TaxTMI 
TaxTMI 
2024 (5) TMI 1344
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....licant in case registered against him by Central Bureau of Investigation ('CBI'), since the same arise out of similar facts, the latter being the predicate offence and the former being a case registered on the basis of the predicate offence. The facts and the allegations to a large extent are therefore identical. 2. Since both bail applications are being decided by one common order, the brevity of the bail order had to be sacrificed. 3. The initial journey of the case began when a letter was issued on 20.07.2022 by Sh. Vinai Kumar Saxena, the Lieutenant Governor of Delhi, alleging irregularities in the framing and implementation of Delhi's Excise Policy for the year 2021-22. Subsequent to this, Sh. Praveen Kumar Rai, Director, Ministry of Home Affairs, Government of India, had directed an enquiry into the said matter, vide Office Memorandum dated 22.07.2022. Pursuant thereto, the Central Bureau of Investigation registered a case bearing no. RC0032022A0053 on 17.08.2022, for offences under Sections 120B read with 477A of Indian Penal Code, 1860 ('IPC') and Section 7 of Prevention of Corruption Act, 1988 ('PC Act'). 4. The Directorate of Enforcement entered the arena of inve....
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....dismissal of the earlier bail application, including the present judgment. Observations made above, re.: right to speedy trial, will, however, be taken into consideration. The appellant - Manish Sisodia may also file an application for interim bail in case of ill health and medical emergency due to illness of his wife. Such application would be also examined on its own merits." 9. In light of these observations, the applicant had again approached the learned Trial Court on 27.01.2024 by filing fresh bail applications in both the cases, wherein he had sought grant of regular bail primarily on the grounds of delay in trial. Both the applications were dismissed by the learned Trial Court vide orders dated 30.04.2024, resulting in the present bail applications. BRIEF FACTS OF THE CASE 10. The case set out by the Central Bureau of Investigation, in brief, is that during the formulation of the Delhi's Excise Policy of 2021-22, the accused persons had entered into a criminal conspiracy, thereby intentionally creating or leaving loopholes in the policy to be exploited later on. Substantial kickbacks were allegedly paid in advance to the public servants involved, in exchange for un....
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....e Ms. K. Kavitha and Sh. Raghav Magunta, through proxies Sh. Arun Pillai and Sh. Prem Rahul Manduri, held a 65% partnership. M/s Indo Spirits was used to launder money, employing methods like control of the firm, excess credit notes, and overdue outstanding payments to recoup kickbacks. As far as investigation qua trial of kickbacks is concerned, the Directorate of Enforcement claims part of these funds was used in AAP's 2022 Goa Assembly election campaign, with Rs. 45 crores sent to Goa through hawala channels. As per the case of Directorate of Enforcement, the applicant is the key conspirator in this case, who was actively involved in generating, concealing, projecting as untainted, and using the proceeds of crime. 13. The first prosecution complaint was filed by the Directorate of Enforcement was on 26.11.2022 and the cognizance of the same was taken by the learned Trial Court on 20.12.2022. Thereafter, Directorate of Enforcement has also filed five supplementary prosecution complaints, the sixth supplementary prosecution complaint was filed during the pendency of the present applications against co-accused Sh. Kejriwal. The applicant herein i.e. Sh. Manish Sisodia was made a....
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....ages which were dim and not legible. It is stated that the applicant had moved certain applications to that effect, which were in fact allowed by the learned Trial Court. Thus, it is stated that the observations made by the learned Trial Court are totally incorrect since all the applications had been allowed by the learned Trial Court itself. 16. It is further submitted that one of the applications moved by the present applicant was seeking permission to meet his wife physically since his wife is suffering from various ailments and that the said application was allowed by the learned Trial Court by way of custody parole and thus, this application cannot be regarded as a delay tactic. Further, the other applications filed by the applicant have been erroneously termed as frivolous by the learned Trial Court to justify the rejection of grant of bail, however, the said applications were of such nature which are filed by an accused in the normal course of criminal trial, and it is a matter of fact that the present applicant has to approach the learned Trial Court for seeking such reliefs since he is in judicial custody and he has no other legal recourse available to him. It is argued....
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....issions qua the case filed by Directorate of Enforcement 21. Sh. Dayan Krishnan, learned Senior Counsel appearing on behalf of applicant argues that the applicant was arrested on 09.03.2023, and has been in judicial custody for more than 14 months. It is further argued that the Hon'ble Supreme Court in Manish Sisodia (supra) has confirmed that the applicant can seek regular bail in case the trial is not proceeding further, since speedy trial is a facet of Article 21 of Constitution, and the same must be read into both Section 439 of Cr. P.C. and Section 45 of PMLA; and where the trial would not be proceeding for reasons not attributable to the accused, the Court would be justified in granting bail. Therefore, it is submitted that the applicant herein had filed his second regular bail application before the learned Trial Court which was dismissed vide order dated 30.04.2024. Pursuant to that, the applicant is before this Court seeking grant of regular bail in case arising out of ECIR bearing no. HIU-II/14/2022. 22. It is argued that by Sh. Dayan Krishnan that as mentioned in the judgment of Manish Sisodia (supra), the prosecuting agency i.e. the Directorate of Enforcement had ....
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....relied upon documents. Furthermore, the factors allegedly causing delay i.e. application for supply of hard copies of relied upon documents, cannot be attributed to the applicant since no such application was preferred by the present applicant. 24. It is argued on behalf of the applicant that in fact, it is the Directorate of Enforcement itself which has been delaying the trial. It is stated that in order dated 22.11.2023, the learned Trial Court in para 9 has categorically noted that the Directorate of Enforcement was attempting to introduce new documents in relied upon documents for earlier prosecution complaints, without the leave of the Court. Subsequently, on 06.12.2023, the Directorate of Enforcement had preferred an application seeking to place on record around 540 pages of documents which were relied upon in the main and four supplementary prosecution complaints but ironically, these documents, which should have been already filed, were not included in the relied upon documents along with those complaints. This application was filed by the Directorate of Enforcement more than a year after the filing of the first prosecution complaint dated 26.11.2022 and more than seven ....
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.... is further submitted that Directorate of Enforcement is taking all possible steps to conduct an effective and fair investigation, which would be hampered if the applicant is released on bail; especially in light of the nature of the case, severity of allegations and voluminous evidence on record. 28. It is further argued by Sh. Zoheb Hossain that the conspiracy in this case was to see that Aam Aadmi Party makes wrongful gains in the form of bribes given by persons who were favoured in the proposed New Excise Policy and in the said process it had been assured that the accused persons giving bribes would recoup as well as get additional benefits out of the New Excise Policy. It is further submitted that the applicant was actively involved in the formulation and implementation of the New Excise Policy that would enable the bribe giver to recoup/recover the bribe and make more money. It is argued that the opinion/report of the Expert Committee headed by Mr. Ravi Dhawan, the then Excise Commissioner, was only to create an impression of a false transparency since the recommendations of the expert committee were never implemented or even debated upon or discussed during the farcical m....
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....mber of applications and the nature of the requests made, the Directorate of Enforcement has taken all necessary steps to comply with several requests with a view to expedite the trial. It is also argued that this progress has taken place despite concerted and consistent efforts of the accused persons to delay the trial. In this regard, it is further submitted that from 26.11.2022 (i.e. the date of filing the first prosecution complaint) till 30.10.2023 (i.e. date of Hon'ble Supreme Court order rejecting the bail of Sh. Manish Sisodia), only 40 applications were filed by the accused persons including Sh. Manish Sisodia. However, right after the bail was rejected and the applicant was given liberty to file bail again if the trial protracted, the number of applications filed by the accused persons increased to 130 in a period of six months. It is argued that most of these applications were repetitive, redundant and frivolous. It is further stated that almost all the accused persons requested for supply of hard copies of all relied upon documents/prosecution complaints on 21.11.2023 i.e. after the judgment of Hon'ble Supreme Court dated 30.10.2023. This fact has also been noted by the....
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...., during the proceedings under Section 207 of Cr. P.C., as per direction of the learned Trial Court vide order dated 19.10.2023, the process of inspection of un-relied documents and un-relied statements of witnesses was to be concluded by the defence Counsels by 22.11.2023. However, the counsels of the accused persons did not complete the inspection of un-relied documents and un-relied statements of witnesses by the said date. In view of the same, the learned Trial Court vide its order dated 22.11.2023 directed them to complete the work of inspection by 22.12.2023. However, in compliance with the said order, the counsel for the applicant visited the CBI office for the purpose of inspection of un-relied documents and statements of the witnesses only for four days and that too for a few hours. 36. It is further argued that despite conducting the inspection of the un-relied documents, the accused persons, with the intention to delay the trial, again filed an application under Section 207 Cr. P.C. before the learned Trial Court on 22.12.2023, for supply of copies of the documents seized during the searches conducted by CBI at the premises of the accused petitioner; whereas copies of....
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....e present bail application be dismissed. 40. This Court has heard arguments addressed on behalf of the applicant Sh. Manish Sisodia by the learned Senior Counsels, as well as learned counsels appearing on behalf of the Central Bureau of Investigation and Directorate of Enforcement. The material placed on record by both the sides has also been perused and considered. ISSUES BEFORE THIS COURT 41. The issues which were raised during the course of arguments, and which arise for consideration for deciding this bail application, are as under: i. Whether the order of the Hon'ble Supreme Court entitles the present applicant to grant of bail, solely on the ground of delay of trial? ii. Has there been a delay in this case attributable to Sh. Manish Sisodia? iii. Is the applicant Sh. Manish Sisodia entitled to grant of bail in both the cases i.e. cases registered by CBI and E.D.? DIRECTIONS OF THE HON'BLE SUPREME COURT IN JUDGMENT DATED 30.10.2023: WHETHER THE APPLICANT IS ENTITLED TO BAIL ON SOLE GROUND OF DELAY IN TRIAL? 42. By virtue of judgment dated 30.10.2023, though the petitions filed by Sh. Manish Sisodia, seeking bail in both the cases, were....
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....a fresh application for bail in case of change in circumstances, or in case the trial is protracted and proceeds at a snail's pace in next three months. If any application for bail is filed in the above circumstances, the same would be considered by the trial court on merits without being influenced by the dismissal of the earlier bail application, including the present judgment. Observations made above, re.: right to speedy trial, will, however, be taken into consideration. The appellant - Manish Sisodia may also file an application for interim bail in case of ill-health and medical emergency due to illness of his wife. Such application would be also examined on its own merits." 44. Learned Senior Counsels for the applicants have insisted that the proceedings before the learned Trial Court in this case have moved at snail's pace, and the cause for such delay is not attributable to the present applicant and in view of the judgment of the Hon'ble Apex Court, especially the observations in para 28 and 29 which are unambiguous and clear, such delay in itself becomes a ground for grant of bail as no person can be incarcerated indefinitely without being pronounced guilty. They have a....
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....as also clarified by the Hon'ble Apex Court in paragraph 30 of the judgment dated 30.10.2023 that the observations made in the said judgment, either way, were only for the disposal of those appeals, and those observations would not influence the Trial Court on the merits of the case, which would proceed in accordance with law, and be decided on the basis of the evidence led. It was further expressed by the Hon'ble Apex Court that all disputed factual and legal issues were left open. 49. After carefully considering the observations made by the Hon'ble Supreme Court, this Court is of the opinion that: (i) Firstly, the Hon'ble Supreme Court had granted only liberty to the present applicant Sh. Manish Sisodia to institute a fresh bail application before the learned Trial Court either in case of change in circumstances or if the trial is protracted and proceeds at a snail's pace in the next three months. (ii) Secondly, it was clearly expressed by the Hon'ble Supreme Court that any such fresh bail application would be considered and decided by the learned Trial Court 'on merits', without being influenced by the dismissal of earlier bail applications including the one....
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....s that the learned Trial Court has observed in impugned orders dated 30.04.2024 that the applicant individually, and along with different accused persons, had filed multiple applications or made oral submissions frequently, out of which some were frivolous, and this too, was done on a piecemeal basis, and thus, it was apparent that there was a concerted effort of the accused persons in accomplishing their shared purpose i.e. causing delay in the matter. It was also observed that despite the apparent attempts to slow down the progress of the case, it could not be regarded as proceeding at "snail's pace". 55. After considering the rival contentions, this Court is of the opinion that it shall be crucial to first take note of the applications preferred by the applicant Sh. Manish Sisodia, which were either filed or disposed of, after the judgment dated 30.10.2023 by the Hon'ble Apex Court in case of Manish Sisodia (supra). Applications preferred by the Applicant in CBI case before the Ld. Trial Court S.NO. DATE OF APPLICATION / ORAL SUBMISSION NATURE OF APPLICATIONS/ ORAL REQUESTS WHETHER THE APPLICATION WAS ALLOWED BY THE LEARNED TRIAL COURT? 1. 10.11.2023 S....
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....t of date of hearing of the bail application filed on behalf of the accused Manish Sisodia. The said application was allowed by the learned Trial Court vide order dated 27.03.2024 and the matter was then listed on 02.04.2024 at 2 PM. 12. 30.03.2024 Application seeking issuance of Production warrants of A-8, Manish Sisodia under Section 267 of Cr.P.C. during arguments on his bail application The said application was allowed by the learned Trial Court vide order dated 01.04.2024. 13. 12.04.2024 Application for grant of interim bail for election campaigning by Manish Sisodia. (withdrawn on 20.04.2024) The said application was withdrawn by the Applicant as the order in the regular bail application was reserved by the learned Trial Court. Applications preferred by the Applicant in E.D. case before the Ld. Trial Court S.NO. DATE OF APPLICATION / REQUEST NATURE OF APPLICATIONS/ ORAL REQUESTS WHETHER THE APPLICATIONS WERE ALLOWED BY THE LEARNED TRIAL COURT? 1. 19.07.2023 Application filed by the applicant for supply of missing documents and legible copies under Sections 207/208 of Cr. P.C. The said application was allo....
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....ication seeking issuance of Production warrants of A-8, Manish Sisodia under Section 267 CrPC during arguments on his bail application The said application was allowed by the learned Trial Court vide order dated 01.04.2024. 13. 12.04.2024 Application for grant of interim bail under Section 45 PMLA for election campaigning by Manish Sisodia. (withdrawn on 20.04.2024) The said application was withdrawn by the Applicant as the order in the regular bail application was reserved by the learned Trial Court. Whether the applicant or other accused persons can be held responsible for delay in initiation of trial due to their act of filing different applications before the learned Trial Court? 56. There is no dispute about the fact that the trial in this case is yet to commence, since the proceedings, which are to be mandatorily carried out under the law as per code of Criminal Procedure, are still underway as the accused persons have moved multiple individual applications related and unrelated to Sections 207/208 of Cr. P.C. i.e. for supply of relevant documents, which is continuing till today. 57. This Court notes that in a case of conspiracy which involves multiple....
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....he statements and confessions, if any, recorded under section 161 or section 164; (iii) any documents produced before the Magistrate on which the prosecution proposes to rely: Provided that if the Magistrate is satisfied that any such document is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court." 58. In the case of P. Gopalkrishnan v. State of Kerala (2020) 9 SCC 161, the provision of Section 207 of Cr. P.C. was held to be a part of right to fair trial. The relevant observations are under: "21. Be that as it may, furnishing of documents to the accused under Section 207 of the 1973 Code is a facet of right of the accused to a fair trial enshrined in Article 21 of the Constitution..." 59. The Hon'ble Apex Court, in case of In Re: To issue certain guidelines regarding inadequacies and deficiencies in criminal trial v. State of Andhra Pradesh, Suo Moto Writ (Crl.) No. 1/2017 decided on 20.04.2021, has made the following observations with respect to the supply of relevant documents as well as supply of list of un-relied documents to....
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.... the issue of missing/ illegible pages of other documents was already raised. Ld. SPP for ED states that there is no end to filing of such applications by the accused persons and without going into the question whether these documents were earlier supplied or not, they are ready to supply copies of above electronic devices again to the above two accused." 63. In another order dated 19.01.2024, in the case filed by CBI, the learned Trial Court while dismissing an application filed by the applicant Sh. Manish Sisodia had observed as under: "Arguments on the above application of A8 have been heard. A copy of the search list prepared during the course of search proceedings carried out at the residential as well as official premises of the said accused was admittedly supplied during the course of proceedings itself and there is no requirement of supplying copies of the documents or articles, which were seized during the said searches. Hence, the request contained in this application for supply of copies of the documents or articles which were seized by officers of CBI during the course of above searches is rejected. Though, the legality of above search proceedings h....
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....r extended till 05.02.2024. 65. Thus, prima facie, the accused persons including the applicant herein have delayed the pre-charge proceedings under Section 207 of Cr. P.C. by taking three months time from 19.10.2023 to 19.01.2024 for inspection of un-relied documents despite repeated directions from learned Trial Court to conclude the same expeditiously. Applications unrelated to Section 207/208 of Cr. P.C. 66. This Court also notes that except the application pertaining to Section 207/208 of Cr. P.C., the applicant had also filed several other applications, unrelated to Section 207/208 of Cr. P.C. In this Court's opinion, the mere act of filing an application seeking any relief cannot automatically be construed as a delay tactic since an accused, who is in judicial custody, cannot be stopped from moving applications for fulfilment and enforcement of their personal, legal and fundamental rights and their applications cannot be simply termed as frivolous. 67. The accused persons, especially the undertrial prisoners, have only a Trial Court to turn to for redressal of their personal grievances and seeking permissions for small and big reliefs such as signing of a cheque i....
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....dence, which is a common phenomenon especially in cases involving economic offences. As the statements of witnesses are recorded and documentary evidence is collected, the factual landscape of the case becomes clearer, often revealing complexities that may not initially be apparent. Moreover, the discovery of new evidence or the emergence of unforeseen legal issues may necessitate additional time for thorough examination and consideration. Legal proceedings are needless to say, inherently complex, with each stage of the investigation or pre-trial proceedings, uncovering new information and raising new questions that require careful consideration. 73. The investigation in this case, of course, became more tedious, cumbersome and challenging since the accused persons either destroyed their mobile phones which contained relevant data and incriminating material or refused to provide the password of their phones, making it more difficult and challenging for the investigating agency to link one accused with another. The alleged Hawala transactions and the cash being sent through Hawala channels spread over different states, and investigating accused(s) and witnesses in different state....
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....al Court while dismissing the application seeking stay on hearing arguments on charge in the case registered by the CBI, vide order dated 27.03.2024, had observed as under: "24. Even otherwise, as also discussed above, two of the accused in this case i.e. A8 Manish Sisodia and A9 Amandeep Singh Dhall are still running in judicial custody since long and in considered opinion of this court, their interests will be more prejudiced if the proceedings of this case are halted for no fault on their part and they are made to sit in prison or are kept detained pending conclusion of the further investigation. Thus, it is rather in the interests of accused themselves, especially the accused who are running in judicial custody, if a hearing on charges is commenced by this court without waiting for conclusion of the ongoing further investigation. 25. During the course of hearing on these applications, it has also been stated by IO that the ongoing further investigation may be completed within three to four months and the same is pending not because of any fault on their part, but because of the fact that some of the suspects or offenders are evading the joining of investigatio....
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....g to dispose of the applications on the same day which could be disposed of without waiting for a reply, and has also expeditiously adjudicated by disposing of the applications filed by multiple accused persons for supply of copies. Thus, this Court cannot hold that the pre-trial proceedings before the learned Trial Court have proceeded at snail's pace. 83. However, due to multiple accused persons and voluminous record, there has been a delay in commencement of trial, despite the Directorate of Enforcement providing the copies and the record as was asked for by the Court expeditiously, even withdrawing a petition i.e. CRL.M.C. 1419/2023 filed before this Court to ensure speedy pre-trial proceedings. The present accused Sh. Manish Sisodia has not stated before the learned Trial Court in the case registered by Directorate of Enforcement that he may be heard on charge. Since Sh. Manish Sisodia had moved an application seeking inspection of un-relied documents before the stage of charge itself, this Court presumes that the documents relied upon by the prosecution have been thus supplied to the counsel for the applicant persons to his satisfaction in the case filed by Directorate of ....
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....m others according to his circumstances, human life is unpredictable and there may be a number of unpredictable situations for a person in judicial custody for which he has to approach the Court. For example, in the case of the present applicant, his moving the application to meet his wife due to her illness or the need to attend to her is by no stretch of imagination frivolous but a necessity, which is unrelated to proceedings under Section 207/208 of Cr. P.C. and had to be adjudicated at the earliest. This Court observes that the applications which had to be adjudicated upon, in totality have taken judicial time to adjudicate. Such adjudicatory time taken by the Court and the applications moved by the applicant may not be related to law but are related to life. 88. At times, justice hurried may lead to justice being buried either to the accused or to the prosecution which is not the intent of criminal jurisprudence of this country, as has been most recently observed in the case of Sunita Devi v. State of Bihar 2024 INSC 448 by the Hon'ble Apex Court. PRINCIPLES GOVERNING GRANT OF REGULAR BAIL UNDER SECTION 439 OF CR. P.C. & IN CASES INVOLVING ECONOMIC OFFENCES 89. Before....
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.... the Hon'ble Supreme Court observed that economic offences constitute a class apart, and thus, gravity of such offences has to be kept in mind while considering a plea for grant of bail. The relevant observations are extracted hereunder: "34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country." (emphasis supplied) PRINCIPLES GOVERNING GRANT OF BAIL UNDER PMLA 93. As regards the offence of money laundering, under Section 3 and 4 of PMLA, the mandatory twin conditions under Section 45(1) of PMLA are required to be satisfied, before an accused can be enlarged on bail. These twin conditions are: (i) the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence, and (ii) the accused is not likely to commit any offence while on bail. 94. In this context, ....
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....ly a view of the Court based on available material on record is required. The Court will not weigh the evidence to find the guilt of the accused which is, of course, the work of Trial Court. The Court is only required to place its view based on probability on the basis of reasonable material collected during investigation and the said view will not be taken into consideration by the Trial Court in recording its finding of the guilt or acquittal during trial which is based on the evidence adduced during the trial. As explained by this Court in, the words used in Section 45 of the 2002 Act are "reasonable grounds for believing" which means the Court has to see only if there is a genuine case against the accused and the prosecution is not required to prove the charge beyond reasonable doubt." (emphasis supplied) 95. In case of Tarun Kumar v. Enforcement Directorate 2023 SCC OnLine SC 1486, the Hon'ble Apex Court has held as under: "17. As well settled by now, the conditions specified under Section 45 are mandatory. They need to be complied with. The Court is required to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such o....
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....rty and close associate of Sh. Manish Sisodia), for siphoning off 6% out of the 12% windfall profit margin for wholesalers provided in the Policy, in lieu of payment of advance kickbacks/bribes. Further investigation qua the present applicant Sh. Manish Sisodia revealed that the New Excise Policy was formulated by a Group of Ministers (GoM) headed by the present applicant, with a preconceived agenda. The accused persons, who were members of the South Group, played a major role in formulation of the Excise Policy and they were always present in Delhi at the crucial stages of Policy formulation and were in touch with co-accused Sh. Vijay Nair, a close associate of the present applicant. 99. The Directorate of Enforcement alleges that Sh. Manish Sisodia was not only the head of the Group of Ministers (GoM) which was tasked by the Cabinet to examine all aspects of the erstwhile excise system, report of the expert committee and comments received from the stakeholders, but he was also the Excise Minister and had played a key role in modifying the terms of the Excise policy in a manner which would benefit the co-accused persons. It is alleged that Sh. Manish Sisodia had got the policy ....
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.... Ravi Dhawan. 27.01.2021 to 02.02.2021 ● A draft Cabinet note was prepared by Sh. Rahul Singh on 28.01.2021, the then Excise Commissioner, which contained the opinions of three legal experts. ● Pursuant to this draft Cabinet note having been prepared which was against the desire of Sh. Manish Sisodia, Sh. Rahul Singh was transferred on 01/02.02.2021. ● New Excise Commissioner Sh. Sanjay Goel was appointed and was asked to prepare a fresh Cabinet note, without annexing the opinion of three legal experts. 05.02.2021 ● Report of Expert Committee and comments received from public/stakeholders (including the pre-decided emails sent on the directions of Sh. Manish Sisodia) were placed before the Council of Ministers in Cabinet Meeting as per directions of Sh. Manish Sisodia. ● Group of Ministers (GoM) was constituted to examine all aspects of the existing excise system. ● GoM consisted of Sh. Manish Sisodia, Sh. Satyendra Jain and Sh. Kailash Gehlot. 14.03.2021 to 17.03.2021 The representatives and certain members of the 'South Group' were present in Delhi and were staying at Oberoi Hotel. The records of the hotel have bee....
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.... report and directed the Excise Department to implement the report, and accordingly prepare the Excise Policy for the year 2021-22. 27.03.2021 A meeting between Sh. Vijay Nair with Sh. Amandeep Singh Dhall, Sh. Benoy Babu, Sh. Jagbir Sidhu etc. took place at Hotel Oberoi Maidens, Civil Lines, Delhi. 05.04.2021 The GoM vide minutes dated 05.04.2021 recommended and approved the additional clarification/ modification in the GoM report wherein the definition of related party/sister concern was diluted. This was incorporated to facilitate co-accused Sh. Sameer Mahandru and other members of South Group to capture wholesale market through M/s Indo Spirits and even retail zones through M/s Khao Gali, as Sh. Sameer Mahandru had made his wife resign from the directorship of M/s. Geetech Dynamic (major shareholder of M/s. Khao Gali) and made director in M/s Indo Spirits, and M/s. Khao Gali was later allotted two retail zones. 18.06.2021 A meeting between Sh. Vijay Nair and Sh. Dinesh Arora with Sh. Arun Pillai, Sh. Abhishek Boinpally and Sh. Butchi Babu took place at ITC Kohinoor, Hyderabad in connection with the Excise Policy of Delhi. In this meeting, Sh. Vijay Nair assure....
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....ell as co-accused persons including members of the South Group, from whom kickbacks were demanded and received. Thus, it would be important to also examine his association with Sh. Manish Sisodia, the present applicant. 103. Sh. Vijay Nair in his statement dated 18.11.2022 had admitted that he used to live in a government bungalow which was officially allotted to a Cabinet Minister Sh. Kailash Gehlot, without any official authorization, and this bungalow was situated close to the residence of the Chief Minister of Delhi. He had also disclosed that he used to operate from the camp office of Delhi's Chief Minister Sh. Arvind Kejriwal. 104. Sh. C. Arvind, the then Secretary to Sh. Manish Sisodia, in his statement recorded under Section 50 of PMLA, has disclosed that Sh. Vijay Nair was the In-charge of Media and Communication for AAP and used to work from Chief Minister's camp office. He had further disclosed that after the Excise Policy was announced, the frequency of meetings between Sh. Vijay Nair and Sh. Manish Sisodia had increased, and whenever Sh. Vijay Nair would come and meet Sh. Manish Sisodia in the office, they both would go to one retiring room and have discussio....
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....ddress where public and stakeholder comments had been invited, as well as to his own email address. The suggestions, such as the introduction of an auction system and the reduction of Excise and VAT, which eventually became recommendations of the GoM for formulating the liquor policy, were thus allegedly planted by Sh. Manish Sisodia. This was done to project them as the opinions of the public and stakeholders, thereby camouflaging the GoM's malafide intention to deviate from the Expert Committee's report. 110. In this regard, the Court has pursued the statement dated 27.03.2023 of Sh. Zakir Khan, Chairman of the Delhi Minorities Commission. Sh. Khan has revealed that Sh. Manish Sisodia had informed him about the formulation of a new Excise policy in Delhi and that the Expert Committee's report was open for public comments. Sh. Manish Sisodia had instructed him to ensure the submission of the following comments: (i) equal distribution of liquor shops across all districts to control illegal sales, and (ii) adoption of an auction/tender system instead of the lottery system for obtaining shop licenses. Due to Sh. Manish Sisodia's seniority, Sh. Khan had straightaway passed ....
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....Srivastava had contacted Sh. Gaurav Mann of the Excise Department to compile the suggestions received from these six email IDs and send them via email to Sh. Srivastava, who had then printed and handed them to Sh. C. Arvind, who had subsequently given them to Sh. Manish Sisodia. 115. The Directorate of Enforcement has corroborated these facts through an email dated 19.01.2021 sent by Sh. Gaurav Mann to Sh. Alok Srivastava, WhatsApp chats between them, and the statements of Sh. C. Arvind, Sh. Gaurav Mann, and Sh. Alok Srivastava. 116. Thus, the aforesaid facts prima facie reveal at this stage, that in order to overcome the hurdle posed by the Expert Committee Report, Sh. Manish Sisodia had called for public opinion, parts of which were also manufactured by him only, in order to show to the general public that it was the general public and other stakeholders, who were giving suggestions contrary to the Expert Committee report, and not the Government of Delhi, which were taken into consideration while formulating the new Excise Policy. Change of Draft Cabinet Note by Sh. Manish Sisodia to Hide Opinion of Legal Experts 117. As noted in the timeline, the Expert Committee had....
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....sodia, in his statement dated 07.03.2023, had failed to offer any reasonable justification for the proposed increase in the profit margin from 5% to 12%. It is also important to note that neither Sh. Manish Sisodia nor any other Minister, who were part of the Group of Ministers, had sought clarification on the rationale behind the 5% profit margin stipulated in the previous regime. This aspect was brought to light by Sh. Arava Gopi Krishna in his statement dated 13.04.2023. 124. This is an important aspect since the prosecution has alleged that the draft of GoM report which was prepared on 15.03.2021 mentioned the wholesale profit margin as 5%, whereas the document finalised on 18/19.03.2021, on the instructions of Sh. Manish Sisodia, contained the wholesale profit margin as 12%, which was allegedly increased at the behest of members of South Liquor Group for recoupment of the bribes paid by them in advance. Role of Applicant in Ensuring Allotment of L-1 License to M/s Indo Spirits 125. The prosecution has also alleged, on the basis of investigation conducted by it, that the present applicant was instrumental in providing undue favours to M/s Indo Spirits, which was design....
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....d (i.e. retail zone licensee), and others had already been received on 18.10.2021. However, this complaint was ignored by the Excise Department. Despite this complaint being pending against M/s Indo Spirits, Sh. Manish Sisodia, as revealed from the statements of witnesses in the CBI case, had directed the concerned officials of Excise department to clear the file of M/s Indo Spirits and ensure that it was allotted wholesale distributor licence (L-1), which shows his direct role in the entire scheme of conspiracy. Destruction of Electronic Evidence by Sh. Manish Sisodia 131. This Court also notes that one of the allegations against Sh. Manish Sisodia pertains to the destruction of evidence, allegedly to obstruct the investigation in the present case. 132. The fourth supplementary prosecution complaint filed by the Directorate of Enforcement reveals that during the period from 01.01.2021 to 19.08.2022, the applicant, Sh. Manish Sisodia, used three mobile handsets. The last handset, which was seized from him on 19.08.2022 during searches conducted by the CBI, had been in use by him since 22.07.2022. Notably, this date coincides with the referral of the present matter for CBI ....
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....rge in the complaint filed under the PML Act, which is free from perceptible legal challenge and the facts as alleged are tentatively supported by material and evidence. This discussion is equally relevant for the charge-sheet filed by the CBI under the PoC Act and IPC. We would like to recapitulate the facts as alleged, which it is stated establish an offence under Section 3 of the PML Act and the PoC Act. These are: • In a period of about ten months, during which the new excise policy was in operation, the wholesale distributors had earned Rs. 581,00,00,000 (rupees five hundred eighty one crores only) as the fixed fee. • The one time licence fee collected from 14 wholesale distributors was about Rs. 70,00,00,000 (rupees seventy crores only). • Under the old policy 5% commission was payable to the wholesale distributors/licensees • The difference between the 12%; minus 5% of the wholesale profit margin plus Rs. 70,00,00,000/-; it is submitted, would constitute proceeds of crime, an offence punishable under the PML Act. The proceeds of crime were acquired, used and were in possession of the wholesale distributors who have unlawful....
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....icle to recoup and launder the proceeds of crime, which then acquired the L-1 wholesale license by the acts of conspiracy and in lieu of the payment of alleged kickbacks. Thus, the entire profit (12%) of M/s Indo Spirits of Rs. 192.8 crore, would constitute proceeds of crime as per Section 2 (1) (u) of PMLA. As inferred from the investigation conducted, prima facie it appears at this stage that Sh. Manish Sisodia has knowingly assisted the members of South Groups and other co-accused persons by ensuring grant of L-1 license to M/s Indo Spirits as well as ensuring, through Sh. Vijay Nair, that M/s Indo Spirits gets the distribution business of M/s Pernod Ricard. 141. It is also the case of the Directorate of Enforcement that advance kickbacks to the tune of Rs. 100 crores were received by the applicant and Aam Aadmi Party, through Sh. Vijay Nair, from the members of South Group, in lieu of which favourable clauses were incorporated in the new Excise Policy. The investigation had also revealed that Sh. Manish Sisodia had directed approver Sh. Dinesh Arora to work with co-accused Sh. Vijay Nair, following which Sh. Dinesh Arora had coordinated the transfer of advance kickbacks of R....
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....cy, Expert Committee Report, and the public feedback. ➔ During the period when the report of Group of Ministers was being prepared, the members of the South Liquor Group were present in Delhi. Investigation revealed that certain clauses were added in the report of Group of Ministers at the behest of South Liquor Lobby. ➔ Investigation also revealed that advance kickbacks i.e. bribes, allegedly to the tune of Rs. 100 crores were paid by co-accused persons including the members of South Liquor Lobby, in exchange of getting favourable clauses added in the policy for their benefit. As per investigation, Rs. 45 crores out of these kickbacks were used in Goa Assembly Elections by the Aam Aadmi Party to which the applicant belongs. ➔ The draft report of Group of Ministers, which was finalized by Sh. Manish Sisodia, was thereafter approved by the Council of Ministers of Delhi Government headed by Sh. Arvind Kejriwal. Thus, the new Excise/Liquor Policy of Delhi was formed. ➔ How did this policy work to the detriment of relatively smaller businesses and vendors? (a) Wholesale distributor license could be granted only to....
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....had argued that the applicant satisfies the triple test for grant of bail. However, this Court is also of the opinion that as alleged by the prosecution on the basis of material collected and investigation conducted so far, that the applicant Sh. Manish Sisodia had prima facie indulged in acts of destruction of crucial evidence including electronic evidence. It is an admitted fact that Sh. Manish Sisodia had failed to produce two of his mobile phones which he had been using prior to initiation of investigation in this case and had claimed that the same were damaged, but he was not aware of their whereabouts. Thus, the possibility of tampering with evidence, if the applicant is released on bail, cannot be ruled out in this case. 146. This Court further notes that the applicant was serving as the Deputy Chief Minister of Delhi and was holding 18 portfolios in the Cabinet. This shows that he was a powerful power centre of the party as he, as a single individual, had responsibility of 18 Ministries dealing with multiple portfolios and was having many senior officers working under him to run the administration of those departments. These senior officers, some of whom have given state....
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....s, received as kickbacks, as per the evidence now available on record after further investigation in the case by the Directorate of Enforcement was allegedly through Hawala operators and there are statements recorded under Section 50 of PMLA in this regard. There are further statements as to how money was received for Goa elections in cash through Hawala channels. 150. To sum up, there is no dispute about the fact that Sh. Manish Sisodia was the Minister concerned of Excise Department, who was responsible for formulation as well as implementation of Delhi Excise Policy 2021-22, and due to the irregularities committed in its formulation, such as increasing the margin of wholesale distributors from 5% to 12% without any reasonable justification, the wholesale distributors were able to earn an additional profit of 7% amounting to Rs. 338 crores. There is material on record to prima facie show that the members of South Group were involved in formulation of the Delhi Excise Policy and had met with co-accused Sh. Vijay Nair on several occasions, who was the In-charge of Media and Communication wing of Aam Aadmi Party and used to function from the office of Delhi's Chief Minister and a....
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....s commission of serious offence of corruption in public office and specifically money laundering. These offences strike at the heart of our economic and social systems, undermining the rule of law and eroding public trust in our institutions. 156. In cases of economic offences, the Hon'ble Apex Court has held that economic offences, which have deep rooted conspiracies, have to be considered as grave offences for the purpose of grant of bail [Ref: Y.S. Jagan Mohan Reddy (supra)]. 157. It has also been held that economic offences are grave offences considering their consequences on the society as a whole, and the gravity will have to be considered on a case-to-case basis, on the basis of facts involved therein [Ref: P. Chidambaram v. Directorate of Enforcement (2020) 13 SCC 791]. 158. In addition to aforesaid, the Hon'ble Apex Court has also time and again held that delay cannot be the sole criteria for grant of bail in cases of economic offences and/or those involving money laundering. In case of State of Bihar v. Amit Kumar (2017) 13 SCC 751, following important observations were made by the Hon'ble Apex Court: "8. A bare reading of the order impugned discloses th....
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....ial." 22. Lastly, it may be noted that as held in catena of decisions, the economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. Undoubtedly, economic offences have serious repercussions on the development of the country as a whole. To cite a few judgments in this regard are Y.S. Jagan Mohan Reddy vs. Central Bureau of Investigation , Nimmagadda Prasad vs. Central Bureau of Investigation, Gautam Kundu vs. Directorate of Enforcement (supra), State of Bihar and Another vs. Amit Kumar alias Bachcha Rai. This court taking a serious note with regard to the economic offences had observed as back as in 1987 in case of State of Gujarat vs. Mohanlal Jitamalji Porwal and Another as under:- "5... The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to books. A murder may be committed in ....
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.... the cases of money laundering falling under Section 3 of the PMLA, subject to the Provisos and the Explanation contained therein." 161. Therefore, in view of the above-referred judicial precedents, this Court is of the opinion that the applicant herein cannot be entitled to bail solely on the ground of delay in trial, especially when he has failed to pass the triple test and other parameters including gravity of offence, for grant of bail under Section 439 of Cr. P.C. as well as the twin conditions under Section 45 of PMLA. CONCLUSION 162. In this Court's opinion, corruption is a menace which when committed while holding a public office eats the very crop that it has to guard. Manufacturing Fake Public Opinion: Another Form of Corruption 163. The case at hand allegedly prima facie hints at misuse of power and breach of public trust by the applicant, who was serving as the Deputy Chief Minister of Delhi at the relevant point of time. As a minister having 18 portfolios including the Department of Excise, the applicant was entrusted with the formulation of a new liquor policy for the NCT of Delhi. However, the material collected during investigation, which has been dis....
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....on in the formulation of the new liquor policy presuming that their opinion matters, and since the Delhi Government itself had called for their opinion, it would be taken into consideration. 166. Noteworthy is also the fact that the public reposes its faith in the Government that if suggestions are being called from them, they will be considered too. However, the same were brushed aside by removing the same from the draft cabinet note which was prepared by the then Excise Commissioner on the behest of Sh. Manish Sisodia, since the same did not align with the pre-determined goal of the applicant. This material on record prima facie allegedly points towards the intent and one of the steps towards acceptance of the changes that Sh. Manish Sisodia wanted to bring in the New Excise policy. 167. The dissemination of false opinions, particularly when presented as genuine feedback, also constitutes a form of corruption. In the eyes of the Court, the distinction between manufacturing public opinion and gathering genuine public feedback is stark. 168. This camouflage of public opinion may be used as a shield by the policymakers, to protect themselves from criticism or accountability....
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..... 173. Moreover, the form of corruption which has the tendency of stealing the legitimate resources of the poor ordinary people and giving it to the rich can be one of the worst forms of corruption. 174. Small and medium-sized enterprises, which are managed by common people, and are the backbone of economic growth and job creation, are particularly vulnerable to the detrimental impacts of corruption which is prima facie visible in the formulation of the new Excise Policy which eradicated the common and small time businesses and gave the entire playing field in the liquor business to those who had money, power and had created a cartel on the basis of financial gains to those formulating a policy, which adds to the seriousness of the offence at this stage. 175. In this Court's opinion, non-recovery of any amount of money in cash cannot be a proof prima facie that no corruption has taken place since the offender's mind uses the new technology to commit offences without leaving traces of commission of offences. There can be no question of acceptance of argument regarding no recovery of cash in this case too, in view of the statements of some of the Hawala Dealers and other wit....