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TMI Blog2024 (5) TMI 1344X X X X Extracts X X X X X X X X Extracts X X X X ..... tigation ('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 investigation in this case, since the offences for which RC was registered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 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 undue pecuniary benefits to the conspirators in the liquor trade. It is claimed that kickback ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duri, 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 an accused by way of fourth supplementary prosecution complaint filed on 04.05.2023. SUBMISSIONS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 that counting these applications as a factor for delay in trial is, on the face of it, incorrect, arbitrar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 tendered a categorical assurance to the Hon'ble Supreme Court that the trial will be concluded within 6-8 months, from 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 months after the fourth supplementary complaint dated 04.05.2023. Therefore, it is argued that the learned Trial Court vide o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 meetings of the Delhi Government. 29. It is further argued that Sh. Manish Sisodia and his associates were involved in destruction of evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 learned Trial Court in its order dated 30.04.2024 while rejecting the bail application of Sh. Manish Sisodia. 31. Learned Special Counsel also submits that the applicant had also filed an application se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the search lists containing the details of such documents had already been provided to the accused persons on the date of the search itself. 37. Mr. Ripudaman Bhardwaj, Learned Special Public Prosecutor for the CBI a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral 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 dismissed by the Hon'ble Apex Court, he was granted liberty to approach the learned Trial Court afresh for seeking 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, after taki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rits 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 also argued that the merits of the case have already been decided once by the Hon'ble Apex Court, and the phrase 'on merits' as appearing in paragraph 29 would mean the merits of the fresh bail application only, which has been filed on the ground of delay in trial. 45. Lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 ones dismissed by the Hon'ble Supreme Court. (iii) Thirdly, it was also observed that the observations made in the judgment dated 30.10.2023, either way, were only for the purpose of disposal of those appeals. (iv) And fourthly, it was directed that while considering the fresh bail applications, the learned Trial Court shall also take into acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused 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 Seeking permission to meet his wife physically for five days in custody. The said application was allowed by the learned Trial Court vide order dated 10.11.2023 2. 05.12.2023 Seeking permission to sign some affidavit and Vakalatnama The said application was allowed by the learned Trial Court vide order dated 05.12.2023. 3. 22.12.2023 Application under Section 207 Cr. P.C. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 allowed by the learned Trial Court vide order dated 25.08.2023 2. 12.10.2023 Application seeking supply of missing digital data/ pen drive/HD under Sections 207/208 of Cr. P.C. The said application was allowed by the learned Trial Court vide order dated 11.12.2023 3. 21.11.2023 Application seeking supply of missing/ legible copies of documents under Sections 207/208 of Cr.PC. The said application was allowed by the learned Trial Court vide order dated 21.11.2023 4. 19.01.2024 Application for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble 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 accused persons, it is but natural that each accused, who may have a different advocate will have to be provided with a separate set of chargesheet and documents. This right, to be supplied with the relevant documents before the stage of framing of charge, is enshrined in Section 207 and 208 of Cr. P.C., which provide as under: "207. Supply to the accused of copy of police report and other documents. In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:- (i) t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 an accused: "This court is of the opinion that while furnishing the list of statements, documents and material objects under Section 207/208 Cr. P.C., the magistrate should also ensure that a list of other materials, (such as statements, or objects/ documents seized, but not relied on) should be furnished to the accused. This is to ensure that in case the accused is of the view that such materials are necessary to be produced for a proper and just trial, she or he may seek appropriate orders, under the Cr. P.C. (Section 91 referred at footnote), for their production during the trial, in the interests of justice. It is directed accordingly; the draft rules have been accordingly modified." 60. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 has also been questioned by Ld. Counsel representing the said accused, but it will be a matter of trial only. With these observations, this application stands disposed off." 64. The record in the case registered by CBI, including the order sheets of the learned Trial Court, further reveals the following facts: (i) 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. (ii) In view of the same, the learned Trial Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 in custody, signing of Vakalatnama in custody, meeting their family members, permission to carry with them articles such as kettle, reading material, custody parole etc. The list can be endless as the circumstances and situations an undertrial faces cannot be foreseen. These permissions can only be granted by the learned Trial Courts and cannot be termed as frivolous. Different 'Players' and 'Factors' Affecting the Speed of Trial 68. While the prosecution as well as the defence are two of the key players playing a crucial role in the trial process, the speed of a trial cannot be solely attributed to the actions of either of them. Rather, the speed of a trial is influenced by a multitude of elements and a combination of various factors, including the complexity of the case, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bile 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 states, have also added to the length of investigation spread over different states of the country, leading to filing of supplementary chargesheets/prosecution complaints. 74. In light of these realities, it is understandable that the commencement or conclusion of trial may take longer time than anticipated initially. 75. Further, in case the learned Trial Court would not have given the accused persons an opportunity or would have allowed their applications for supply of copies, it would have adversely affected the rights of the accused persons. For the last six months, the accused persons have been moving applications on various grounds for supply of copies or inspection of record. 76. In such circumstances, it will be travesty of justice to hold that the delay was on part of Directorate of Enf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 investigation. There are sixteen accused who have been charge-sheeted in the case till date and conclusion of hearing on charges on behalf of prosecution as well as on behalf of these sixteen accused may take a considerable time and a possibility can not be ruled out that any of the other offenders or suspects is made to join investigation in the meanwhile or any supplementary chargesheet is filed again consequent upon his arrest and on conclusion of investigation qua him. However, then the court may stop or halt the hearing on charges till the copies of such supplementary chargesheet and documents filed and relied upon in support thereof are supplied to all the accused persons and the same are scrutinized. The accused shall also get an opportunity in such a situation to address their arguments qua the above documents or evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd 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 Enforcement as they are now in the process of inspection of un-relied documents in the malkhana of the concerned Investigating Agency. 84. However, this Court is also of the opinion that for the purpose of arguments on charge, there was no need to completely inspect all the un-relied documents as they can be used only at the stage of trial which has not commenced yet, and only a list of un-relied documents is to be provided to the accused persons before arguments on charge, as per the judgment of Hon'ble Apex Court in case of In Re: To issue certain guidelines regarding inadequacies and deficiencies in criminal trial (supra). Be that as it may, the order of the learned Trial Court dated 07.03.2024 allowing the physical inspection of un-relied documents by the accused persons has not been challenged by the Directorate of Enforcement, and thus, the counsels ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution 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 proceeding to assess the present case on merits, it shall be necessary to consider the principles of law, which govern the grant of bail, both in relation to the case registered by CBI for offences under the Prevention of Corruption Act, and by Directorate of Enforcement for offences under the PMLA. 90. The principles and factors governing grant of regular bail under Section 439 of Cr. P.C., as summarised by the Hon'ble Supreme Court in case of Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14 SCC 496 are as follows: "9. ...(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and stan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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, it will be relevant to take note of the observations of Hon'ble Apex Court in case of Vijay Madanlal Choudhary v. Union of India 2022 SCC OnLine SC 929, on the satisfaction of mandatory twin conditions under Section 45 of PMLA as well as gravity of offence of money laundering, which are extracted hereunder: "387. ...Now, the provision (Section 45) including twin conditions would apply to the offence(s) under the 2002 Act itself. The provision post 2018 amendment, is in the nature of no bail in relation to the offence of money-laundering unless the twin conditions are fulfilled. The twin conditions are that there are reasonable grounds for believing that the Accused is not guilty of offence of money-laundering and that he is not likely to commit any offence while on bail. Considering the purposes and objects of the legislation in the form of 2002 Act and the background in which it had been enacted owing to the commitment made to the international bodies and on their recommenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 offence and he is not likely to commit any offence while on bail. It is needless to say that as per the statutory presumption permitted under Section 24 of the Act, the Court or the Authority is entitled to presume unless the contrary is proved, that in any proceedings relating to proceeds of crime under the Act, in the case of a person charged with the offence of money laundering under Section 3, such proceeds of crime are involved in money laundering. Such conditions enumerated in Section 45 of PML Act will have to be complied with even in respect of an application for bail made under Section 439 Cr. P.C. in view of the overriding effect given to the PML Act over the other law for the time being in force, under Section 71 of the PML Act." (emphasis supplied) 96. At the stage of considering the bail application of a person, who is accused of committing the offence of money laundering under PMLA, the Court is not required to conduct a mini-trial to establish his 'guilt' as provided under Section 45. Instead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 formulated and implemented in a way so as to allow illegal gains to certain persons/entities, against advance kickbacks of about Rs. 100 crores received from them, which were later utilised by the Aam Aadmi Party in the Goa Assembly Elections. 100. Thus, it is alleged that Sh. Manish Sisodia was one of the key conspirators in formulating, conceptualizing and implementing the various processes and activities in dealing with the proceeds of crime including creating an entire ecosystem for generating, concealing, projecting as untainted, possessing and using the proceeds of crime. Timeline of Events reflecting the Role of Applicant Sh. Manish Sisodia 101. For a clear understanding, the timeline of the events that transpired in this case, as alleged by the Central Bureau of Investigation and Directorate of Enforcement in their chargesheets and the fourth supplementary prosecution complaint respectively, on the basis of investigation conducted so far, is encapsulated below: DATE EVENT & ROLE OF THE PRESENT APPLICANT SH. MANIS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... embers of the 'South Group' were present in Delhi and were staying at Oberoi Hotel. The records of the hotel have been collected by the investigating agencies. 15.03.2021 The draft GoM Report running into 30 pages, which was modified on 15.03.2021, contained the proposed profit margin for wholesalers as 5% only. This document was recovered from the personal computer of Sh. Manish Sisodia during investigation. 15.03.2021 to 16.03.2021 The Business centre of Oberoi Hotel was used by the South Group representatives, to obtain print-out of a 36 page document, which is evident from the records/bills of Oberoi Hotel. This 36 page document was allegedly the proposed draft of the GoM report. 18.03.2021 ● Sh. C. Arvind, Secretary to Sh. Manish Sisodia was called by Sh. Manish Sisodia to the official residence of Chief Minister Sh. Arvind Kejriwal, and was handed over a document by him. He was asked to prepare the fresh draft of the GoM Report on the basis of the said document. ● As per the statement of Sh. C. Arvind, this document contained 38 pages, i.e. 36 pages plus 1 title page plus 1 index page. ● As per the case of prosecution, this matches with the 36 page ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the Excise Policy of Delhi. In this meeting, Sh. Vijay Nair assured them that he would get them the control/share in maximum L1s and ensure that big brands like Pernod Ricard choose their L1 as whole distributors. 05.07.2021 The final Excise Policy was uploaded on the website of Delhi Excise Department. 15.08.2021 Sh. Vijay Nair met Sh. Benoy Babu and Sh. Manoj Rai, employees of Pernod Ricard i.e. one of the leading manufacturers of liquor in Delhi, at Mumbai. Sh. Vijay Nair introduced himself as Officer on Special Duty in the Excise Department, and directed them that Pernod Ricard must engage M/s Indo Spirits for its wholesale business, instead of Brindco. This was revealed through statements dated 14.09.2022 and 17.11.2022 of Sh. Benoy Babu and Manoj Rai, as well as certain screenshots of chats retrieved from the mobile phone of Sh. Benoy Babu. 20.09.2021 A dinner was hosted at Taj Mansingh Hotel by Pernod Ricard for South Group cartel, which was attended by Sh. Sameer Mahendru, Sh. Sarath Reddy, Sh. M.S. Reddy, Sh. Manoj Rai, Sh. Benoy Babu, Sh. Arun Pillai, Sh. Abhishek Boinpally and others. This dinner was meant to acknowledge the agreement regarding wholesale dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... room and have discussions. 105. This Court has also perused the statement of approver Sh. Dinesh Arora, which reveals that Sh. Manish Sisodia had informed him that Sh. Vijay Nair would call him and coordinate and cooperate with him for whatever work is required to be done in the matter of excise policy, and that he could trust Sh. Vijay Nair. 106. A perusal of the statement of co-accused Sh. Arun R. Pillai also discloses that Sh. Vijay Nair had the support and sanction of Sh. Kejriwal and Sh. Manish Sisodia for all his activities related to the Excise Policy 2021-22. The statement of Sh. Butchi Babu also reveals that Sh. Vijay Nair was acting on behalf of Sh. Kejriwal and Sh. Manish Sisodia and was working on their behalf on the Excise policy. During the course of investigation, a few provisions of the liquor policy were also found in the WhatsApp chats of Butchi Babu, sent by Sh. Vijay Nair, before the policy was finalized by the Group of Ministers headed by Sh. Manish Sisodia. 107. Thus, there is sufficient material on record, at this stage to prima facie show that Sh. Vijay Nair was acting on behalf of the applicant Sh. Manish Sisodia as well as Aam Aadmi Party in demanding a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y passed these instructions to Sh. Kartikey Azad, an intern at the Delhi Minorities Commission. Sh. Khan also admitted that he was unfamiliar with the contents of the Expert Committee report and the details of the auction or lottery systems. In his subsequent statement dated 28.03.2023, Sh. Khan has also disclosed that Sh. Manish Sisodia had provided him with a written note containing the comments to be sent to the Excise Department email IDs. 111. Sh. Kartikeya Azad, the head of interns at the Delhi Minorities Commission, also gave his statement on 24.03.2023. He recounted that on 14.01.2021, Sh. Zakir Khan had called him and other interns to his office, where he had instructed them to send emails to Sh. Manish Sisodia and the Excise Department using pre-written content provided by Sh. Khan. This content, containing recommendations for the Delhi Excise Policy, was shared in the WhatsApp group 'DMC Jan. 21'. Following Sh. Khan's instructions, Sh. Azad had directed the interns to send the emails and he had subsequently collected screenshots of the sent emails, which he had thereafter forwarded to Sh. Khan via WhatsApp. 112. Statements of other interns also corroborate the accounts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted its report on 13.10.2020, which was published on the Excise Department's website for public comments on 31.12.2020, with a deadline of 21.01.2021. Subsequently, the Group of Ministers was constituted on 05.02.2021. 118. Between this period, the prosecution alleges that Sh. Manish Sisodia had deliberately altered a draft Cabinet note to exclude the opinions of three legal experts - including one former Attorney General of India and two former Judges of the Hon'ble Supreme Court, which was obtained by Delhi ALCOBEV Retailers Association and mailed to the email ID of Excise Department. These legal experts had recommended maintaining the existing excise policy, which would have hindered Sh. Manish Sisodia's desire to introduce a new policy, allegedly in conspiracy with the South Group. 119. The investigation also revealed that on 28.01.2021, Sh. Rahul Singh, the then Excise Commissioner, and other officials had submitted the draft Cabinet note containing these legal opinions. However, Sh. Manish Sisodia had allegedly scolded him for including the legal opinions and subsequently had him transferred on 01/02.02.2021. Following this, Sh. Sanjay Goel, the new Excise Commissioner, sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upment of kickbacks for the South Group. As alleged, Sh. Manish Sisodia had expedited the process of issuing the L-1 license for M/s Indo Spirits. 126. This allegation is prima facie supported by the statement of Sh. Arava Gopi Krishna, then Excise Commissioner, who has disclosed that Sh. C. Arvind as well as Sh. Manish Sisodia had firmly instructed him to ensure that the license was granted to M/s Indo Spirits as soon as possible. The statement of Sh. C. Arvind also reveals that he was asked by Sh. Manish Sisodia to ensure that the issue regarding the file of M/s Indo Spirits is resolved. This is further corroborated by the statement of Sh. Narinder Singh, the then Assistant Commissioner (IMFL), who has disclosed that Sh. Arava Gopi Krishna had called him on 05.11.2021 and asked him to grant the license to M/s Indo Spirits on priority basis. 127. As per prosecution, this allegation can also be materially corroborated with the way the file of M/s Indo Spirits was cleared on the same day and formal order of allocation of license was issued on 08.11.2021. Creation of Uneven Level Playing Field 128. By formulation of the liquor policy in question, an uneven level playing field was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on a letter written by the Lt. Governor of Delhi. 133. It is alleged that the two handsets used by the applicant prior to 22.07.2022 have been destroyed by him. In his statement, Sh. Manish Sisodia claimed that his previous mobile handset was damaged, and thus, he had to change the same. However, he was unable to provide the whereabouts or any details regarding the phone he used prior to 14.03.2023. 134. In this Court's opinion, such acts raise significant concerns about the deliberate destruction of potential electronic evidence, which could have been crucial to the investigation. 135. Therefore, this Court cannot rule out the potential of the applicant to destroy and tamper with the evidence, and influence witnesses in future, if released on bail, which is based on the reasonable apprehension of the prosecuting agency which is derived from the previous conduct of the accused available on record. Role of Applicant Sh. Manish Sisodia in Commission of Offence of Money Laundering under Section 3 of PMLA 136. The case of Directorate of Enforcement, in a nutshell, is that being the concerned Minister responsible for formulation of the Excise Policy, the applicant Sh. Manish Siso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portion of the criminal complaint filed by the DoE dated 04.05.2023, reads: "One of the reasons given by Sh Manish Sisodia is to compensate the wholesaler for increased license fee from Rs 5 lacs to Rs. 5 Cr. During this policy period, 14 LI licences were given by Excise Department, by raising the license fee for LI to Rs. 5 Cr in the entire period of operation of the Delhi Excise Policy 2021-22, the Govt. has earned Rs. 75.16 Cr from the license fee of LI (as per Excise department communication dated 11.04.2023) (RUD 34). On the other hand the excess profit earned by the wholesalers during this period is to the tune of Rs. 338 Cr. (7% additional profit earned due to increase from 5% to 12%, Rs. 581 Cr being the total profit of LI as informed by Excise department). Therefore there is no logical correlation between the license fee increase and the profit margin increase. Whereas this excess profit margin benefit could have been passed on to the consumers in form of lower MRP. Contrary to the claim that the policy was meant to benefit the public or the exchequer, it was rather a conspiracy to ensure massive illegal gains to a select few private players/individuals/ entities." 139. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mi Party in Goa. 142. The connection of Sh. Manish Sisodia with the alleged kickbacks was a result of the new Excise policy created by Sh. Manish Sisodia and therefore, it will be a matter of trial regarding the nexus between Sh. Vijay Nair and the allegation that the kickbacks were received by Sh. Vijay Nair at behest of Sh. Manish Sisodia, in lieu of the kickbacks which were received on his behalf by Sh. Vijay Nair and used for Goa Elections later on. To Sum Up: The Modus Operandi ➔ Sh. Manish Sisodia, was the Deputy Chief Minister of Delhi and the Minister with 18 portfolios, including the Excise Department. ➔ An Expert Committee was constituted by Sh. Manish Sisodia for the purpose of 'reforming the liquor trade in Delhi'. ➔ The Report submitted by the Expert Committee included suggestions such as: (i) handing over wholesale operations of entire Delhi to one Government entity, (ii) opening of private liquor vends through lottery system instead of auction/bidding system to prevent carterlization, etc. ➔ These suggestions of the Expert Committee Report were against the pre-determined agenda of Sh. Manish Sisodia. Therefore, the report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try barriers, such as non-refundable participation fee and very high earnest money deposit, were created even for Retail Zone License bidding/auction. ➔ How did this policy work to the benefit of select individuals and large businesses? (a) Investigation revealed that a firm namely M/s Indo Spirits was created, in which 65% of the shares were given to the members of South Group. Sh. Manish Sisodia ensured that M/s Indo Spirits was firstly made the wholesale distributor of biggest liquor manufacturer in Delhi i.e. Pernod Ricard, and secondly, that it was granted the whole distributor license (L-1) under the new excise policy. (b) In the new policy, the profit margin of wholesale distributors (L-1) was increased from 5% to 12%, without any reasonable justification. This ended up in wholesale distributors earning additional profits of Rs. 338 crores in a span of 10 months. (c) During this period, total profit earned by one wholesale distributor i.e. M/s Indo Spirits alone was Rs. 193 crores out of Rs. 581 crores. WHETHER CASE FOR GRANT OF BAIL IS MADE OUT, ON MERITS? 143. In the initial discussion of this judgment, this Court has referred to the principles which would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e trial of this case are public servants at various levels, who have given statements against Sh. Manish Sisodia under Section 50 of PMLA and Section 161/164 of Cr. P.C., and the possibility of the applicant trying to influence the witnesses, if released on bail cannot be ruled out. While observing so, this Court also remains conscious of the fact that further investigation qua some other accused persons is still underway. As far as the applicant being flight risk is concerned, even if that may prima facie not be apparent from the record, however, passing the triple test would mean that all the conditions of the triple test should be satisfied. The other two conditions of the triple test regarding influencing the witnesses or tampering with evidence have not been satisfied since Sh. Manish Sisodia in the past has allegedly destroyed evidence and there is prima facie material on record with the investigating agency in this regard. 147. Therefore, this Court is of the view that the applicant Sh. Manish Sisodia fails to satisfy the triple test for grant of bail. 148. As far the offence of money laundering under PMLA is concerned, Section 45 of PMLA provides that for the purpose of g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the said firm. It had also come on record, on the basis of statements of witnesses, that Sh. Manish Sisodia had directed the officials of Excise Department to ensure that L-1 license was granted to M/s Indo Spirits. 151. Thus, it becomes prima facie apparent that by committing the above-mentioned acts, the applicant Sh. Manish Sisodia was actively involved in formulation and implementation of various processes and activities in dealing with proceeds of crime, thereby committing the offence of money laundering as defined under Section 3 of PMLA, which needless to say, also includes direct or indirect attempts to indulge or knowingly assisting or being a part of any process or activity connected with the proceeds of crime. 152. Therefore, the applicant Sh. Manish Sisodia also fails to cross the bar and rigours of Section 45 of PMLA as this Court cannot arrive at a conclusion that Sh. Manish Sisodia is prima facie not guilty of offence alleged against him on the basis of the material placed before this Court. 153. It is again clarified and reiterated, at cost of repetition, that at the stage of grant of bail, this Court has to only prima facie go through the material and not cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re not able to appreciate such a casual approach while granting bail in a case which has the effect of undermining the trust of people in the integrity of the education system in the State of Bihar." (emphasis supplied) 159. Similarly, in case of Tarun Kumar (supra), while dismissing the bail of the accused therein, it was held by the Hon'ble Apex Court that the agencies have to take a lot of minute exercise in cases involving intricate nature of transactions and that the economic offences are are to be visited with a different approach. The relevant observations are extracted hereunder: "21. The apprehension of the learned counsel for the appellant that the trial is likely to take long time and the appellant would be incarcerated for indefinite period, is also not well founded in view of the observations made by this Court in case of Vijay Madanlal (supra). On the application of Section 436A of the Code of Criminal Procedure, 1973, it has been categorically held therein that: - "419. Section 436A of the 1973 Code, is a wholesome beneficial provision, which is for effectuating the right of speedy trial guaranteed by Article 21 of the Constitution and which merely specifies t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest..." 23. With the advancement of technology and Artificial Intelligence, the economic offences like money laundering have become a real threat to the functioning of the financial system of the country and have become a great challenge for the investigating agencies to detect and comprehend the intricate nature of transactions, as also the role of the persons involved therein. Lot of minute exercise is expected to be undertaken by the Investigating Agency to see that no innocent person is wrongly booked and that no culprit escapes from the clutches of the law. When the detention of the accused is continued by the Court, the courts are also expected to conclude the trials within a reasonable time, further ensuring the right of speedy trial guaranteed by Article 21 of the Constitution." 160. In case of Satyender Kumar Jain v. Directorate of Enforcement, SLP (Crl) 6561/2023, the Hon'ble Apex Court has observed that the provision for grant of bail, on the basis of delay in trial, is already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -determined goal. The applicant had called public comments on the report submitted by the Expert Committee for the formulation of the liquor policy, ostensibly to incorporate the views and suggestions of the common citizens of Delhi, and other stakeholders, in the upcoming Excise Policy. However, as per the case of CBI and other material on record and statement of many witnesses recorded at this stage, point out that rather than genuinely seeking opinion of the common citizens of Delhi, the applicant had rather orchestrated a scheme as per material collected by the prosecution, whereby some pre-drafted emails, containing specific suggestions aligned with his own interests, were sent to the designated feedback email addresses. These emails were sent under the guise of public feedback or opinion, by individuals who were instructed to do so by the applicant Sh. Manish Sisodia himself. It has also come on record during investigation that out of more than 14,000 emails received as public feedback only those pre-decided emails were placed before the Council of Ministers/Group of Ministers which were pre drafted by Sh. Manish Sisodia and made to sent to his own people. 165. In this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h they have placed material on record and will be tested during trial. 169. To sum up, in a nutshell, the alleged acts of corruption in this case originated from the applicant Sh. Manish Sisodia's desire to create a liquor policy that would benefit selected individuals, in return for substantial amounts of advanced kickbacks, which the prosecution claims to be around Rs. 100 crores, part of which were allegedly used for Goa Elections as per new material collected by prosecution. This was one of the steps towards ensuring that it was portrayed to the general people that the New Excise policy reflected and was based on the will of the people of Delhi whereas in fact it was purely based on the will of Sh. Manish Sisodia and the co-accused persons who were part of the alleged conspiracy. Judicial Resolve Against Corruption while dealing with applications for bail when investigation is pending 170. While public figures will be accountable for the decisions they make, the Courts have to respond to cases of corruption and money laundering and have to send a strong message that there is no culture of a laid back approach by the Courts in dealing with such cases. 171. Even while grantin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the paragraph nos. 143 to 161, this Court is of the opinion that the applicant Sh. Manish Sisodia has failed to make out a case for grant of bail at this stage. 178. Since the matter was argued on merit by the learned Senior counsel for the applicant Sh. Manish Sisodia and at length by the learned counsels for Directorate of Enforcement and CBI, and since this Court has reached a conclusion that the judgment of Hon'ble Supreme Court dated 30.10.2023 is clear that the case has to be decided on merits also and not solely on the basis of delay in trial, without being influenced by the order of Hon'ble Supreme Court, this Court has decided the present bail applications in view of extensive arguments on delay as well as on merits regarding the role of Sh. Manish Sisodia, so that justice is not only done but is seem to be done. 179. Accordingly, the present applications seeking grant of regular bail are hereby dismissed. 180. It is, however, clarified that the observations made in this judgment are prima facie in nature which have been made with the sole purpose of deciding the present bail applications at this stage, and the same will not in any manner affect the merits of the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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