the CM was released on a 21-day interim bail for campaigning in the Lok Sabha elections.

Kejriwal has been in custody since March 21 following his arrest by ED, apart from his release on 21-day interim bail in May for Lok Sabha election campaigning.

Judge Bindu’s order was a huge setback for ED, as it means Kejriwal was successfully able to counter the accusations and challenge the existence of a prima facie case and evidence of guilt, prerequisites under Section 45 of the Prevention of Money Laundering Act (PMLA). The provision requires the trial court to be convinced that there are reasonable grounds to believe the accused is not guilty and is not likely to commit any offence while on bail.

The order came at a critical juncture when the Supreme Court has reserved its verdict on Kejriwal’s petition challenging his arrest by ED. The trial court’s ruling could also have implications for other accused in ED custody in the same case former Delhi deputy chief minister Manish Sisodia and BRS leader K Kavitha