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2023 (7) TMI 1312
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.... RC0032022A0053 dated 17.08.2022 was registered 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), ....
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....i.e., the CBI has filed a chargesheet dated 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....
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....ameer Mahandru formed a cartel through his 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 su....
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.... to the tune of Rs. 76.54 crores vide PAO 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 pres....
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....of his actions in relation to the Excise Policy 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 conv....
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....himself directed the Excise Commissioner to 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 Na....
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.... no apparent reason to give credit notes 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." 4. 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. SUBMISSIOINS ON BEHALF OF THE PETITIONER 5. Ms. Rebecca John, learned senior counsel along with Mr. Samundra Sarang, learned counsel for the petitioner-Vijay Nair has submitted that the entirety of the present case per....
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.... Distributors (Sameer Mahendru- Indospirits and Aman Dhall- Brindco); Public officials include members of AAP (represented by and through Vijay Nair)- who allegedly tweaked the policy itself; and Excise Department officials- who allegedly cleared licenses/participated in the execution of the conspiracy. 10. Learned senior counsel submitted that the story of the alleged conspiracy can be broken down in terms of the following :- a. Vijay Nair is an influential and powerful person in the Party, who lives in a minister's official accommodation. b. He met members of the South Group, who were interested in joining the liquor business in Delhi, when the news of the Delhi government's changes to the excise policy broke. c. He held meetings with several liquor industry players and eventually, brokered a deal whereby members of the South Group would enter into a partnership with Sameer Mahendru in Indospirits LLP. d. The Applicant manipulated and tweaked the Excise Policy in such a way that Indospirit's business would yield exponential profits and permit formations of cartels in the liquor business. e. The Applicant also ensured tha....
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....esh Joshi or Sudhir, to whom he claims to have transmitted the said paper and information. 17. Learned senior counsel for the petitioner further submitted that if Dinesh Arora only took down phone numbers or currency numbers, how could he know that INR 20 - 30 Crores were transferred to Delhi, since he does not state that the information given to him also included the amount of currency being transferred. 18. Learned senior counsel for the petitioner further submitted that Dinesh Arora made another loose statement that Abhishek "expressed his anger by saying that even after giving INR 90-100 Cr to Vijay Nair (for AAP / Govt.), that their shops are not opening on time." 19. Learned senior counsel for the petitioner further submitted that statement of this nature can be corroborated by the bribe giver, or the bribe taker - all of whom are accused persons in this case. It has been submitted that Abhishek Boinpally has not corroborated Dinesh Arora's statement with respect to any payments of bribes. It has been submitted that Rajesh Joshi and Sudhir, the so-called receivers of the bribe have also not corroborated his statement. 20. Learned senior counsel for the petitioner ....
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.... Union of India (2021 SCCOnline SC 1000), Vijay Agrawal Through Parokar v. Directorate of Enforcement (2023 SCCOnline Del 3176), Anil Vasantrao Deshmukh v. State of Maharashtra (2022 SCC Online Bom 3150). C. SUBMISSIONS ON BEHALF OF ENFORCEMNET DIRECOTORATE 28. Sh. Zoheb Hossain, learned special counsel for the E.D. submitted that petitioner- Vijay Nair is the is the kingpin connected with various branches of this entire liquor scam as he enjoyed a close relationship with the top political leaders of the party and works from the Camp office located at the Delhi CM's residence in Civil Lines. It has been submitted that petitioner is residing at Bunglow No. 2 Ata-ur-Rehman Lane, New Delhi, which is the official residence of Sh. Kailash Gehlot, Minister of Road and Transport and Revenue in Delhi Government. 29. Sh. Zoheb Hossain, learned special counsel for the E.D. submitted that the petitioner-Vijay Nair was one of the main decision-makers of the New Delhi Excise Policy and for this purpose, he had met various manufacturers, stakeholders, etc. other big investors having full authority on the subject. It has been submitted that petitioner-Vijay Nair received a kickback R....
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....d these funds in exchange of cash paid to M/s. Tarsame Mittal. 35. Sh. Zoheb Hossain, learned special counsel for the E.D. submitted that the petitioner-Vijay Nair, and the top leaders of AAP provided undue favors to Indo Spirits, and despite complaints against him, the license was granted to him. In this regard a reference has been made to the statement of Arava Gopi Krishna dated 26.12.2022, the then Excise Commissioner and Narinder Singh, Assistant Commissioner (IMFL) Delhi Excise dated 01.11.2022. 36. It has also been submitted that the petitioner- Vijay Nair arm twisted L1 licensees who denied to pay kickbacks as demanded by him and their operations were stopped arbitrarily, they were forced to surrender their L1 License in Delhi, which was then ultimately given to Shiv associates and Diwan Spirits where Dinesh Arora and other associates of Vijay Nair were partners (on paper or otherwise). It has been submitted that the profit of Rs.8.02 Cr. made by Shiv Associates and Diwan Spirits after the business was transferred to them was illegally accrued to them. In this regard a reference has been made to the statement of Ms. Deepa Kaur Chadha, Managing Director of Adie Broswon....
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.... 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 whatsoever." 265. To put it differently, the section as it stood prior to 2019 had itself incorporated the expression ....
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....prudence 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 Singh Bindra v. The State of U.P.165, Joint Director of Mines Safety and Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd., ....
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....inding 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. 42. 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 devoid of such reasons would suffer from non-application of mind. It is also necessary for the court grantin....
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....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. The scope and ingredients of offence of money laundering under Section 3 of PMLA has been defined in Vijay Madanlal Chaudhary (supra). 46. The present case is very peculiar in nature and may not have any parallel factual matrix. In brief, the allegation in the pre....
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....lea that in absence of any independent corroboration or material on record to substantiate such statements under Section 50 PMLA, the court on the basis of probability should record a finding that accused persons are not guilty of such offence. 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. 49. 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, the court has to strike a balance between the interest of an individual and the interest of the society at large. This court is also conscious of the fact that though the statements recorded un....
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.... be brushed aside. 52. This court at this stage cannot go into the probative value of the witnesses nor can it meticulously examine those facts. The involvement of the third parties in the formulating and drafting of the policy certainly points at mens rea. The jurisdiction of bail is a discretionary jurisdiction. But this discretion has to be exercised on the settled principles in a judicial manner. The court has to bring in its judicial experience to arrive at a conclusion, which should be rational and logical. It is pertinent to mention that the accused and complainant/prosecution are entitled to know the reasons on the basis of which their bail application has been decided, but at the same time such reason should not be detailed in such a manner that it may prejudice the trial. 53. The analysis of provisions of PMLA has already been made herein before and has thus not been repeated herein for the sake of gravity. However, it may be reiterated that the Court at the stage of bail is required to confine itself to the settled principles as contained in Section 439 of Cr. PC and Section 45 of PMLA. It may also be stated that Section 3 of the PMLA has a wider reach and anybody ....
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....lesalers as well. 57. Similarly, Amandeep Dhall in his statement dated 29.10.2022 who stated that on 26.03.2021, he got a call from Sh Vijay Nair, who introduced himself as heading the media relations for the Govt. of Delhi/AAP. He told that he would like to meet the leading suppliers-Indian as well as international companies on an urgent basis. It was stated that at the instance of Vijay Nair a meeting was organized at Oberoi Maidens in which the senior officers/officials of Pernod Ricard attended the meeting. 58. The reference can also be made on the statement of Arun Pillai dated 08.12.2022 wherein he specifically stated that the petitioner-Vijay Nair used to ask him about the Excise Policy and provisions of different states. He stated that though Vijay Nair used to ask him questions about these policies but mostly he was fixed on a certain format wherein there were to be private wholesale and retail. He also stated that petitioner Vijay Nair was also working with bigger players in Delhi Liquor business such as Aman Dhall of Brindco for the formulation of the policy. 59. Sh. Dinesh Arora also in his statement dated 01.10.2022 specifically stated that the Petitioner-Vija....
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....as instrumental at the stage of formulation of the policy itself with full authority and rights. He was further involved in meetings with representatives of big manufacturers i.e. M/S Pernod Ricard and M/S Diago etc., not only at the formulation stage of policy, but even in making these companies to appoint their wholesalers as per his choice. 64. The learned Trial Court further observed that Vijay Nair further undertook the task of collection and delivery of kickback amount. Learned court further inter alia held that Since, the kickback amount is stated to have been paid through hawala channels and in cash, the best possible evidence to this effect has been collected and brought on record by the investigating agency and nothing has been intentionally withheld or concealed from the court and the evidence brought on record includes some documentary evidence in the form of call detail records of the persons involved in transmission of the above kickback amount through the approver. 65. It was also observed that oral and documentary evidence suggests that he was also in frequent touch with various stakeholders of liquor business through different secured modes of communication, ....