TaxTMI 
TaxTMI 
2023 (7) TMI 1381
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....Briefly the facts as stated by Enforcement Directorate are as under: "5. An FIR No. 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 Commis....
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.... been regularly giving undue pecuniary advantage to them. 9. The predicate agency 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 o....
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.... Nair, Sh Dinesh Arora, Sh Sameer Mahandru and the Excise officials. g. That. Sh Sameer 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 Pil....
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....have been conducted, statements have been recorded. ED has provisionally attached properties 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 b....
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....and carry on with him. These facts are relevant to mention so as to establish the abatement 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 coconspirators, so that there was complete control on the kickbacks to be extracted. i. Sh Vijay Nair, on behal....
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....fresh application in a different name of Indo Spirits, the Dy CM, Delhi, Sh Manish Sisodia 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. ....
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....edit notes to the retailers with whom they had no direct transactions with. Further, there was 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." B. SUBMISSIONS ON BEHALF OF THE PETITIONER 4. Mr. Mohit Mathur and Mr.Dayan Krishnan, learned senior advocates with Mr.Vivek Jain, learned counsel appearing on behalf of the Applicant Mr.Manish Sisodia has advanced lengthy arguments assailing the order of learned Special Ju....
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....the investigation done by the ED is also in violation of the judgment of this court in Prakash Industries Ltd. v. Union of India & Anr., 2023 SCC OnLine Del 336. It has been submitted that in this case it was inter alia held that the PMLA empowers the ED to investigate Section 3 offense only and its power to investigate and enquire stands confined to the offense of money laundering as defined in the Section. It has also been submitted that even for the offence under Section 120B IPC there must be material to show that the Applicant was involved in the conspiracy to deal in the alleged proceeds of crime. Learned senior counsels have submitted that the allegations made by the ED are absolutely vague and there are no reasonable grounds to believe that the Applicant would be found guilty of the offence of money laundering. 6. Learned senior counsels have submitted that at this stage the reliance on the statement under Section 50 PMLA cannot be placed in absence of any material corroboration. It has been submitted that though the statement recorded under Section 50 PMLA are admissible in nature but in the present case the statements given to the ED are hearsay evidence and suffers fr....
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....ged the issue at the relevant time. It has also been submitted that the Government of NCT of Delhi does not enjoy any control over the public servants and these public servants are wholly within the control of the Hon'ble LG, who is the complainant in the present case. It has been submitted that as these officers were admittedly involved in the drafting and framing of this policy and the fact that they are now distancing themselves from the same need to be treated with grave suspicion. Learned senior counsels have submitted that even the roles of these public officials are quite doubtful. 8. Learned senior counsels during the course of submissions invited the attention of the court to the improvement/contradiction made in the statement of C.Arvind recorded on 07.12.2022 and 13.03.2023. The attention has also been invited to the contradictions in the statement of C. Arvind given to different agencies i.e. CBI and Directorate of Enforcement. Learned senior counsels have submitted that in view of the contradiction in the statements of C.Arvind, his statement is liable to be rejected out rightly. 9. Learned senior counsels have submitted that the statements of approver and co....
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..... It has further been submitted that as per the knowledge of the Applicant Arun Pillai has already retracted his statement. In any case, there are no material to support the statement made by Arun Pillai. 12. Similarly, it has been submitted that Mr. Butchi Babu has made a vague remark that there was a political understanding between the Applicant, the CM of Delhi and Ms. K. Kavitha. Learned senior counsels have further submitted that the allegation relating to the merits of the framing of the excise policy are also baseless and in any case beyond the jurisdiction of the ED as it relates to the predicate offence. It has been submitted that the only relevant aspect to be investigated by the ED is the role of the applicant (if any) in any process or activity dealing with the alleged kickbacks being the proceeds of crime. It has further been submitted that the excise policy of the Government of NCT of Delhi is the collective responsibility of the Cabinet and the same was implemented after the same was drafted by Excise Department and approved by the planning, finance, and law department and was also duly approved by the Hon'ble LG of NCT of Delhi. 13. It has further been submitt....
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....lers was increased from Rs.5 lakhs to Rs.5 crores and further recovery of the charges incurred for local transport separately was done away with. It has further been submitted that wholesalers were required to maintain testing laboratories to adhere to the global best standards of testing. It has been submitted that Zone-Wise Auctions & Limitation of Number of Manufacturers were also policy decisions taken on rational and well-thought-out reasons like equitable distribution etc. 17. Learned senior counsels have submitted that in fact policy has been challenged by persons allegedly in conspiracy to frame the policy, reference has been made to the WP(C) 11319/2021 titled as Khao Gali Restaurants Pvt. Ltd. v. Commissioner, Excise, GNCTD and others and WP(C) 10189/2022 titled as Buddy (T-1D) Retail Pvt. Ltd. vs. GNCTD &Anr. It has been submitted that the fact that the alleged conspirators themselves challenged the policy completely belies the case of the ED. Learned senior counsels have further submitted that ED has made mountain out of the mole regarding alleged inconsistency between the draft dated 15.03.2021 and 18.03.2021. Learned senior counsels have submitted that the Applican....
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....ain their businesses where profit margin could go up to 70%. It has been submitted that in any case these opinions cannot be held binding upon the government. 20. Learned senior counsels have submitted that framing of the excise policy 2021-22 was transparent and was duly vetted by several departments viz. Finance, Planning and Law under the authority of Hon'ble LG of NCT of Delhi. It has been submitted that the changes in the policy were purely on the basis of valid policy considerations. Learned senior counsels have further submitted that the allegations of the ED that Vijay Nair is the "Representative of the Applicant" is not supported by any material except the statement record under Section 50 of PMLA. Learned senior counsels have further submitted that the statement in this regard of approver Dinesh Arora and co-accused Mr.Arun Pillai and Mr.Butchi Babu are vague and does not carry any weight. 21. It has been submitted that there is no material on record to show that Applicant Manish Sisodia was involved in or had any knowledge of any alleged kickback being paid through any person. Learned senior counsels have further submitted that allegation relating to grant of l....
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....itted that allegations in relation to the execution of an alleged MOU between the Applicant and associates of Amit Arora is baseless. It has been submitted that the MOU is unsigned, without any signature of Vivek Tyagi. It has been submitted that the said MOU relates to the earlier policy and the said alleged understanding remained implemented and has no connection or link with the Applicant. Learned senior counsels have further submitted that in this regard there are material contradictions in the statement of Amit Arora dated 27.03.2023. 26. Learned senior counsels have further submitted that the Applicant fulfills the triple test. The allegations of the ED regarding frequent change of phone and destruction is baseless. It has been submitted that there is nothing on record that the phones in question contain some material piece of evidence. It has been submitted that the Applicant being in a high position could not have left his own mobile phone lying around and must destroy them when he ceases to use them. Learned senior counsel further submitted that allegation of the ED regarding the destruction of the cabinet file dated 28.01.2021 is also based on the statement of certain ....
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.... serious as she suffers from an incurable neurodegenerative disorder namely Multiple Sclerosis. 31. Learned senior counsels have submitted that the settled position of law is that at the stage of bail, the court is expected to consider the question from the angle as to whether the Applicant was possessed of the requisite mens rea. Learned senior counsels have submitted that the court is not required to record a positive finding that the accused had not committed an offence under the PMLA. Learned senior counsels have submitted that in Vijay Madanlal Chaudhary (supra) it was inter alia held that the court ought to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before the commencement of trial. The duty of the Court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. Learned senior counsels have submitted that despite the twin conditions, it cannot be said that the conditions provided under Section 45 of PMLA impose absolute restraint on the ground of bail. C. SUBMISSIONS ON BEHALF OF THE RESPONDENT/ED 32. Mr.S.V.Raju, learned ASG and Mr.Zoheb Hossa....
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.... in the hand of few entities. 34. Learned ASG further submitted that the wholesale business which involves procurement of liquor from manufacturer were given to private players and the margin was also increased to 12%. It has been submitted that had the wholesale business remained with the government as suggested by the expert committee, the 12% margin amounting to 581 Crores would have come to the kitty of the government. Learned ASG submitted that the statement of Sanjay Goel dated 11.4.2023 and statement of C Arvind dated 13.03.2023 clearly indicates that there was no discussion in the GoM regarding the increase of margin from 5% to 12%. It has further been submitted that even the petitioner in his statement dated 07.03.2023 was unable to provide any rational explanation for increasing the profit margin from 5% to 12%. 35. Mr.S.V.Raju, learned ASG also invited the attention of the court to the statement of Mr. Arava Gopi Krishna in his statement dated 13.04.2023 wherein he has stated that neither the petitioner nor any other member of the GoM had asked the Excise Department about the calculation behind the 5% margin being allowed to the wholesaler when the license fee was ....
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.... Learned ASG submitted that Vijay Nair acquired this PoC of Rs. 100 Cr as kickbacks on behalf of the top leaders of the AAP and then used the part of this PoC in the Goa election campaign of the AAP through multiple persons and entities. It has further been submitted that all of this was done on behalf of Mr. Manish Sisodia. 40. Mr.S.V.Raju, learned ASG has further submitted that the petitioner Manish Sisodia provided undue favours to Indo Spirits, which was designed as a vehicle for the recoupment of kickbacks to the South Group. It has been submitted that Mr. Manish Sisodia expedited the process of issuing the L1 license for Indospirits. In this regard, the reference has been made to the statement of Arava Gopi Krishna, the then Excise Commissioner dated 26.12.2022. The reference has also been made to the statement of Narinder Singh, Assistant Commissioner (IMFL), Delhi Excise in his statement dated 01.11.2022. 41. Learned ASG submitted that Dinesh Arora in his statement dated 01.10.2022 has revealed that the meeting took place at ITC Kohinoor for discussion on how to transfer Kickbacks, wherein Sh Vijay Nair, asked Dinesh Arora to coordinate with Sh. Abhishek Boinapally to....
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....side the country, then the property equivalent in value held within the country] 4 [or abroad]; ... 45. Regarding "proceeds of crime" and the scope and ambit of Section 3 of PMLA has been laid down in Vijay Madanlal Chaudhary (supra). In Vijay Madanlal Chaudhary (supra) it has been held as under: "263. Coming to Section 3 of the 2002 Act, the same defines the offence of money-laundering. The expression "money-laundering", ordinarily, means the process or activity of placement, layering and finally integrating the tainted property in the formal economy of the country. However, Section 3 has a wider reach. The offence, as defined, captures every process and activity in dealing with the proceeds of crime, directly or indirectly, and not limited to the happening of the final act of integration of tainted property in the formal economy to constitute an act of money-laundering. This is amply clear from the original provision, which has been further clarified by insertion of Explanation vide Finance (No. 2) Act, 2019. Section 3, as amended, reads thus: "3. Offence of money-laundering.-Whosoever directly or indirectly attempts to indulge or knowingly assists or knowing....
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....e Courts having regard to the fact that India is a party to the said treaties. This Court went on to observe that the Constitution of India and other ongoing statutes have been read consistently with the rules of international law. It is also observed that the Constitution of India and the enactments made by Parliament must necessarily be understood in the context of the present-day scenario and having regard to the international treaties and convention as our constitution takes note of the institutions of the world community which had been created. In Apparel Export Promotion Council v. A.K. Chopra, the Court observed that domestic Courts are under an obligation to give due regard to the international conventions and norms for construing the domestic laws, more so, when there is no inconsistency between them and there is a void in domestic law. This view has been restated in Githa Hariharan, as also in People's Union for Civil Liberties, and National Legal Services Authority v. Union of India. 273. On a bare reading of Section 3, we find no difficulty in encapsulating the true ambit, given the various arguments advanced. Thus, in the conspectus of things it must follo....
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....ration the limitations prescribed under Section 439 Cr.P.C. 47. 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 granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. ....
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....e 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 a 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). 51. The present case is very peculiar in nature and may not have any parallel factual matrix. In brief, the initial allegation in the predicate offence was that the conspiracy was hatched between the political head and certain persons which included an individual allegedly representing the government with the manufacturer, liquor wholesaler and retailer. The conspiracy allegedly was hatched to introduce a new excise policy to benefit certain individuals who had given ....
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....as 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. 55. 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 under Section 50 PMLA are admissible in evidence but their evidentiary value has to be weighed at the time of trial. It is pertinent to mention here that Mr.Mohit Mathur and Mr.Dayan Krishnan, learned senior counsels for Mr.Manish Sisodia have argued that the ED is only basing its case only on the statements of the witnesses recorde....
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....e 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. 59. The facts of the present case, as stated above, are unique in nature. Here are the serious allegations where it has been alleged that deputy Chief Minister/Excise Minister framed the excise policy at the instance of some outsiders, who were going to be beneficiaries of the same. The functioning of the government is such that generally it is done in a discrete manner. The outside public has no means to have any access while policies are framed. The policies are framed under the supervision of the political heads by the senior bureaucrats. The senior bureaucrats in the present case are saying that no discussion took place on the material points like the ....
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....me provisions of the excise policy and by insertion of some favorable clauses therein for the benefit of conspirators. 62. Learned trial court inter alia held that the evidence clearly suggests that tweaking and manipulation of the excise policy by the applicant and owing to the cartel which was permitted to be formed and by limiting the participation of wholesalers, lead to creation of the POC. M/s Indospirits also earned huge profits to the tune of Rs.192 crores and this again was a result of the applicant ensuring the grant of L1 License and dealership of M/s Pernod Ricard to M/s Indospirits. Learned trial court held that it is safe to say that mens res to commit the offence of money laundering on the part of the Applicant can be inferred from the evidence placed on record. 63. In regard to the scheduled offences are concerned learned trial court inter alia held that the scheduled offences case of CBI was registered for the offence U/S 120B r/w 477A IPC and Section 7 of the PC Act and substantive offences thereof and chargesheets in the said case have been filed for offences u/S 120-B r/w 201 & 420 IPC and Sections 7, 7A, 8 and 12 of the PC Act and also the substantive off....
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....der dated 31.03.2023 wherein the court was of prima facie view that the possibility of destruction of or tampering with the evidence by him could not be ruled out, in view of the specific allegations levelled against him of such destruction or tampering by way of not producing his three out of four mobile phones before the IO as the same were expected to contain some vital piece of evidence regarding commission of the alleged offences and his involvement therein. Learned trial court observed that similar apprehensions have also been expressed in the present case on behalf of the ED and it has been submitted that during the one-year period of liquor scam, the applicant had used fourteen mobile phones having different IMEI numbers and four different SIM numbers in these mobile phones. 68. Learned trial Court took into consideration the statements made by responsible officers of the excise department which show that the file of cabinet note got prepared by the then Excise Commissioner Sh. Rahul Singh and sent for consideration of the GoM, along with the feedback given by public and the opinions given by some legal luminaries against total privatization of the liquor sector or busin....
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....credit notes of 131.9 crore to retailers which actually should have been passed to the consumers. 72. If we sum up the case of the Directorate of Enforcement, allegations and the material on record indicate that profit margin was increased from 5% to 12% without having any discussion taken place in the GoM as indicated by the statement of Sanjay Goel, (the then Excise Commissioner) dated 17.02.2023, statement of C.Arvind, DANICS (the then Secretary to Manish Sisodia) dated 13.03.2023, statement of Arava Gopi Krishna (the then Excise Commissioner) dated 13.04.2023. The ED has also alleged that even the petitioner Manish Sisodia in his statement dated 07.03.2023 could not give any plausible reason for increase of the margin from 5% to 12%. 73. The allegations are also that the draft GoM report was handed over by the petitioner Manish Sisodia to C.Arvind at C.M's House on 18.03.2021 wherein the margin was increased from 5% to 12% as compared to the earlier document dated 15.03.2021. 74. The ED has also referred to the statement of Butchi Babu dated 23.02.2023 showing interference of the South Group in framing of the excise policy. The allegations are also that e-mails were go....