EXPLAINED: ED Arrests Hemant Soren, Is Delhi CM Arvind Kejriwal Next After Skipping Fifth Summon?

New Delhi: Days after outgoing Jharkhand Chief Minister Hemant Soren's arrest, the focus has now turned towards Delhi Chief Minister Arvind Kejriwal, who, like his former counterpart, has skipped several summons issued by the Enforcement Directorate in connection with the alleged liquor scam. As Kejriwal skipped the fifth summon today to protest against Chandigarh's poll rigging today, can the ED arrest him for skipping summons after summons?

In this piece, we will explore the law that governs the issuing of summons and arrests, and several guidelines issued by several courts, including the Supreme Court, in this regard.

Two CMs, Similar Drama

Often terming the summons as illegal, Kejriwal has presented several weird reasons for not honouring them. From going for Vipasana to selecting Rajya Sabha candidates to election campaigning, the AAP chief has given enough excuses to skip four summons issued on earlier occasions. The same drama unfolded before Soren's arrest with the erstwhile CM disappearing for a brief period after dodging ED officers ahead of the ninth summon. Like Kejriwal, Soren had skipped previous summonses, calling them politically motivated.

Why The Opposition Argument of Political Vendetta Holds No Ground

As the Opposition cries foul over BJP allegedly targeting Opposition Chief Ministers, any case of politicisation falls flat as in both cases. In both scams, the local administration played a major role in bringing the scams to light. In Soren's case, the original FIR was filed by the Sahibganj district police against JMM MLA Pankaj Mishra. Subsequently, the Jharkhand High Court ordered CBI to look into the illegal mining case. In the land scam case, for which Soren is arrested, the FIR was originally filed by a Ranchi Municipal Corporation clerk back in 2022.

Similarly, in Kejriwal's case, the now-scrapped excise policy case was brought to light by Delhi Chief Secretary Naresh Kumar, who alleged that the old excise regime gave "undue benefits" to a handful of retailers, in a scathing report. According to the Constitution, in Union Territories, with partial statehood like Delhi, the Chief Secretaries are handpicked by the Chief Ministers.

The PMLA Act And Its Main Provision That Empowers ED To Arrest Accused In Case They Keep Skipping Summons

The main law governing the issuance of summons and that of arrest in connection with the ED falls under the Prevention of Money Laundering Act, 2002 (PMLA). Under Section 50 of this Act, the authorities have the power to issue summons and the Director assumes the same power as that of a civil court. In a way, the statutory body assumes the role of the judiciary in this case. Furthermore, this Section gives power to the officials in the rank of the Director, Additional Director, Joint Director, Deputy Director or Assistant Director to demand attendance of a person for the purpose of collecting evidence and asking the accused to provide any documents. These proceedings assume the importance of a judicial proceeding under several provisions of the IPC.  However, Section 50 doesn't empower the ED officials to arrest the accused as the Opposition is often claiming.

In the Ashish Mittal v. ED case, both the Delhi High Court and the Supreme Court has ruled that the central probing agency can arrest a person if he doesn't turn up after repeated summons under Section 19 of the PMLA. In case, the accused keeps on skipping summons, the ED can go ahead with the arrest if it has sufficient material to ascertain that the person was involved or seemed to have benefitted from the crime. 

Now, the question arises can the ED arrest Kejriwal if he chooses to skip the 5th summon again? In the next section, we take a deeper look at what the ED has said about Kejriwal's involvement in the new excise policy scam.

Does ED Have Sufficient Material To Arrest Kejriwal In Case He Keeps Skipping Summons?

The ED, in its chargesheet, has claimed that the proceeds of crime to the tune of Rs 45 crore was used to fund Kejriwal's Goa campaign. In fact, Kejriwal has been named on several occasions in the ED chargesheet. The chargesheet claims that the arrested accused and a beneficiary of the scam Sameer Mahendru, owner of Indospirits was told to cooperate with another arrested accused and key Kejriwal aide, AAP communication’s in charge Vijay Nair by the Delhi CM. Quoting a facetime conversation between Mahendru and Kejriwal, ED claimed that the later said, “Vijay is his boy and that Sameer should trust him and carry on with him."

In another chargesheet, the ED has also quoted DANICS officer and arrested accused Manish Sisodia's secretary C Arvind, who stated that the plan to benefit certain wholesalers was planned at Kejriwal's residence. Kejriwal's deputy Sisodia was leading the excise department and it was under his watch, the now-defunct new excise policy was implemented in haste without paying heed to the expert committee report. The Sisodia-led Group of Ministers report subsequently got clearance from the Delhi cabinet, headed by CM Kejriwal.

The discrepancies in the 2022 Excise Policy, which was later scrapped by the Kejriwal government, had caused a humongous loss of Rs 2,631 crore to the public exchequer, as per ED's application filed before a court. In fact, admitting to the revenue loss, the Kejriwal government, in a cabinet note, stated that in Q1 of the 2022-23 fiscal, the revenue earned by the government was Rs 1,485 crore, which was 37.51% below the budget estimates of Rs 2,375 crore for the same quarter. The cabinet note further goes on to state how the license holders had made a windfall gain. Even as the sale of whiskey had increased by a whopping 60% and sale of wine increased by nearly 90% as compared to the previous fiscal, the same didn't translate into the increase in revenue for the government. 

As it turns out, the ED has enough evidence to take Delhi CM in custody for further questioning on grounds of cooperation, should he choose to skip the summon again. Or, the ED can issue another summon. Only, time will tell.

Procedure of Arrest

In the landmark Pankaj Bansal v. Union of India case, the Supreme Court state that the grounds for arrest has to be communicated to the accused in writing, not orally, under Section 19 (1) of the PMLA Act. Failing which, the ED will be in violation of the Article 22 (1) of the Constitution, a fundamental right that requires a law enforcement agency to declare the grounds for arrest to the accused.