A vacation judge while granting bail to AAP convener and Delhi Chief Minister Arvind Kejriwal, has said the  Enforcement Directorate (ED) failed to furnish direct evidence linking him to the proceeds of crime in the money laundering case against Kejriwal. Special Judge Niyay Bindu held that prima facie his guilt was yet to be established and the ED  is acting with bias against him.

"The court has to take a pause to consider this argument which is not a potable submission that investigation is an art because if it is so, then, any person can be implicated and kept behind the bars by artistically procuring the material against him after artistically avoiding/ withdrawing exculpatory material from the record. This very scenario constrains the court to draw an inference against the investigating agency that it is not acting without bias," vacation judge Niyay Bindu said in the 25 pages order.

"On the prima facie basis, the guilt of the accused is yet to be established. In respect of the condition that he shall not involve in the offence after his release on bail, it is already undertaken so by the applicant in his application. Moreover, if bail is granted, the same shall be conditional which shall put the applicant under an obligation in this regard," the judge said.

The special judge also questioned the ED's silence on Kejriwal's assertion that he was arrested in the money laundering case related to the alleged excise scam without having been named in the CBI FIR or the ECIR registered by the anti-money laundering agency. Enforcement Case Informaton Report (ECIR) is ED's version of an FIR.

"It may be possible that some persons known to the applicant are having involvement in an offence....But ED has failed to give any direct evidence against the applicant in respect of the proceeds of crime," the judge said. The order said the ED is silent on certain issues including the fact that Kejriwal was not named by the Central Bureau of Investigation (CBI) in its first information report (FIR) or in the Enforcement Case Information Report (ECIR) registered by the ED.

"...the ED has not shown anything on record that Vijay Nair was acting on the directions of the applicant (Kejirwal). It has also failed to establish that even if Vinod Chauhan has close relationship with Charanpreet, how come the same would establish the guilt of applicant even if the applicant is having acquaintance with both these co-accused," the order said.

"This is also noticeable that ED is silent about the facts as to how the proceeds of crime have been utilized in Assembly Elections in Goa by AAP as, admittedly, after about two years, the bigger portion of the alleged amount remains to be traced out," the judge said.

Kejriwal and his Aam Aadmi Party (AAP) has been accused of receiving kickbacks of Rs 100 crore from the South Group, a cartel of politicians, businessmen and others to rig the Delhi liquor policy in favour of licencees. The money was allegedly used in the 2022 Goa assembly poll campaign.  The judge said the ED has failed to clarify as to how much time it required to trace the complete money trail.

"Meaning thereby that until and unless this exercise of tracing out the remaining amount gets completed by ED, accused is supposed to remain behind bars that too without proper evidence against him. This is also not an acceptable submission of ED," the judge said.

The maxim of law that every person must be presumed innocent until proven guilty seems to be not applicable in the given case in respect of the present accused, she said.

The judge quoted Benjamin Franklin, one of the founding fathers of the US, to say "It is better that 100 guilty persons should escape than an innocent person should suffer".

"Unfortunately, the mental and physical agony of such person cannot be compensated in any manner whatsoever," she said. If an accused undergoes the atrocities of the system till his innocence is discovered, he would never be able to conceive that justice has actually been done to him, she said.