ED moves Delhi HC seeking to expunge trial court observations in excise case

New Delhi, Mar 9 (PTI) The Enforcement Directorate has approached the Delhi High Court to expunge observations made by a trial court on its money laundering investigation against former chief minister Arvind Kejriwal and others linked to the CBI's excise policy case.

The Enforcement Directorate (ED) said the February 27 order was a "clear case of judicial overreach" because the court neither examined the agency's evidence nor heard it while passing strictures against it.

The Central Bureau of Investigation (CBI) chargesheet relates to alleged irregularities in the 2021 Delhi excise policy introduced by the then Aam Aadmi Party (AAP) government. The CBI and the ED investigated the case independently.

"It is trite law that a court cannot overlook the basic and vitally essential tenet of the Rule of Law that no one should be condemned unheard, and that when there is no relevance to the subject matter of adjudication, it is certainly not desirable for courts to make comments or observations reflecting on the bona fides or credibility of any person or authority," the ED said in its petition filed on March 7.

The petition is listed for hearing before Justice Swarana Kanta Sharma on Tuesday.

PTI accessed the over 960-page petition in which the anti-money laundering agency said that if the trial court's observations stand, it will cause "irreparable injury" to the agency in discharging its statutory mandate.

The court of Special Judge Jitendra Singh made several observations regarding the PMLA and ED probe. The order specifically mentioned that the Supreme Court held in the 2022 Vijay Madanlal Choudhary case that once the foundational edifice of the predicate offence (CBI case) crumbles, the superstructure of the ED case must necessarily fall.

The ED, in its petition, pointed to several paragraphs of the order, stating that the court's observations against it were "adverse, sweeping and unwarranted" because the agency was not party to the deliberations and only the merits of the CBI probe were under consideration.

If such sweeping, unguided and bald observations, which have been passed behind the back of the ED based on pure conjectures, without anchoring itself on any material or evidence gathered by the ED, are permitted to stand, grave and irreparable prejudice would be caused to the public at large as well as the petitioner (ED), the petition said.

The ED said it was not party to the CBI proceedings in any capacity and was not allowed to be heard before the adverse observations were recorded, thereby "flagrantly violating the fundamental principles of natural justice and judicial decorum".

Therefore, the paragraphs concerning the investigation, conducted independently by the agency under the Prevention of Money Laundering Act (PMLA), deserve to be "expunged" and "deleted" as they amount to a clear case of judicial overreach, it said.

It noted that the trial court's observations "violate" all settled canons of considerations of justice, fair play and restraint by making observations against an authority (ED) who was not before the court.

The ED also mentioned various judgements given by the Supreme Court, underlining that the PMLA case can proceed independently of the trial in the scheduled offence and that money laundering was an independent crime.

The ED filed a total of nine chargesheets in the case against 40 accused, including Kejriwal, former deputy chief minister Manish Sisodia and others it arrested. PTI NES ADS DIV DIV