Delhi High Court: In a case wherein this Court was considering the bail application of the petitioner, Manish Sisodia, who was arrested for the offence under Section 3 of the Prevention of Money Laundering Act, 2002 (‘PMLA’), a Single Judge Bench of Dinesh Kumar Sharma, J.*, opined that in view of the high political positions held by the petitioner and his position in the party in power in Delhi, possibility of influence the witnesses could not be ruled out. The Court further opined that the petitioner had not only been able to pass the twin conditions as provided under Section 45 of PMLA, but he had also not been able to cross the triple test. Thus, the Court dismissed the present petition and held that the petitioner was not entitled to bail.
Background
An FIR dated 17-8-2022 was registered by CBI against the petitioner, Deputy Chief Minister, Government of Delhi under Section 120-B read with Section 477-A of Penal Code, 1860 (‘IPC’) and Section 7 of Prevention of Corruption Act, 1988 (‘PCA’) for irregularities in framing and implementation of the excise policy of Government of Delhi for the year 2021-2022. The Office Memorandum (‘OM’) disclosed that the petitioner along with Arva Gopi Krishna, the then Commissioner (Excise), Government of Delhi and Pankaj Bhatnagar, Assistant Commissioner (Excise), Government of Delhi were instrumental in recommending and taking decisions pertaining to excise policy for the year 2021-2022 without approval of competent authority with an intention to extend undue favors to the licensees post tender.
The allegations against the petitioner were that he being the deputy Chief minister and Excise Minister, formulated the excise policy in such a manner that undue advantage goes to the manufacturer, wholesaler, and retailer to recoup the advance kickbacks and to further gain undue advantage from the profit so earned by virtue of the provision in the new excise policy. The allegation against the petitioner was also that Indospirits was created as a special purpose vehicle to generate the proceeds of crime.
Analysis, Law, and Decision
The Court noted that the initial allegation in the predicate offence was that the conspiracy was hatched between the political head and certain persons which included an individual allegedly representing the government with the manufacturer, liquor wholesaler and retailer. The conspiracy allegedly was hatched to introduce a new excise policy to benefit certain individuals who had given advance kickbacks to the AAP.
The Court opined that it was fully conscious of the fact that personal liberty was a sacrosanct right and pre-trial detention could not be taken as a punitive measure. However, the Court had to strike a balance between the interest of an individual and the interest of society at large.
The Court further noted that the investigation relating to the conspiracy to frame the excise policy allegedly with malafide intention and alleged misuse of official position was the subject matter of the CBI in which the charge-sheet had already been filed by the CBI.
The Court observed that there were witnesses on record to show that certain outsiders were actively participating from the stage of drafting and formulation of the policy and the statements of the witnesses clearly indicated that some extraneous factors were working since the time of conceptualization, formulation and drafting of the excise policy.
The Court noted that the bail application of the petitioner was rejected by the Special Judge in an order dated 28-4-2023. The Court noted that while rejecting the bail application the Trial Court observed that considering the evidence placed on record it could clearly be inferred that the petitioner herein was connected with the generation of proceeds of crime of around 100 Crores in the form of kickbacks which were paid by the “South lobby” to the co-accused Vijay Nair, through the co-accused Abhishek Boinpally, who had been participating in the meetings with different conspirators and stakeholders in liquor business. The petitioner ensured undue pecuniary benefits to the conspirators and members of the cartel which was permitted to be formed by manipulation of some provisions of the excise policy and by insertion of some favorable clauses therein for the benefit of conspirators.
The Court noted that the Trial Court had dismissed the bail application of the petitioner in the scheduled offences case of CBI in order dated 31-3-2023 wherein the Court was of prima facie view that the possibility of destruction of or tampering with the evidence by the petitioner could not be ruled out, in view of the specific allegations levelled against him of such destruction or tampering by way of not producing his three out of four mobile phones before the Investigating Officer as the same were expected to contain some vital piece of evidence regarding commission of the alleged offences and his involvement therein.
The Court observed that allegations and the material on record indicated that profit margin was increased from 5% to 12% without having any discussion taken place in the meetings of Group of ministers (‘GoM’). The Court also noted that the Enforcement Directorate had also alleged that the petitioner in his statement could not give any plausible reason for the increase of the margin from 5% to 12%.
The Court further opined that “the gravity of the allegations against the petitioner were very serious in nature and in view of the peculiar facts, this matter must be visited with a different approach as a deep-rooted conspiracy involving huge loss of public funds had been alleged”. The Court further opined that it did not find any infirmity or illegality in the order of the Special Judge dated 28-4-2023.
The Court also stated that this Court also rejected the bail application of the petitioner in Manish Sisodia v. Central Bureau of Investigation, 2023 SCC OnLine Del 3231. The Court opined that “in view of the high political positions held by the petitioner and his position in the party in power in Delhi, possibility of influence the witnesses could not be ruled out. The twin conditions under Section 45 of PMLA were in addition to the triple test”. The Court further opined that “the petitioner had not only been able to pass the twin conditions as provided under Section 45 of PMLA, but he had also not been able to cross the triple test”. Thus, the Court dismissed the present petition and held that the petitioner was not entitled to bail.
[Manish Sisodia v. Directorate of Enforcement, 2023 SCC OnLine Del 3770, decided on 3-7-2023]
*Judgment authored by: Justice Dinesh Kumar Sharma
Advocates who appeared in this case :
For the Petitioner: Mohit Mathur, Dayan Krishnan, Senior Advocate; Vivek Jain, Mohd. Irshad, Mohit Siwach, Karan Sharma, Rishikesh Kumar, Aditya Raj, Harsh Gautam, Abhinav Jain, Rajat Jain, Mayank Sharma, Rishabh Sharma, Advocates;
For the Respondent: S. V. Raju, ASG; Zoheb Hossain, Special Counsel, Vivek Gumani, Ankit Bhatia, Bhaibhav, Harsh Paul Singh, Kartik Sabarwal, Advocates.
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