TMI Blog2023 (5) TMI 1309X X X X Extracts X X X X X X X X Extracts X X X X ..... rom justice and repeating the offence, the possibility of tampering with the witnesses and obstructing the court in administration of justice as well as the criminal antecedents of the accused. It is also well settled that the court ought not to go deep into the merits of the matter while considering an application for bail. However, all that needs to be established from the record is the existence of the prima facie case against the accused. The present case revolves around the formation of a New Excise Policy replacing the Old Excise Policy. The purported reason for changing the policy was to bring transparency and to enhance the state excise duty revenue. Besides this, the object was to simplify liquor policy pricing mechanism and checking malpractices. The purpose was also to transform the nature of liquor trade commensurating with the changing structure in the national capital. The applicant was admittedly holding a very high influential position of Deputy Chief Minister having 18 portfolios including the Excise department. The applicant was also undisputedly a prominent leader of Aam Aadmi Party which is having the present government in Government of NCT of Delhi. Thus, the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the applicant, who was admittedly a public servant and holding highest position. The statement of the concerned excise officers has been relied upon by the CBI. This court is restraining itself to make any comments and minute examination of the material on record so as to no prejudice is caused to the applicant or the prosecution during the trial. The gravity and the allegations do not entitle the accused to be admitted to bail - the petitioner fails the triple test in the view of the seriousness of the allegations and his position. The petitioner is not entitled to bail - Petition dismissed. - HON'BLE MR. JUSTICE DINESH KUMAR SHARMA For the Appellant : Mohit Mathur, Sr. Advocate, Dayan Krishnan, Sr. Adv., Vivek Jain, Mohd. Irshad, Mohit Siwach, Karan Sharma, Mohit Bhardwaj, Harsh Gautam, Sheenu, Rishikesh Kumar, Rohit Kaliyar, Mohit Bharadwaj, Sumit Mishra, Rishabh Sharma, Deepak Goyal, Rajat Jain and Aditya Raj, Advocates For the Respondent : S.V. Raju, ASG, Anupam S. Sharma, SPP, Zoheb Hossain, Ankit Bhatia, Prakarsh Airan and Vivek Gurnani, Advs. INDEX S.no Particulars Page No. A. CASE OF C.B.I 2-6 B. BAIL APPLICATION BEFORE THE LD. SPECIAL JUDGE 6-8 C. AVERMENTS MADE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the firm Sh. Sunny Marwah was also a director in companies/firms being managed by the family of Late Sh. Ponty Chadha. Sources have informed that Sh. Sunny Marwah was in close contact with accused public servants and has been regularly giving undue pecuniary advantage to them. 6. The role set up by the CBI against the Applicant is as under: a. The Applicant, until recently, was the Deputy Chief Minister of Delhi and held 18 most important portfolios of the Government as a minister, including finance and excise. b. The Applicant at the relevant time was also heading the GoM constituted for formulating the Excise Policy. There is ample evidence on record to show that Applicant is the chief architect of the conspiracy of tweaking and manipulating the formulation and implementation of the Excise Policy for causing pecuniary advantage and continues to yield unparalleled influence in the government. c. Under the guise of bringing revolutionary changes to the Excise Policy, the Applicant misused his powers and introduced favourable provisions in the new policy. This was done to facilitate the monopolization of wholesale and retail liquor trade in Delhi for the accused persons of the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m. h. With the accused having captured the wholesale market of the two biggest players, the third largest wholesaler i.e., M/s. Mahadev Liquor was coerced through excise officials of Punjab Government, then headed by Party of the Petitioner, to surrender its distribution license when it refused to participate in the conspiracy of facilitating the 6% commission out of 12% profit to South Group. After surrender of license(s), the major manufacturers previously attached with M/s. Mahadev Liquor were pressurized and made to appoint wholesalers linked to South Group, which aspect is under further investigation. This was done to ensure an 85% control over the market share by the South Group. 7. CBI has alleged that the petitioner is the kingpin and architect of the conspiracy as stated above. B. BAIL APPLICATION BEFORE THE LD. SPECIAL JUDGE 8. The bail application moved by the petitioner before the learned Special Judge, CBI was dismissed vide order dated 31.03.2023 wherein the Special Judge inter alia held that the major recommendations made by the Expert Committee are stated to have been for a Govt. corporation owned wholesale model and allotment of maximum two shops per person through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Senior Counsels for applicant have referred to certain observations made in the cases of P. Chidambaram (Supra) and Satender Kumar Antil (Supra) with regard to grant of bail in economic offences cases, but as already discussed, though bail can be granted even in such a case, but it does not mean that the same has to be granted necessarily and this may be one of the considerations, which coupled with certain considerations, can even be made a ground to deny bail to an accused. The observations about economic offences as made in the cases of Y.S. Jagan Mohan Reddy (Supra) and Nimmagadda Prasad (Supra) being relied upon by Ld. SPPs for CBI are rather found more suitable for disposal of the present application, which warrant for dismissal of the application because as held in these cases, the economic offences constitute a class apart and need to be visited with a different approach in the matter of grant of bail. It is so because in such matters deep rooted conspiracies are there and such cases even involved huge losses to the public funds and are, thus, required to be viewed seriously considering their grave nature effecting the economy of the country as a whole and thereby posing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the new excise policy was duly approved by the Group of Ministers and the Cabinet. It was also approved by the Hon'ble Lt. Governor. The Applicant has stated that it is not necessary for the government to accept the recommendation of Ravi Dhawan committee. The petitioner has stated that statements made by the public servants under Section 161 Cr.P.C. cannot be relied upon at this stage. The petitioner has stated that the said alleged 3 legal opinions were taken by private retailers who for their own commercial interests were interested in the status quo in the existing excise policy being continued. The Applicant has stated that there is no material or evidence that Vijay Nair was acting on the instructions or as a representative of the Applicant. It has been stated that the learned Special Judge has misinterpreted the evidence. The Applicant has stated that qua the GoM report a massive hue and cry is made about change of profit percentage between 15.03.2021-19.03.2021. However, the same is of no relevance in the present case as no final decision or GoM report was made on 15.03.2021 which got amended/changed after 3 days by another GoM on 18/19.03.2021. That neither the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy had to be ultimately accepted by Cabinet, various departments of Govt. of NCT of Delhi. That the said policy with the definition of related party was accepted by Cabinet, Finance Department, the Planning Department, the Law department and ultimately by the Hon'ble LG of NCT of Delhi. 13. The Applicant has stated that there is no material on record to show that the petitioner has destroyed the evidence in any manner. The Applicant has submitted that he is entitled to be released on bail and has placed reliance upon P. Chidambaram v. Directorate of Enforcement (2020) 13 SCC 791, Gurcharan Singh v. State (Delhi Administration) (1978) 1 SCC 118, Sunder Bhati v. State, (2022 SCC Online Del 134), Sanjay Chandra v. CBI (2012) 1 SCC 40, Ashok Sagar v State, 2018 SCC OnLine Del 9548, Satender Kumar Antil v. Central Bureau of Investigation and Another, 2022 SCC OnLine SC 825, H.B. Chaturvedi v. CBI, 2010 SCC Online Del 2155. Arguments on behalf of Petitioner 14. Mr. Mohit Mathur and Mr. Dayan Krishnan, Learned Senior Counsels assisted by Mr.Vivek Jain, learned counsel, have submitted that the Applicant is entitled to be admitted to bail. Learned counsels have submitted that the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gally recognised and relevant and is prevalent in many states like Haryana, Rajasthan, Uttar Pradesh and Himachal Pradesh. 16. Learned Senior Counsels have submitted that the plea of the CBI that the recommendations of Ravi Dhawan Committee have been ignored during the formation of the excise policy is without any basis. It has been submitted that the state is not bound to accept the expert committee report in its entirety. The reliance has been placed upon Kerala Bar Hotels Association and Anr. vs. State of Kerala and Ors. (2015) 16 SCC 421. Reliance has also been placed on M/s Prag Ice and Oil Mills and Anr. vs. Union of India (1978) 3 SCC 459. Learned Senior Counsels have submitted that the Supreme Court in Small Scale IndustrialManufacturers Association vs. Union of India and Others (2021) 8 SCC 511 inter alia held that the correctness of the reasons which prompted the government in decision taking one course of action instead of another is not a matter of concern in judicial review and the court is not the appropriate forum for such investigation. Learned Senior Counsels have submitted that several recommendations of the Ravi Dhawan Committee were in fact accepted and included ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roof that the petitioner gave a note to ' Mr. Zakir' nor there is any evidence that the said 'Mr. Zakir' met the Applicant. It has further been submitted that the CBI has relied upon 6 mails out of the total of 14,671 mails. 18. In respect of the legal opinion of Hon'ble Justice K. G. Balakrishnan, former Chief Justice of India, Hon'ble Justice Ranjan Gogoi, former Chief Justice of India and Mr. Mukul Rohatgi, Learned Senior Advocate, former Attorney General, it has been submitted that these opinions were obtained by the persons having a direct monetary interest in the framing of policy and therefore ignoring these opinions cannot be faulted at all. 19. Learned Senior Counsel has further submitted that the CBI has heavily relied on the chats found in the phone of G. Butchi Babu. However, the same cannot be relied upon at all. It has been submitted that even it does not show that the petitioner was in any way involved with the members of the South Group. Learned Senior Counsels have submitted that the CBI has relied upon the testimony of C. Arvind Kumar. The attention of the court has been invited to the contradiction in the testimony of these witnesses. Lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 SCC OnLine Del 276. Learned Senior Counsels have submitted that the petitioner has cooperated with the investigation right from the beginning and has responded to the notice under Section 41 A and Section 91 Cr.P.C. 22. It has been submitted that the petitioner also fulfills the triple test as he is having roots in the society and is not a flight risk. It has further been submitted that the CBI has made a bald allegation regarding influencing the witness without any material on record. Learned Senior Counsels have submitted that the petitioner had always followed the process and had no knowledge of the alleged kickbacks nor there is any material to show that the petitioner was involved in or had any knowledge of the alleged kickbacks received from the South Group and his role has been restricted to the framing of the Excise Policy. Learned Senior Counsels have submitted that there is absolutely no material on record to justify the allegation that the Applicant was the mastermind of any alleged conspiracy or that he was in any way involved in or even had any knowledge of the alleged wrongful activities of the so-called 'South Group'. It has been submitted that there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of zones c. Retail - 4 corporations of Delhi government ran the retail trade- DTDC Delhi Tourism Transportation Development corp.), Delhi State Civil Supplies Corp (DSIIDC), Delhi State Industrial Infrastructure Development Corp.(DSIIDC) Delhi Consumers Cooperative Wholesale Stores (DSCS) 5% distribution/profit margin to be given to distributor (Clause 7.5 (a) of Old Policy; Pg.11) 24. It has been submitted that the old policy was sought to be revised on the following objectives: a. Augmenting State Excise Duty Revenue simplifying Liquor policy pricing mechanism b. Checking malpractices and evasion of duty in liquor taxes c. Transform nature of liquor trade commensurate to the changing structure in national capital 25. Learned ASG has further submitted that the Expert Committee headed by Ravi Dhawan (the then Excise Commissioner) made the following recommendations: a. The Excise Department must secure adequate Government control/regulation of liquor trade. b. Gradual withdrawal of Government presence. c. Entire wholesale operation to come under one Government entity. d. The Committee also examined three models for proposed retail licenses including the existing model containing gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that by framing the new policy, the then excise commissioner was not consulted. In respect of the margin, Learned ASG has submitted that even otherwise, assuming that the minimum cap was 5% and there was no maximum cap in the earlier draft note, there was no guaranteed profit margin above 5% to the wholesaler, which was last modified on 15.03.2021. It has been submitted that however, in the changed draft note there was fixed 12 % return. Learned ASG has submitted that if the manufacturer gave only 5% margin which he could legitimately do, there was no way to recover the kickback already given. It has been submitted that with the change to 12% margin there was a guaranteed return of kickback and the same was done by overriding the expert committee report. Learned ASG has submitted that the conspiracy was executed by the petitioner along with the other accused persons by manipulating and concealing unfavorable opinions received from the public, stakeholders and legal experts after putting Ravi Dhawan Expert Committee report in public. It has been submitted that the petitioner influenced opinions received from the public and planted emails for the purpose of tweaking to show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt to various documents to show that the members of South Group i.e. Arun Pillai, Abhishek Boinpall, Sarath Reddy and G. Butchi Babu were staying at Oberoi, New Delhi during the time when the note concerning GoM was made by the petitioner on 15.03.2021. Learned ASG has invited the attention of the court to the statement of C. Arvind recorded under Section 164 Cr.P.C. wherein he has stated the petitioner has handed over him a draft GoM report in presence of the Chief Minister and Mr. Satyender Jain. This draft GoM report was an amended copy of the 'Data Needed' recovered from hard disk seized from office of Manish Sisodia, created on 15.03.2023 wherein profit margin for wholesaler was enhanced from 5% to 12% and also INR 500 Cr was stated as the eligibility criteria. Learned ASG has further submitted that in the statement Sh. C. Arvind has stated that the petitioner asked him to type and format the draft and this draft GoM report was completed by 19.03.2021 and is of 38 pages. 34. Learned ASG has submitted between 15.03.2021 and 19.03.2021, there were no GoM meetings and this was confirmed by Sh. Arava Gopi Krishna, Excise Commissioner that he has not attended any meeting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ofit margin for wholesalers. Learned ASG has submitted that South Group was to recoup the money by way of increased profit margin (6% from the 12%) from entities controlling the supply of the 3 biggest manufacturers who held 85% of the market. The wholesalers for facilitating the recoupment were M/s. Indospirits, M/s. Brindco Sales Private Ltd and M/s. Mahadev Liquors. It has also been submitted that the definition of 'Related entities' was tweaked in the Excise Policy vide Second recommendation of GoM on 05.04.2021 at the time when the changes were being made in directorship of M/s. Indospirits. Learned ASG has submitted that M/s. Mahadev Liquor was forced to surrender its license so as to ensure that there is absolute control of South Group over the wholesale liquor market in Delhi. Learned ASG submitted that the Applicant if released on bail is likely to influence the witnesses in Punjab where M/s. Mahadev Liquor is its running distilleries. Learned ASG has submitted that there was a payment of INR 100 Crores and the persons who gave Rs. 100 crores were to be benefitted in the following manner. (i) INR 90-100 crores were paid by South Group to Vijay Nair, Media Communica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 20.05.2021 of Sisodia; confidential Note for the Council of Ministers; unsigned copy of GoM Report dated 22.03.2021, etc. 38. Learned ASG submitted that the petitioner does not fulfill the criteria for grant of bail as he enjoys the position of power and also having political clout. It has further been submitted that the Applicant had willfully destroyed the evidence including his mobile phone and the file of the excise department containing the cabinet note dated 28.01.2021 as it still remains missing. It has been submitted that the witnesses in the present case are mostly public servants and they are likely to be influenced. It has further been submitted that the Applicant is not entitled to parity as he is the main accused and kingpin of the alleged conspiracy. Learned ASG has submitted that it is a huge scam for which the further investigation is underway. D. FINDINGS AND ANALYSIS 39. The case set-up by the prosecution is that the Applicant is a prominent leader of the Aam Aadmi Party, besides being Excise Minister and Dy. Chief Minister, having 18 portfolios, allegedly entered into the conspiracy with several other persons to amend the Excise Policy with a motive to deriv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to suggest that changes in particular increase of profit margin from 5% to 12% was made at the instance of the South Group . However, CBI has alleged that though the Group of Ministers was formed just as a show of but actually no minutes of meeting were prepared and there is no material on the record on the basis of which the profit margin was increased from 5% to 12%. 42. CBI has also alleged that the petitioner influenced the exercise department to grant license to M/s. Indo Spirits Limited despite the pendency of complaints of cartelisation and black marketing. The license was granted to M/s. Indo Spirits Limited in violation of all the existing rules. CBI has also alleged that 2 of the 3 shareholders in M/s. Indo Spirits Limited are from the South Group holding 65% share. CBI has also alleged that the Applicant, to execute the conspiracy, introduced favourable provisions to facilitate the monopolisation of liquor trade in Delhi by the South Group . The case of CBI is that South Group manipulated the policy in a manner so as to monopolise the liquor trade in Delhi by the South Group . The case of the CBI is that against the increase in margin from 5% to 12% the South Group was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was placed into the public domain and the opinion of the public was called. It is also the case of the petitioner that the legal opinions of 3 prominent persons were in fact procured by the interested party and therefore the government was not bound to consider the same. The case of the petitioner is also that though the government was not bound to accept the Expert Committee Report but still they followed the recommendations which were found to be good. The case of the Applicant is also that the government has no business to be in the trade of liquor and therefore, it was a conscious decision on part of the government to be out of the liquor trade. The petitioner has also stated that there is no material on record to suggest that he intimidated or threatened any of the officers nor he had interfered in the grant of license to M/s. Indo Spirits Limited. The petitioner has also stated that even the statement of the excise commissioner Mr. Arava Gopi Krishna is that the instruction was on his part was to grant the license in accordance with the rules. 46. The plea of the petitioner is also that no fault can be found in the increase of margin from 5% to 12%. It has been submitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice of these facts which illustrate the extreme inadvisability of any interference by any court with measures of economic control and planning directed at maximising general welfare. It is not the function of the Courts to obstruct or defeat such beneficial measures devised by the Government of the day Courts cannot pass judgments on the wisdom of such actions, unless actions taken are so completely unreasonable that no law can be cited to sanction them. 32. As already stated above, that order has been withdrawn because the purpose has been achieved. Even if that purpose had not been achieved, the order could be withdrawn if it became evident to the Government that such control would not achieve the desired object. It is extremely hazardous for courts to enter the sphere of experimentation in matters of economic policy which must be left to the Government of the day. 71. It may seem unjust and oppressive, yet be free from judicial interference. The problems of government are practical ones and may justify, if they do not require, rough accommodations, illogical, it may be, and unscientific. But even such criticism should not be hastily expressed. What is best is not always discern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, is the subject of judicial review. The scope of judicial review of the governmental policy is now well defined. The courts do not and cannot act as an appellate authority examining the correctness, stability and appropriateness of a policy, nor are the courts advisers to the executives on matters of policy which the executives are entitled to formulate. 51. Learned counsel has submitted that the Applicant's case is that the rule is that bail should not normally be withheld as a punishment if after taking into consideration the other factors, the accused is entitled to grant of bail. Reliance has been place upon Runu Ghosh v. State(CBI), 1996 (39) DRJ 221, wherein it has inter alia been held as under: 5. Bail should normally not be withheld. as a punishment if, after taking into consideration other factors, the accused is entitled to the grant of bail. Bail and not jail is the normal rule. The two paramount considerations, namely, likelihood of the accused fleeing from justice and his tampering with prosecution evidence relate to ensuring fair trial of a case in the course of justice. Due and proper weight should be bestowed on these two factors apart from others. There canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. 55. In the economic offences' cases, the courts have time and again stated that economic offences constitute a separate class and required to be handled with a different approach. The supreme Court in Y.S.Jaganmohan Reddy vs. CBI (2013) 7 SC 439 has inter alia held as under: 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. 35. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the evidence establishing the guilt of the accused beyond reasonable doubt. 25. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep-rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as a grave offence affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. 57. Thus, on the basis of law as has crystallised is that at time of considering an application for bail, the courts is required to take into account certain factors such as existence of prima facie case against the accused, the gravity of the allegations, the position and status of the accused, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of tampering with the witnesses and obstructing the court in administration of justice as well as the criminal antecedents of the accused. It is also well settled that the court ought not to go deep into the merits of the matter while considering an application for bail. However, all that needs to be established from the record is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch indicate towards malafide. 59. This court has no doubt in its mind that it is for the executive /elected government to decide the policies. There is also no doubt that the Government is not bound to accept the recommendation of any expert committee report. The government is answerable to the public at large and they are duty bound to frame the policies which to their understanding is best for the welfare of the public. The economic policies framed by the government also fall within their domain and the courts have to be very slow in interfering into the same. However, the court cannot interfere into the same, only if such policy decisions have been taken bonafidely and in the interest of the public. But if such policy decisions or schemes are alleged to have been taken malafidely or have the taint of any corrupt practice then certainly such decisions are required to be enquired into by concerned investigating agencies and examined by the court. 60. In the present case, the allegation is that the New Excise Policy has been brought in and certain provisions have been added to render undue advantage to a particular group against the illegal gratification having been received from t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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