New Delhi: Investigating agencies cannot "selectively pick" between material that speaks to an individual's innocence and that which may confirm guilt, the Supreme Court noted Tuesday as it heard Delhi Chief Minister Arvind Kejriwal's plea challenging his arrest by the Enforcement Directorate in the alleged liquor policy scam. The court asked the central agency - which had arrested Mr Kejriwal on March 21 - "If there is evidence that points towards guilt... and other that points towards innocence... can you selectively pick?"
"Is this an administrative task? You need to strike a balance between the two. You cannot exclude one aspect. You are depriving a person of their right to life," Justice Dipankar Datta, part of a two-judge bench that includes Justice Sanjiv Khanna, said firmly.
To this Additional Solicitor General SV Raju - appearing for the ED - pointed out that the agency's remit, at this time, was only to supply "reasons to believe" in the individual's guilt.
"Material must show person is guilty of offense... that is only material to be reflected in 'reasons to believe'... that is what Section 19 (of the Prevention of Money Laundering Act) contemplates. It isn't necessary for me to say in 'reasons to believe' I have considered all material," he explained.
And, in a potentially key moment today, the court also asked Mr Raju why it had taken the central agency two years to act against the "political executive" - referring to the Chief Minister and his party.
"...issue is that it has taken two years for this. It is not good for any investigating agency to say that it takes two years to unearth... now when will the trial start? From one stage to the other... from initiation of proceedings to arrest..." the court asked the ED.
The court also asked the ED why it was that "no question was asked about him (Mr Kejriwal)", prior to summons being issued and his arrest, during the course of its investigation. "... only issue is why did you not ask and why you were delaying?"
"If I start asking about Arvind Kejriwal at the outset... it would have been called 'malafide'..." Mr Raju responded, adding, "It takes time to understand... we can't put it overnight. Things have to be confirmed."
Earlier Mr Raju had recounted statements of approvers - i.e., ex-accused-turned-government witnesses - and declared "there is not a single statement exonerating" the AAP boss in this case. Mr Raju's emphatic statements were meant to counter arguments by Mr Kejriwal's camp - that the Chief Minister had not been named in initial witness records.
The AAP leader's camp had pointed out the agency had argued - even as late as March 16, five days before his arrest - that Mr Kejriwal had not been listed as an accused.
Appearing for Mr Kejriwal, senior advocate Abhishek Manu Singhvi also pointed out that "all evidence on which I am arrested is pre-2023... every material is as on July 2023..."
In the previous hearing the bench of Justice Sanjiv Khanna and Justice Dipankar Datta had indicated it could consider grant of temporary bail to the Aam Aadmi Party leader to allow him to campaign for the ongoing Lok Sabha election.
Delhi's seven Lok Sabha seats - all won by the Bharatiya Janata Party in the 2019 election - go to the polls on May 25. Acknowledging the time-consuming nature of these proceedings, the court had expressed its willingness to hear arguments from both sides for grant of bail.