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2023 (7) TMI 1311
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....tered by CBI, ACB, New Delhi against Sh. Manish Sisodia, Deputy Chief Minister, GNCTD of Delhi and others under Section 120B r/w 477A of Indian Penal Code, 1860 and Section 7 of Prevention of Corruption Act, 1988 for irregularities in framing and implementation of the excise policy of GNCTD of Delhi for the year 2021-22. 6. The FIR is registered on the direction of competent authority conveyed by Shri Praveen Kumar Rai, Director, MHA, Govt. Of India vide OM No. 14035/06/2022-Delhi-1 dated 22/07/22 for enquiry into the matter of irregularities in framing and implementation of the excise policy of GNCTD of Delhi for the year 2021-22. Vide said OM Shri Praveen Kumar Rai has also forwarded DO letter no. SLG/Conf./2022/75 dated 20/07/2022 of Shri Vinai Kumar Saxena, Hon'ble Lt. Governor, GNCTD of Delhi alleging irregularities in framing and implementation of the excise policy of GNCTD of Delhi for the year 2021-22. 7. The OM discloses that Shri Manish Sisodia, Deputy Chief Minister, GNCTD of Delhi, Shri Arva Gopi Krishna, the then Commissioner (Excise), GNCTD of Delhi and Shri Pankaj Bhatnagar, Assistant Commissioner (Exicse), GNCTD of Delhi were instrumental in recomm....
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....d 25.11.2022 with respect to their investigation done in the above-mentioned FIR no RC0032022A0053 dated 17.08.2022 in the Special Court, New Delhi. The cognizance of the same has been taken vide order dated 15.12.2022. 10. The gist of the CBI chargesheet is as under: a. The CBI has filed chargesheet in respect of the subject FIR on 24.11.2022. In the chargesheet filed by CBI. 6 accused persons have been covered- Sh. Sameer Mahandru, Sh. Vijay Nair. Sh. Abhishek Boinpally. Sh Gautam Mootha, Sh Arun Pillai and Excise officials Sh Kuldeep Singh. Deputy Commissioner, Excise. Sh Narinder Singh, Asst Commissioner. Excise. b. The CBI has found that, a conspiracy was hatched by Sh Vijay Nair along with Sh Abhishek Boinpally. Sh Dinesh Arora and others to get the undue benefits by circumventing the provisions of the policy. That, Sh Dinesh Arora is a close associate of Sh Vijay Nair and he participated in multiple meetings took place amongst Sh Vijay Nair. Sh Abhishek Boinpally and others to discuss and plan the conspiracy. In one of these meetings that took place in Hyderabad Sh Vijay Nair told Sh Dinesh is to coordinate with Sh Abhishek Boinpally to transfer Rs....
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.... entities Khao Gali, Indospirit Marketing Pvt Ltd. In violation of the Excise Policy 2021-22. That, the excise officials granted L1 license to Indospirits without properly processing the file and collecting the requisite documents as well as without properly addressing the complaint against M/s Indospirits in lieu of Rs 30 lakh bribe taken by Sh Narender Singh from. Sh Sameer Mahandru and on the influence exerted by Sh Vijay Nair and Sh Dinesh Arora. h. That, Sh Abhishek Boinpally had threatened Sh Jagbir Sidhu of Diageo withdraw various complaints petitions filed anonymously/pseudonymously who he believed to have been filed by Sh Aman Dhall of Brindco, who was the wholesaler for Diageo else, Sh Abhishek Boinpally would blacklist Diageo from the 9 retail zones he was managing or was a part of. And that, he will get the wholesale license of his wholesale distributor M/s Brindco Sales and they will get it cancelled from the Excise Department. i. That, the part of the profits accrued from Indospirits have been transferred to Sh Arun Pillai, which was basically a recovery of the kickback given in advance. That, part of that sum has reached Sh Abhishek Boinpally throug....
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....No. 02/2023 dated 24.01.2023. The investigation done by ED has revealed as under: a. PMLA investigation done so far has revealed that, the Delhi Excise Policy, 2021-22 was created by the top leaders of the AAP to continuously generate and channel illegal funds to themselves. The extent of involvement and abatement done by the leaders of the AAP of the criminal activities undertaken by the accused further substantiates their design and scheme of the scam. The policy was formed with deliberate loopholes to facilitate illegal and criminal activities. b. The policy promoted cartel formations through back door, awarded exorbitant wholesale profit margin @12% and huge retail profit margin of 185% and incentivized other illegal activities on account of criminal conspiracy by the top leaders of AAP to extract kickbacks from the businesses. c. As disclosed by C. Arvind, DANICS, Secretary to Manish Sisodia, in his statement dated 07.12.2022, the draft GoM report was given to him in the mid of March 2021 when Sh. C Arvind was called by Manish Sisodia to the residence of Arvind Kejriwal, CM (where Satyender Jain was also present). The conspiracy of the GoM to give wh....
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....olicy scam, by the political leaders of the AAP. g. Sh Vijay Nair, is Incharge of Media and Communication for the AAP, had no role in the Delhi Govt. in fact acted as a broker/liaison/middlemen on behalf of the top leaders of the AAP for getting bribes/kickbacks from various stakeholders in the Delhi Liquor business in exchange of favourable outcomes (policy changes) in the Excise Policy of 2021-22, which was being drafted at that time. He even threatened the stakeholders who were not agreeing to his demands that he changes suitable/desired by them may not go through entirely if they do not concede to his demands. h. Sh Vijay Nair, in connivance with Sh Dinesh Arora and through him with Sh Amit Arora, has also arm twisted a wholesaler to surrender the L1 license and then coerced the manufacturers surrendered through that license to choose the wholesalers of his choice and favour to direct the profit margins to his co-conspirators, so that there was complete control on the kickbacks to be extracted. i. Sh Vijay Nair, on behalf of leaders of AAP has received kickbacks to the tune of Rs. 100 Cr from a group, for convenience, we may call it the South Group (a....
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....o grant the license on priority. m. Pernod Ricard, is one of the accused in the instant case, which through Sh Benoy Babu and others, in conspiracy with the super cartel and Sh Vijay Nair gave their wholesale business to Indo Spirits. The Excise Policy 2021-22 required the manufacturers to register their brands at the Lowest EDP net of all discount/commission/rebate of any nature whatsoever, however, Pernod Ricard by way of conspiracy has got their price fixed without deducting the discounts/rebates they offer thus getting a much higher price fixed for their brands and thus earning a huge additional profit which was ineligible to them and should have been passed to the consumers as lower MRP. If the manufacturer had registered the brands at actually lowest EDP, the capacity of the manufacturers to give out credit notes would have been limited. However, Pernod Ricard paid Rs. 131.9 Crores credit notes to the retailers via the wholesalers, where the benefit of discounts was shifted to the retailers instead of the actual consumer at large. n. That, in order to create a device for continuous payment of kickbacks to Sh Vijay Nair, an unheard of margin of 12% was provid....
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....s to businesses which are minting money with MRP being 3 times of the cost and having profit margin of 185% approx. The fact that the credit notes were an eyewash to transfer money illegally to pay kickbacks is evident from the fact that the ostensible reason of volume based credit notes was bogus and credit notes have been passed in an inconsistent manner considering the sale volume. For example, Pernod Ricard has not given any credit notes to M/s Adharv Enterprises (not a favoured L7) against the volume of 19,080 cases purchased in the months of Dec, 2021 Jan, 22 and Feb 22. However, Pernod Ricard has given Rs. 61.01 lakhs as credit notes to M/s Organomix Ecosystems Pvt. Ltd. (which is part of the South Group cartel) who has purchased 17,644 cases during the said 3 months." 3. The role of the Petitioner has been discussed in detail in the complaint filed by ED and is not been discussed here for the sake of brevity. B. Submissions on behalf of the Petitioner 4. Sh. Vikram Chaudhary, learned senior advocate along with Sh. Sumer Singh Boparai submitted that there is no proof of identification of proceeds of crime. It has been submitted that the allegations against petitione....
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....d been receiving advances of big loans which they used to return time to time. It has been submitted that the loan/investment of Rs. 6.53 crores was advanced by the petitioner to Mr. Gautam Mootha between November 2020 to November 2021 and thus the period of loan/investment proceeds are alleged to be the generation of POC. It has further been submitted that the payment of Rs. 3.85 Crores made by Mr. Gautam Mootha to the petitioner is the partial repayment of loan/investment. The source from which the repayment was made by Mr. Gautam Mootha is irrelevant as far as the petitioner is concerned. It has been submitted in the absence of any knowledge the use of Rs. 3.85 crores to purchase shares of Zeus Networking private limited cannot be called projecting tainted money as untainted. 8. Learned senior counsel submitted that allegation of the ED regarding investment in ZNPL is also totally misconceived. It has been submitted that the CDG Broadcasting was the holding company of ZNPL. Petitioner desired to invest and purchase ZNPL and payments for purchasing ZNPL were made to CDG Broadcasting to the tune of Rs. 10 lacs and 60 lacs on 06.03.2021 and 17.03.2021. It has been submitted that....
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....dicate offence and has no concerned with the PMLA case. It was submitted that the petitioner started managing the operation of the brands in Delhi on behalf of Sarath Reddy only in March after 2 out of 5 zones were surrendered by Mr. Sarath Reddy. Learned senior counsel submitted that the petitioner was only involved in the operations of the above said vends and drew no salary/monetary benefits. 10. Learned senior counsel submitted that the petitioner joined the operation of the firms after the two vends were shut, which is evident from the statement of Mrs. E. Chandan Reddy (Wife of Sarath Reddy) and Mr. Sarath Reddy. The Statement of Tanmay Vashisth (employees of Pernod Ricard) shows that the petitioner was involved in dealing with the operational issues of the vends only. In regard to the threats to withdraw complaints against Indo Spirits Group for cartelization, learned senior counsel submitted that the allegation is solely based on the statement of Jagbir Sidhu (DIAGEO) and Aman Dhall (BRINDCO) and no independent investigation has been carried out into the same by ED and reliance is placed on the oral statement. It has further been submitted stated that neither Mr. Dhall n....
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....up through Dinesh Arora. 16. Sh. Zoheb Hossain submitted that Dinesh Arora in his statement dated 01.10.2022 stated that in a meeting that took place in June 2021 in ITC Kohinoor Hyderabad, Sh. Vijay Nair had told him to coordinate with the petitioner Abhishek Boinpally for bringing funds to the tune of Rs. 20-30 crores from Hyderabad to Delhi. 17. Sh. Zoheb Hossain submitted that this meeting has been confirmed by the hotel records which has duly been placed on the records. It has further been submitted that against this advance kickback it was also understood that once the recovery of the kickback is done, then the 6% collected will be divided between Sh. Vijay Nair and Sh. Abhishek Boinpally as this arrangement was not only for one year but also for the remaining of the five year terms of AAP in Delhi Government. Sh. Zoheb Hossain submitted that Dinesh Arora in his statement has revealed that petitioner Abhishek Boinpally used to give him a note with number and phone number for the Hawala transaction on call and thereafter Dinesh Arora used to give the same to other persons (Rajesh Joshi and Sudhir) to pick up the cash. Reliance has also been placed upon the telephone call....
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....able to get L1 license from Delhi Excise Policy as there were some complaints against Indo Spirits group for cartelization and other violations. In this regard a writ petition was filed in the Hon'ble Supreme Court in the name of Varun Chaudhary highlighting the violation by Indo Spirits Group (Indo Spirit Marketing private limited) making the Government of NCT a respondent. Sh. Zoheb Hossain submitted that in fact the petitioner threatened Sh. Jagbir Sadhu of DIAGEO to withdraw the complaint otherwise it could adversely affect the business between DIAGEO and Brindco i.e. another wholesaler. This fact has been confirmed by Sh. Jagbir Sidhu in his statement dated 01.11.2022 as well by Aman Dhall in his statement dated 29.10.2022. 22. Sh. Zoheb Hossain further submitted that Abhishek Boinpally has not only assisted in generation of proceeds of crime but is also a beneficiary of the proceeds of crimes generated from Indo Spirit. It has been submitted that out of total profit of Rs. 192.8 crore made by Indo Spirits POC of amount of Rs. 3.85 crore has been received in the account of Abhishek Boinpally through multiple layers. Sh. Zoheb Hossain further submitted that petitioner has no....
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....r is actually involved in any process or activity connected with the proceeds of crime including concealment, possession, acquisition or use and projecting or claiming] it as untainted property shall be guilty of offence of money-laundering. Explanation. -For the removal of doubts, it is hereby clarified that,- (i) a person shall be guilty of offence of money-laundering if such person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with proceeds of crime, namely:- a. concealment; or b. possession; or c. acquisition; or d. use; or e. projecting as untainted property; or f. claiming as untainted property, in any manner whatsoever, (ii) the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatso....
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....nventions. This doubt has been ably responded and elucidated by India to the international body by referring to the jurisprudence as evolved in India to interpret the word "and" as "or" in the context of the legislative intent - to reckon any (every) process or activity connected with the proceeds of crime constituting offence of money-laundering. To buttress the stand taken by India before the FATF, reliance has been justly placed on reported decisions of this Court amongst other Sanjay Dutt, which had occasion to deal with the expression "arms and ammunition" occurring in Section 5 of the TADA Act. The Court noted that if it is to be read conjunctively because of word "and", the object of prohibiting unauthorised possession of the forbidden arms and ammunition would be easily frustrated by the simple device of one person carrying the forbidden arms and his accomplice carrying its ammunition so that neither is covered under Section 5 when any one of them carrying more would be so liable. The principle underlying this analysis by the Constitution Bench must apply proprio vigore to the interpretation of Section 3 of the 2002 Act. To the same end, this Court in the case of Ishwar Sin....
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....t this stage is not required to weigh the evidence meticulously. The court is only required to arrive at a finding on the basis of broad probabilities. It is also a settled proposition that the court is not required to hold a mini trial at this stage and is required to examine the case on the basis of broad probabilities. It is also to be kept in mind that while exercising the jurisdiction under Section 45 of PMLA, the court is required to take into consideration the limitations prescribed under Section 439 Cr.P.C. 28. In regard to the limitation under Section 439 Cr.P.C. in Kalyan Chandra Sarkar vs Rajesh Ranjhan (2004) 7 SCC 528 it has been held as under: "The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order ....
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....d projecting or claiming it as untainted property shall be guilty of offence of money laundering. Therefore, it is not necessary to attribute section 3 of the PMLA that the alleged person must have acquired or in possession of the proceeds of the crime. If a person has actually been involved in any process or activity connected with the proceeds of crime, it would be sufficient to prosecute him under Section 3 of PMLA. The argument that the proceeds of crime have not been received or the proceeds of crime has not been recovered and therefore section 3 of the PMLA will not come into operation is totally fallacious and is liable to be rejected. It is necessary to keep in mind that such crimes are committed in a deep conspiracy and under the dark cover. An act may not be an offence at all if it is done in relation to any process or activity not connected with the proceeds of crime, but if such an act is done in relation to any process or activity connected with the proceeds of crime it will certainly be an offence under Section 3 of PMLA. 32. The present case is very peculiar in nature and may not have any parallel factual matrix. In brief, the allegations in the predicate offence ....
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....ffence. The defence, during the course of their arguments, have repeatedly stated that the ED has cooked up the case merely on the basis of whims and fancies and there are contradictions in the testimonies of the witnesses. The defence has assailed the testimony of approver Dinesh Arora and has submitted that Dinesh Arora has made the statement under the influence of ED and to protect himself. It is also the case of the defence that the public servants who are under the direct control of Hon'ble LG, who is the complainant in the present case, have made their statements only to save their skin. 35. This court is fully conscious of the fact that personal liberty is a sacrosanct right and pre-trial detention cannot be taken as a punitive measure. However such right has to be balanced with the right of the society at large. This court is also conscious of the fact that though the statements recorded under Section 50 PMLA are admissible in evidence but their evidentiary value has to be weighed at the time of trial. 36. The present case arises out of an alleged conspiracy wherein the government framed an excise policy with a malafide intention to recoup the kickbacks received i....
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....t be detailed in such a manner that it may prejudice the trial. 39. The issue to be examined is whether the petitioner has been able to fulfill the twin conditions as laid down under Section 45 of the PMLA. It is pertinent to mention here that the petitioner himself in his statement dated 17.09.2022 has admitted that he was going to run the retail zones for Sharad Chander Reddy. The petitioner has also stated that he had met Vijay Nair through Arun Pillai in or around July 2021. The petitioner has also further stated that he was running 3 retail zones of Sri Avantika, Organomixx and Trident. The petitioner in his statement dated 08.11.2022 has also admitted to have attended a meeting in May 2021 at Gauri Apartments alongwith Vijay Nair, Arun Pillai and Butchi Babu. It has been stated that the meeting was coordinated by Arun Pillai. In the statement, the petitioner has also admitted that he also attended the meeting at ITC Kohinoor alongwith Arun Pillai and Butchi Babu where discussion held regarding forming a partnership in retail zones. 40. Perusal of the statement dated 08.11.2022 would indicate that the petitioner was interacting with all the other accused persons and was ....
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....h was attended by Vijay Nair, Dinesh Arora, Arun Pillai, Arjun Pandey, petitioner Abhishek Boinpally and Chandan Reddy. It is also relevant to mention here that Mohit Gupta in his statement dated 14.12.2022 had stated who was regional sales manager in Pernod Ricard stated that he used to interact with petitioner for the operation issue for three zones run by the petitioner. Similarly Tanmay Vashith another senior officer of Pernod Ricard stated that he used to interact with the petitioner and seek his help for resolving issued and streamlining things within the zones. 43. It is also relevant to mention here that Jagbir Singh Sidhu who was Director, Corporate Relation, Diageo India in his statement under Section 50 PMLA recorded on 01.11.2022 has stated that he had met petitioner in July 2021 alongwith Sameer Mahandru and they both had come to seek Diageo's distributorship in Delhi. Sh. Sidhu stated that next time when he met the petitioner in November 2021 as Sameer had called him to discusss an anonymous complaint that had been made to the Excise Department and a writ petition that had been filed in the Supreme Court by someone. Sh. Sidhu stated that petitioner told him that he....
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....y manufacturer) of Rs. 4.35 crores from Indo Spirits to the 5 retail zones of Sarath Reddy exclusively. 46. It is also the case of the ED that huge outstanding amount of Rs. 60 crores of the 5 zones of Sarath Reddy was pending for payment by these 5 zones to Indo Spirits and therefore this amount of Rs. 4.35 crore and Rs. 60 crore are nothing but POC. It is that case of the ED that the recoupment of kickbacks are also money laundering. 47. The ED's case is that the petitioner knew it fully well that these retail zones were being used as part of the conspiracy to recoup the kickbacks and ensure that these retail zones run smoothly and are capable of being used as vehicles for recouping the proceedings of crime. 48. In view of the law which has been discussed above, it is settled position that the statement recorded under Section 50 of PMLA is admissible evidence though the evidentiary value of the same is to be seen after the trial. However, at this stage, the court cannot ignore the statements under Section 50 PMLA which the statue provides to have been recorded as part of the judicial proceedings. In such cases of conspiracy, the present case is of peculiar nature where E....