Delhi excise policy case: Court denies interim bail to BRS leader Kavitha

The Fact News Service

New Delhi, April 8

The Rouse Avenue court in the national captial on Monday dismissed the detailed interim bail application of Bharat Rashtra Samithi (BRS) MLC K Kavitha. She had sought interim bail on the grounds that her minor son had school examinations.

She is in judicial custody after the ED remand in the excise policy case. Special judge Kaveri Baweja had dismissed the interim bail application this morning.

A detailed bail order has yet to be uploaded.

The bail application of the BRS leader was opposed by the counsel for ED, who argued that Kavitha destroyed the evidence in her phone and that witnesses were forced to retract their statements.

Kavitha had filed an application seeking interim bail given the examination of her school going son. Advocates Nitesh Rana and Deepak Nagar also appeared for her.

At the outset, it was argued that being a woman, the rigours of the twin condition under Section 45 of the Prevention of Money Laundering Act (PMLA) do not apply to K Kavitha.

Senior advocate Abhishek Manu Singhvi had submitted that when a person falls under exceptions, the twin condition does not apply to that person.

As per Section 45 of PMLA women fall under the category of exceptions for granting bail by the court, Singhvi said.

Singhvi further submitted that there is no flight risk when the passport is submitted.

Senior advocate Singhvi submitted that the woman who is accused in this case has a minor child whose exams are this month.

“Her child is 16. It is the question of moral emotional support in this situation. There is an exam anxiety. PM gives a lecture on radio on how to cope with exam anxiety,” Singhvi argued.

“The perspective of the mother can not be substituted by the father or other family member. The father is the one who is managing the legal battle in Delhi and the child is in Telangana,” the senior advocate argued.

The bail application was opposed by advocate Zoheb Hossain, the special counsel for ED.

He submitted that the proviso related to bail under Section 45 of the PMLA should be exercised judiciously. Exceptions are not for women who are leading politicians in the state.

He further submitted that Kavitha was a beneficiary in Indo Spirit and Arun Ramchandra Pillai was his proxy in the company.

“I am not relying on the statement only. I have WhatsApp chat and other evidence,” Hossain asserted.

The court asked to show the material. The investigation officer showed some documents to the court.

Hossain further argued that Kavitha was involved in the destruction of evidence and influencing witnesses.

Special counsel Zoheb Hossain said that he had the case diary and FSL report, which shows how this was done.

The special counsel said that she deleted evidence from her phone, deleted data and content on the date she was issued a summons and that no data was found in the App like FaceTime. The BRS leader had deleted evidence from her mobile, Hossain submitted.

ED’s Counsel submitted that on March 11, when Kavitha was confronted, she evaded the question. Hossain submitted that on March 11, she said she would produce the phone on the next date.

Though she produced nine mobile phones, these phones were formatted. On being asked about this, she was evasive. The forensic report shows mobile phones were formatted after March 11.

On March 14 and 15, she deleted data from four mobile phones. This phone was tampered with by her. These phones were completely wiped out and it was revealed after an offer to provide a copy of the phones.

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The ED’s counsel argued that it was not the first time that this had happened and that over 100 devices have either disappeared or wiped out. The ED’s counsel argued Hossain submitted that this phone was formatted before being handed over and this, he said shows the destruction of evidence, ED’s Counsel further submitted that Arun Ram Chandra Pillai was the proxy of K Kavitha in Indo Spirit.

Hossain submitted that the ED was at the stage of making a breakthrough and any interim relief to the BRS leader would derail the probe as she is very influential and could influence the people.
Hossain said that witnesses have been called upon and forced to retract their statements. And there are some statements which have been retracted. Her CA has also retracted the statement, the advocate said.

The ED counsel referred to the November 11, 2022. statement of Arun Pillai who was arrested on December 6, 2022.

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Though existing law prohibits former Haryana Chief Minister Om Prakash Chautala and his elder son Ajay Singh Chautala from contesting any elections till July, 2027 and February 2028 respectively, the Election Commission of India can reduce the ineligibility period or even waive it off, says Punjab and Haryana High court advocate and electoral expert Hemant Kumar.

“Chautalas were convicted in J.B.T recruitment scam. They were found guilty under Prevention of Corruption Act, 1988 and IPC in a teacher recruitment scam. They were sentenced to jail from January 2013, after which OP Chautala was released prematurely in July 2021 and Ajay Chautala in February 2022 after serving the sentence,” stated HC Advocate.

Kumar, while commenting on the current on legalities of electoral process, said that while law allowed a person in jail to contest elections they were not allowed to vote. According to Kumar in the year 2023, a three-judge bench of the Supreme Court comprising Chief Justice of India (CJI) D.Y. Chandrachud, Justice P.S.Narasimha and Justice J.B. Pardiwala, refused to hear and consider the PIL which challenged the existing section 62(5) of the Representation of the People Act (RP Act) 1951, according to which prisoners in jail/prison (Prisoners) and persons sent to lawful police custody cannot vote in elections. It was first in January 1983, a two judge bench of the Supreme Court and then in July 1997, a three judge bench of the Supreme Court had invoked the above Section 62 of the Representation of the People Act, 1951 was declared legally valid.

“In our country the right to vote in elections is not a constitutional fundamental right but is a legal right on which electoral law is made by the Parliament. According to the currently applicable legal provisions, not only the person who has been declared guilty (criminal) in a case by the court after a trial (legal trial process) and has been sentenced to imprisonment (jail) but also the accused person (accused) who has been sentenced by the court has no right to vote. A person who has been sent to police custody (remand) or judicial custody (jail) also does not have the right to vote in elections. Such legal restriction of not being able to vote does not apply to a person who has been subjected to preventive detention under any appropriate law. However every accused person can contest as a candidate in those elections, no matter how serious an FIR/FIR has been registered against him or whether a charge sheet has been submitted against him in the court or even if of course a trial is going on against him in the court”, says Kumar.

“In July 2013, the Supreme Court, while upholding the decision given by the Patna High Court in the year 2004, ruled that when a person is in jail or police custody as an undertrial, the right to vote is denied he is also ineligible to contest the elections, but then the Manmohan Singh led UPA-2 government in power at the Center got an amendment law passed by the Parliament and the overturned the decision. Now eligibility to contest elections depends on Section 8 of the Representation of the People Act, 1951, that is, under which law and for how many years, he has been declared guilty by the court and the punishment (fine and imprisonment) has been given,” he added.