New Delhi, February 27 In the politically charged liquor policy case, the court on Friday ordered the release of former Delhi Chief Minister Arvind Kejriwal and 21 others, stating that the judicial task is not to achieve a convenient outcome or to endorse a dominant narrative, but to uphold the rule of law.
It highlighted that a procedure permitting prolonged or indefinite imprisonment based on a provisional and untested allegation risked "degenerating into a punitive process" and raised a "concern of considerable constitutional significance", where individual liberty was "imperilled" by invoking the Prevention of Money Laundering Act.
In the 598-page order, Special Judge Jitendra Singh said, "This court is increasingly confronted with a grave and recurring dilemma, wherein the liberty of an individual stands imperilled on account of prosecutions initiated under the PMLA, premised upon a presumption that the alleged amount constitutes 'proceeds of crime' arising out of a scheduled (predicate) offence."
He said the issue assumed heightened significance where an accused was arrested for the offence of money laundering and thereafter required to meet stringent conditions for bail, resulting in prolonged imprisonment even at the pre-trial stage.
"It has been observed that, in several cases, the Enforcement Directorate proceeds to file a prosecution complaint primarily to obviate the statutory consequence of default bail, without the investigation in the scheduled offence having attained finality," the judge said.
He said that often it was observed that the investigation into the predicate offence remained inconclusive, and even the final report was awaited.
"This court itself is a witness to a case where the proceedings relating to money laundering have reached the final stage of arguments on charge, whereas, in the predicate offence, the investigation is still underway to determine whether any offence has been committed at all," the judge said.
He observed it was noteworthy that the accused persons in the PMLA case had been in custody for a significant period.
"This anomalous situation gives rise to serious legal and constitutional concerns, as the continuation of proceedings under the PMLA remains contingent upon the very survival of the scheduled offence," Judge Singh said.
He said that despite the settled legal position that the offence of money laundering cannot independently subsist and requires the foundational edifice of a legally sustainable predicate offence, the prevailing practice revealed a disturbing inversion.
In such cases, coercive powers of arrest and prolonged custody were invoked even before the foundational facts relating to the scheduled offence were judicially tested, observed the judge.
He said, "This results in a situation where an individual is deprived of personal liberty on the strength of an allegation whose legal sustainability remains uncertain and contingent upon a future outcome in a parallel investigation."
Judge Singh underlined that a procedure permitting prolonged or indefinite incarceration based on a provisional and untested allegation was fraught with the risk of "degenerating into a punitive process" rather than being a regulatory or investigative one.
He said, "Liberty, once curtailed, cannot be meaningfully restored by a subsequent acquittal, nor can the passage of time compensate for the loss occasioned by unwarranted pre-trial detention."
Underlining that the objective of PMLA was undoubtedly legitimate and compelling, the judge mentioned that statutory power, however wide, could not eclipse constitutional safeguards.
"The exercise of such power must therefore be harmonised with the settled principle that arrest and prolonged incarceration are exceptions, and not the rule," he said.
The judge said there was a need to evolve a framework for striking a careful balance between the sovereign interest in the effective investigation of economic offences and the inviolable right of an individual to personal liberty.
"While provisional attachment of alleged proceeds of crime may be justified to preserve the subject matter of investigation, the coercive measure of arrest and the consequent application of onerous bail conditions cannot be permitted to operate mechanically in the absence of a crystallised and judicially cognisable predicate offence," he said.
Special Judge Singh underscored that the balance between the power of the investigating agency and the right to life and personal liberty was not a matter of "legislative grace", but a "constitutional command". Any failure to maintain this balance was likely to undermine both the rule of law and public confidence in the administration of criminal justice, he said.
The judge cited Martin Luther King Jr's quote that "injustice anywhere is a threat to justice everywhere" and the legal maxim that 'let justice be done though the heavens may fall', to underscore his point.
"These principles serve as a constant reminder that the judicial task is neither to secure a convenient outcome nor to endorse a dominant narrative, but to uphold the rule of law.
"It is only by remaining anchored to these ideals that the confidence of the citizen in the administration of justice is preserved. With that assurance, and conscious of this obligation, the file is directed to be consigned to the record room," he added.