The Enforcement Directorate (ED) on Wednesday told the Supreme Court that the trial court judge was in a "hurry" and did not afford reasonable opportunity to the prosecutor to oppose Delhi Chief Minister Arvind Kejriwal's bail in a money laundering case linked to the alleged excise scam.

The ED said the June 20 order of the trial court granting regular bail to Kejriwal was "perverse" for non-compliance of prerequisite mandatory conditions under section 45 of the Prevention of Money Laundering Act (PMLA).

A vacation bench of Justice Manoj Misra and Justice SVN Bhatti took on record the Enforcement Directorate's reply affidavit filed in Kejriwal's plea challenging the interim stay granted by the Delhi High Court on June 21.

The bench also allowed Kejriwal to withdraw his plea after Senior Advocate Abhishek Singhvi, appearing for him, said he would file a substantial appeal as the High Court has pronounced the final order on June 25, staying the bail order.

The top court granted liberty to Kejriwal to file the substantial appeal. In its affidavit, the ED pointed out that section 45 of the PMLA envisages two mandatory conditions -- public prosecutor be given the opportunity to oppose bail and where the public prosecutor opposes the bail application, the court has to satisfy itself that there exist reasonable grounds for believing that accused is not guilty of such offence and that he is not likely to commit any offence while on bail.

"In the instance case, it is the specific ground raised by the prosecuting agency with specific and concise averments showing that the judge (of trial court) was in a hurry and did not afford a reasonable opportunity to the Additional Solicitor General to oppose the bail," it said while seeking to set aside the June 20 order.

The agency said money laundering being a specific and serious offence, the requirements under the PMLA override the provisions of the Code of Criminal Procedure (CrpC) in case of a grant or refusal of bail. It added the court considering an application for bail must record its satisfaction which should be based on a belief formed by the court that the accused "is not guilty of such offence". "This would necessarily mean an examination of record, investigation papers, complaint filed etc.

“Since it is only on perusal of such record that the court can reach a valid conclusion of the accused being not guilty of the offence of money laundering," it said. "If any of the above referred pre-requisite mandatory conditions are not complied with, the order would be in non-compliance of the mandate of section 45 of the Act and would also be perverse only on that ground. The perversity can also be on other grounds other than non-compliance with mandatory conditions," the agency said.

The ED said it is not a matter of mere contention of the prosecuting agency but an admitted fact that the trial court judge did not examine the record of the case despite specifically requested by the prosecuting agency.  "Admitted part in the impugned order itself prima facie but clearly reflects non-compliance with mandatory conditions stipulated under section 45 of the Act," it said.

The ED pointed out that during the bail hearing before the trial court on June 20, the Additional Solicitor General SV Raju was continuously asked to cut short his arguments by the trial court judge.  Even the impugned order reflects that the order has been passed hurriedly and admittedly without perusing the record of the case, the ED said. 

"It is true that the expression 'opportunity of hearing' may not be capable of being defined based upon any particular time limit since it would depend upon the facts of each case.