The Supreme Court on Monday questioned the non-appearance of Delhi Chief Minister Arvind Kejriwal before the ED despite repeated summonses for recording of statements, and asked if he can challenge the arrest in a money laundering case related to the excise policy scam on the ground of non-recording of his version.

Kejriwal is currently lodged in the Tihar jail here under judicial custody after his arrest on March 21 in the case.

A bench of justices Sanjiv Khanna and Dipankar Datta, which posed several questions to senior advocate Abhishek Singhvi appearing for Kejriwal, asked why the Aam Aadmi Party (AAP) leader did not move a bail application before the trial court.

"Are you not contradicting yourself by saying that his statements under section 50 of the Prevention of Money Laundering Act (PMLA) were not recorded? You don't appear on summons for recording of statements under section 50 and then you say it was not recorded," the bench said.

It asked what is the investigating officer supposed to do if Kejriwal does not appear on summons.

"If you don't go for recording of section 50 statements, then you can't take the defence that his statement was not recorded," Justice Khanna said.

Singhvi said, "Thanks for saying that. Non recording of section 50 statements is not a defence to arrest me for reasons of believing there is guilt.

"I am saying other materials also do not establish my guilt. The ED came to my house to arrest me. Then why can't ED record my statement under section 50 at my house?" Section 50 of the PMLA deals with the power of ED authorities to issue summons and production of documents, evidence and other materials.

Singhvi pointed out that on April 16, 2023, Kejriwal appeared before the CBI in connection with the case and answered all the queries.

"Today, you cannot say that we will arrest you because you did not appear on summons. Can you say that since you did not cooperate, you will be arrested? "Non-cooperation cannot be a ground for criminality or grounds of arrest. This court has last year held that non-cooperation cannot be a ground of arrest under the PMLA," Singhvi said.

The senior lawyer said the chief minister does not have any immunity from prosecution and asked if he has less rights than a common citizen.

Singhvi further submitted that the denial of relief by the Delhi High Court for no coercive action can also be no ground for arrest by the ED.

At the outset, the bench asked Singhvi why did Kejriwal not move a bail application in the case.

Singhvi said that he has challenged the arrest and if the arrest is held as illegal all other things go.

"My case is that the arrest is illegal. The remit of Section 19 of PMLA is much wider as it empowers ED to arrest a person based on material in their possession which provides a reasonable basis to suspect that an individual has committed an offence punishable under the law.

"But where is the material except for five statements? There is nothing," he said.

Singhvi, who opened the arguments challenging the arrest of Kejriwal, said there was no immediate necessity to arrest the chief minister when the Model Code of Conduct is in force.

"Your (ED's) power to arrest is not an obligation to arrest. There must be reason to believe (that arrest is required). This arrest was when the Model Code of Conduct was in place.

"I am not a hardened criminal or terrorist who has done something a week back. There has to be some new material or a link which connects me directly to something," Singhvi said.

The bench then asked whether he was named in the Enforcement Case Information Report (ECIR).

"No, Not a single document connects me to the allegations. From December 2022 to July 2023, there was not a single statement where I was named.

"In July last year, a person in their custody made a statement, which was his tenth and named me. I was arrested on March 21," he said.

The bench said in a normal case, a person upon arrest moves a bail application and the court based upon the case diary forms a prima facie opinion whether to grant him relief, as the charge sheet is filed after 60 or 90 days.

Singhvi said this case should not be treated as a normal criminal case as the challenge is to the arrest itself and the ED's reason to believe guilt has to connect with the reasons to arrest.

"Yes, there are no new statements. The one which is being cited is from July last year.

"These are the same statements which the court has seen in former deputy chief minister Manish Sisodia case. The statements are of the same set of people, suspect or accused," he said.

The hearing remained inconclusive and will continue on Tuesday.

In its reply affidavit filed in the apex court earlier this week, the Enforcement Directorate (ED) has claimed that Kejriwal is the "kingpin and key conspirator" of the excise policy scam and the arrest of a person for an offence based on material can never violate the "concept of free and fair elections".

The top court issued a notice to the ED on April 15 and sought its response to Kejriwal's plea.

The high court had, on April 9, upheld Kejriwal's arrest in the money-laundering case, saying there was no illegality about it and that the ED was left with "little option" after he skipped repeated summonses and refused to join the investigation.

The matter pertains to alleged corruption and money laundering in the formulation and execution of the Delhi government's now-scrapped excise policy for 2021-22.

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