New Delhi:The Supreme Court on Monday junked two bail pleas by Aam Aadmi Party (AAP) leader and former Delhi deputy chief minister Manish Sisodia in a money laundering and corruption case related to the Delhi excise policy case. A bench comprising justices Sanjiv Khanna and SVN Bhatti denied bail to Sisodia, however, it said, “The involvement of an accused may be direct or indirect. Prima facie, there is a lack of clarity, as to specific allegation on the involvement of the appellant--Manish Sisodia, direct or indirect--in the transfer of Rs 45 crore only to AAP for the Goa elections is missing."
The bench observed that there is one clear ground or charge in the complaint filed under the Prevention of Money Laundering Act (PMLA), which is free from perceptible legal challenge and the facts as alleged are tentatively supported by material and evidence, and this discussion is equally relevant for the charge-sheet filed by the CBI under the Prevention of Corruption Act and IPC.
The bench recapitulated the facts as alleged, which stated establish an offence under Section 3 of the PML Act and the PoC Act: In 10 months, during which the new excise policy was in operation, the wholesale distributors had earned Rs 5.81 crore as the fixed fee. It further cited that the one-time licence fee collected from 14 wholesale distributors was about Rs Rs 70 crore; and, under the old policy, a 5% commission was payable to the wholesale distributors/licensees.
Denying bail to Sisodia, the bench said for the sake of clarity, without making any additions, subtractions, or a detailed analysis, “We would like to recapitulate what is stated in the chargesheet filed by the CBI against the appellant”. The CBI alleged that 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," the bench cited CBI’s allegation.
The bench said it is not inclined to accept Sisodia’s prayer for grant of bail at this stage while citing the CBI’s allegation in the chargesheet. “The excess amount of 7% commission/fee earned by the wholesale distributors of Rs 338 crore constitutes an offence as defined under Section 7 of the PoC Act, relating to a public servant being bribed. (As per the DoE, these are proceeds of crime). This amount was earned by the wholesale distributors in 10 months. This figure cannot be disputed or challenged. Thus, the new excise policy was meant to give windfall gains to a select few wholesale distributors, who in turn had agreed to give kickbacks and bribes," said the chargesheet.
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The CBI alleged that the policy favoured and promoted cartelisation and large wholesale distributors with high market share because of extraneous reasons and kickbacks were ensured to earn exorbitant profits.
Pronouncing the judgment in the morning, Justice Khanna said, “In the analysis, we said certain aspects are doubtful, but one aspect about the transfer of money Rs 338 crore is tentatively established. We therefore dismiss the bail application. But, we have made one pointed observation. They have said the trial will be concluded in 6-8 months, so within three months if the trial proceeds slowly. He will be entitled to file a bail petition”.
The CBI’s chargesheet, which was relied upon by the apex court to deny bail to Sisodia, said Sisodia was aware that three liquor manufacturers had 85% share in the liquor market in Delhi and out of them two manufacturers had 65% liquor share, while 14 small manufacturers had 20% market share.
“As per the term in the new excise policy - each manufacturer could appoint only one wholesale distributor, through whom alone the liquor would be sold. At the same time, the wholesale distributors could enter into distribution agreements with multiple manufacturers. This facilitated getting kickbacks or bribes from the wholesale distributors having substantial market share and turnover," said the chargesheet.
The apex court also said that it was concerned about Sisodia's prolonged period of incarceration. The bench said in its opinion, that Section 436A, regarding the maximum period for which an undertrial prisoner can be detained, 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. “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 the case will not be decided within a foreseeable time, the prayer for bail may be meritorious," said the bench.
The bench said while the prosecution may pertain to an economic offence, it may not be proper to equate these cases with those punishable with death, imprisonment for life, 10 years or more like offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, murder, cases of rape, dacoity, kidnaping for ransom and mass violence. Neither is this a case where 100/1000s of depositors have been defrauded, it added.
“When the trial is not proceeding for reasons not attributable to the accused, the court may be guided to exercise the power to grant bail unless there are good reasons. This would be truer where the trial would take years," said the bench.
After hearing detailed submissions, the top court reserved the judgment on October 17. The Delhi liquor policy was implemented by the Delhi government on November 17, 2021, but was later scrapped at the end of September 2022 amid allegations of corruption.
