TMI Blog2023 (11) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... le 20 of the Constitution of India? HELD THAT:- In Mohan Lal [ 2015 (4) TMI 688 - SUPREME COURT] , the expression possession , it is held, consists of two elements. First, it refers to corpus of physical control and second it refers to the animus or intent which has reference to exercise of self-control. In the context of narcotics laws, a person is said to possess control over the substance when he knows the substance is immediately accessible and exercises dominion or control over the substance. The power and dominion over the substance is, therefore, fundamental. The stand of the DoE as to the constructive possession, will be satisfied only if the dominion and control criteria is satisfied. If the proceeds of crime are in dominion and control of a third person, and not in the dominion and control of the person charged under Section 3, the accused is not in possession of the proceeds of the crime. In the present case, the involvement of an accused may be direct or indirect. Prima facie, there is lack of clarity, as specific allegation on the involvement of the appellant Manish Sisodia, direct or indirect, in the transfer of Rs. 45,00,00,000 (rupees forty five crores on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. Detention or jail before being pronounced guilty of an offence should not become punishment without trial. If the trial gets protracted despite assurances of the prosecution, and it is clear that case will not be decided within a foreseeable time, the prayer for bail may be meritorious - The right to bail in cases of delay, coupled with incarceration for a long period, depending on the nature of the allegations, should be read into Section 439 of the Code and Section 45 of the PML Act. The reason is that the constitutional mandate is the higher law, and it is the basic right of the person charged of an offence and not convicted, that he be ensured and given a speedy trial. When the trial is not proceeding for reasons not attributable to the accused, the court, unless there are good reasons, may well be guided to exercise the power to grant bail. This would be truer where the trial would take years. In view of the assurance given at the Bar on behalf of the prosecution that they shall conclude the trial by taking appropriate steps within next six to eight months, liberty given to the appellant Manish Sisodia to move a fresh application for bail in case of change in ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort, PML Act . 4. CBI has filed two chargesheets, dated 24.11.2022 and 25.04.2023, wherein the appellant Manish Sisodia is named and is facing trial for the offences under Sections 7, 7A, 8 and 12 of the PoC Act and Sections 120B, 201 and 420 of the IPC. DoE has filed a criminal complaint dated 04.05.2023 against the appellant Manish Sisodia for the offences under Sections 3 and 4 of the PML Act. 5. A number of legal issues and questions were raised, and do arise, for consideration, but we would refrain from delving into them in depth and detail. However, there is a bounded discussion in the subsequent portion of the judgment only for deciding the present appeals and the question as to whether the appellant Manish Sisodia is entitled to bail. Nevertheless, for the purpose of record, we will delineate some of them: (a) What is the scope and ambit of the constitutional protection under Articles 74 and 163 of the Constitution of India on the decisions taken by the Council of Ministers? (b) Whether on interpretation of Section 3 of the PML Act, the act/process of generation or the attempt to generate the proceeds of crime falls within the ambit of the expression ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 9-10 wards with a maximum of 27 retail vends which were to be allotted on the basis of auction. Each zone operator was to operate two mandatory vends in each ward. The remaining vends were freehold vends to be operated anywhere within that zone. o Auction, with a reserve price equal to the existing license fee plus sum of potential revenue, estimated VAT and 10% additional fee for increase on year to year ensured maximization of revenue. o The licence fee payable by the wholesaler was raised from Rs.5,00,000/- (rupees five lakhs only) under the old policy to Rs.5,00,00,000/- (rupees five crores only), which is an increase of approximately 10,000%. o The wholesalers were entitled to a standard distribution fee at the rate of 12% of the landed price. The landed price or the ex-distillery price was the lowest price as declared by the manufacturer in any market in India. o The standard distribution fee at the rate of 12%, though higher than the fee under the old policy, was necessary to cover the higher level of investment required, setting up of quality checking system, etc. The fee of 12% had also subsumed several other charges payable under the old policy. The ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r other witnesses relied upon by the DoE were extracted and forced by a threat of arrest, as in the case of Magunta Sreenivasulu Reddy, Butchi Babu and Manoj Rai. Some of the co-accused like Arun Pillai and Sameer Mahendru have retracted from their statements. Raghav Magunta, son of a Member of Parliament of the ruling party in Andhra Pradesh, was forced to make the statement dated 27.07.2023, which is contrary to his earlier statement dated 16.09.2022. Statements obtained from Dinesh Arora, an approver, is weak evidence and in this regard, reliance is placed upon Ravinder Singh v. State of Haryana (1975) 3 SCC 742 . Statement of Dinesh Arora dated 12.07.2023 is contrary to his earlier statement made on 09.04.2023. Allegations regarding the appellant Manish Sisodia s involvement in the grant of licence to Indo Spirit is make belief and a false assertion. Statements obtained from the officers of the Excise Department under Section 164 of the Code, namely, Suman, Sachin Solanki and Arava Gopi Krishna do not implicate the appellant Manish Sisodia. The appellant Manish Sisodia, in his statement dated 14.03.2023, has stated that he had not instructed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to enable supersize profits for wholesale distributors in return for kickbacks and bribes. To start with: o Public comments were invited to the R.D. Committee Report dated 13.10.2020. Some public comments vide emails were prompted by the appellant Manish Sisodia to influence the decision making process. The emails Emails shared by interns of the Delhi Minorities Commission as public comments to the R.D. Committee Report , statement of Zakir Khan Chairperson of the Delhi Minorities Commission dated 29.03.2023 recorded under Section 161 of the Code, and screenshots of WhatsApp chats of Kartikey Azad and Zakir Khan establish the motive. Thus, a facade of transparency and openness in policy making was created. o Rahul Singh Erstwhile Excise Commissioner of NCT of Delhi supports the charge. He was asked to prepare a cabinet note in a particular manner with comments and suggestions of the stakeholders and public. The appellant Manish Sisodia reprimanded Rahul Singh for annexing the opinion of legal experts in the cabinet note. Statement of Rahul Singh21 dated 03.03.2023, under Section 161 of the Code C. Arvind s statement dated 16.02.2023 under Section 164 of the Code is si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o The document/print was taken by Vijay Nair, and handed over to the appellant Manish Sisodia. The appellant Manish Sisodia gave the print to his secretary C. Arvind. o The altered GoM report dated 18.03.2023 consists of 36 pages, if one excludes the index and the title page. Reference is made to the statement of C. Arvind dated 16.02.2023, under Section 164 of the Code. o Screenshots of WhatsApp chats of Butchi Babu dated 20.03.2021, which is prior to submission of the GoM report to the Cabinet on 22.3.2022, refers to the creation of the new post of the Director, Wholesale Operation. Based on the print/document prepared by the liquor group, the GoM report to the Cabinet was modified to create this post. o Further, the minimum wholesaler fee of 5% under the draft dated 15.03.2021, was modified to mandatory and fixed fee of 12% in the altered GoM report submitted to the Cabinet. The GoM did not meet between 15.03.2021 and 19.03.2021. There are neither any deliberations/discussions nor any noting/ calculations by the GoM for increasing the wholesale commission/ fee from 5% to 12%. Reliance is placed on the statement of Arava Gopi Krishna under Section 164 of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arm-twist them. Statement of Jasdeep Kaur Chadha dated 23.08.2022 under Section 50(2) and 50(3) of the PML Act. Pernod Ricard, the largest manufacturer, was directed to do business through Indo Spirit. Reliance is placed upon evidence collected from the mobile chats, including screenshots, as well as statements of an employee Statement of Manoj Rai dated 31.12.2022, under Sections 50(2) and 50(3) of the PML Act. . The plea that the appellant Manish Sisodia was not in possession of the proceeds of the crime, should not be accepted as the expression possession includes constructive possession. A person need not be in actual possession. When a person exercises dominion or control over a thing, directly or indirectly, through another person, he is in possession over the said thing. The appellant Manish Sisodia was a key to the processes and activities dealing with the proceeds of the crime and in using proceeds of the crime. He had created an eco-system for generating, concealing and projecting the tainted money, used subsequently by AAP. The kickback or the proceeds of the crime of Rs.100,00,00,000 (rupees one hundred crore only) were received from the liquo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... izance of any offence punishable under Section 4 except upon a complaint in writing made by (i) the Director; or (ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government. (1-A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed. (2) The limitation on granting of bail specified in sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. Explanation. For the removal of doubts, it is clarified that the expression Offences to be cognizable and non-bailable shall mean and shall be deemed to have always meant that all offences under this Act shall be cognizable offences and non-bailable offences notwithstanding anything to the contrary conta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing a juristic person, it acts through natural persons. The assertion made is that a portion of the proceeds of crime were used for the purpose of the artificial judicial person to fund the election in Goa. The DoE has stated at the Bar, and in the written submissions, that once the quantum of amount used in the election in Goa is ascertained, a decision to consider AAP as an accused under Section 3 will be taken. It is stated by the DoE that the matter in this regard is being processed. In the written submissions, the DoE states: ...some of the PoC (Proceeds of Crime) has been used for the purpose of artificial juridical person through its office bearers in the election funding of the AAP in Goa as well for the benefit of office bearers as indicated above. Once the quantum of amount used for election in Goa is ascertained a decision to consider AAP as accused under Section 3 read with Section 70 of the PMLA (PML Act) shall be taken at that point of time. 12. Thirdly, the assertion in the complaint filed with the DoE that kickback of Rs.100,00,00,000 (rupees one hundred crore only) was actually paid by the liquor group is somewhat a matter of debate. However, there is an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 the offence under this Act in terms of Section 3 is specific to involvement in any process or activity connected with the proceeds of crime which is generated as a result of criminal activity related to the scheduled offence 15. In Mohan Lal (supra), the expression possession , it is held, consists of two elements. First, it refers to corpus of physical control and second it refers to the animus or intent which has reference to exercise of self-control. In the context of narcotics laws, a person is said to possess control over the substance when he knows the substance is immediately accessible and exercises dominion or control over the substance. The power and dominion over the substance is, therefore, fundamental. The stand of the DoE as to the constructive possession, will be satisfied only if the dominion and control criteria is satisfied. If the proceeds of crime are in dominion and control of a third person, and not in the dominion and control of the person charged under Section 3, the accused is not in possession of the proceeds of the crime. It would be a different matter, when an accused, though not in possession, is charged for use, concealment or acquisition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntal principles do not prohibit application of money laundering offence to self-launderers. On dissection of the main part of Section 3, it is held that it postulates three p s, namely, the person, the process or activity, and the product. The process or activity consists of six parts concealment, possession, acquisition, use, projecting or claiming the proceeds of crime as untainted property. The product, that is, the proceeds of the crime, has been defined in Section 2(u) of the PML Act, as a property derived or obtained directly or indirectly by a person as a result of criminal activity relating to a scheduled offence or the value of such property. Section 2(u) of the PML Act reads: proceeds of crime means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property or where such property is taken or held outside the country, then the property equivalent in value held within the country or abroad; As far as person is concerned, it means those who directly or indirectly attempt to indulge; those who knowingly assist, or those who are knowingly a party, or those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kerala Ayurvedic Cooperative Society Ltd. And Ors., 2023 SCC OnLine SC 5, this Court held that: 17. This Court has consistently held that government contracts must be awarded by a transparent process. The process of inviting tenders ensures a level playing field for competing entities. While there may be situations which warrant a departure from the percept of inviting tenders or conducting public auctions, the departure must not be unreasonable or discriminatory. In Centre for Public Interest Litigation v. Union of India, the first-cum- serve policy was held to be arbitrary while alienating natural resources. However, the Court observed that though auction is preferred method of allocation, it cannot be construed to be a constitutional requirement. We will not go into the said aspect. Neither are we examining whether this plea can be taken by the DoE, in view of Articles 74(2) Article 74(2) of the Constitution of India reads: (2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court. and 163(3) Article 163(3) of the Constitution of India reads: (3) The question whether any, and if so what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even years, and shall also be liable to fine; if punishable with imprisonment for life. and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; if punishable with less than ten years' imprisonment. and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both. 21. However, there is one clear ground or charge 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cludes offences for unlawful gains to a private person at the expense of the public exchequer. Reference in this regard is made to the provisions of Sections 7, 7A, 8 and 12 of the PoC Act. 23. Clauses (a) and (b) to Section 7 of the PoC Act 47 Section 7 of PoC Act reads: 7. Offence relating to public servant being bribed. Any public servant who, (a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or (b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or (c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the chargesheet filed by the CBI against the appellant Manish Sisodia: The existing excise policy was changed to facilitate and get kickbacks and bribes from the wholesale distributors by enhancing their commission/fee from 5% under the old policy to 12% under the new policy. Accordingly, a conspiracy was hatched to carefully draft the new policy, deviating from the expert opinion/views to create an eco-system to assure unjust enrichment of the wholesale distributors at the expense of government exchequer or the consumer. The illegal income (proceeds of crime, as per the DoE) would partly be recycled and returned in the form of bribes. Vijay Nair, who was the middleman, a go-between, a member of AAP, and a co-confident of the appellant Manish Sisodia, had interacted with Butchi Babu, Arun Pillai, Abhishek Boinpally and Sarath Reddy, to frame the excise policy on conditions and terms put forth and to the satisfaction and desire of the liquor group. Vijay Nair and the members of the liquor group had meetings on different dates, including 16.03.2021, and had prepared the new excise policy, which was handed over to Vijay Nair. Thereupon, the commission/fee, which wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be made distributor of Pernod Ricard, one of the biggest players in the market. This did happen. 25. In view of the aforesaid discussion and for the reasons stated, we are not inclined to accept the prayer for grant of bail at this stage. 26. However, we are also concerned about the prolonged period of incarceration suffered by the appellant Manish Sisodia. In P. Chidambaram v. Directorate of Enforcement (2020) 13 SCC 791 , the appellant therein was granted bail after being kept in custody for around 49 days In P. Chidambaram v. Central Bureau of Investigation, (2020) 13 SCC 337, the appellant therein was granted bail after being kept in custody for around 62 days , relying on the Constitution Bench in Shri Gurbaksh Singh Sibbia and Others v. State of Punjab (1980) 2 SCC 565 , and Sanjay Chandra v. Central Bureau of Investigation (2012) 1 SCC 40 , that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case. Ultimately, the consideration has to be made on a case to case basis, on the facts. The primary object is to secure the presence of the accused to stand trial. The argument that the appellant therein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffectuates the right to speedy trial, a facet of the right to life, except for a valid ground such as where the trial is delayed at the instance of the accused himself. In our opinion, Section 436A should not be construed as a mandate that an accused should not be granted bail under the PML Act till he has suffered incarceration for the specified period. This Court, in Arnab Manoranjan Goswami v. State of Maharashtra and Others (2021) 2 SCC 427 , held that while ensuring proper enforcement of criminal law on one hand, the court must be conscious that liberty across human eras is as tenacious as tenacious can be. 27. The appellant Manish Sisodia has argued that given the number of witnesses, 294 in the prosecution filed by the CBI and 162 in the prosecution filed by the DoE, and the documents 31,000 pages and 25,000 pages respectively, the fact that the CBI has filed multiple charge sheets, the arguments of charge have not commenced. The trial court has allowed application of the accused for furnishing of additional documents, which order has been challenged by the prosecution under Section 482 of the Code before the High Court. It was stated at the Bar, on behalf of the prose ..... X X X X Extracts X X X X X X X X Extracts X X X X
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