Supreme Court: In a special leave petition (criminal) against Delhi High Court’s decision wherein dismissal of Vijay Nair’s bail application in Delhi Excise Liquor Policy matter by the Trial Court was upheld, the Division Bench of Hrishikesh Roy and SVN Bhatti, JJ. granted bail to Nair, holding that he was lodged in jail for a considerable period and there was little possibility of trial reaching finality, in near future. The Court said that the cardinal principle of bail being the rule and jail being the exception will be entirely defeated, if he is kept in custody as an under-trial for such a long duration, when has already been in custody for over 22 months.
The Court stated that “right of liberty guaranteed under Article 21 of the Constitution is a sacrosanct right which needs to be respected even in cases where stringent provisions are incorporated in the special enactments”. The Court noted that Nair has been in custody for over 22 months and his incarceration as an under-trial cannot be the mode of punishment. Further, the Court noted that the maximum sentence that can be imposed, if Nair is convicted, is 7 years.
Regarding conclusion of trial, the Court pointed out that during Manish Sisodia’s hearing, who is also an accused in Delhi Excise Policy case, an assurance was given by the counsel representing the Directorate of Enforcement, that the trial would get concluded within 6-8 months. The Court added that, the same is yet to commence. The Court said that as many as 40 persons have been arrayed as accused in the cases with 9 complaints, prosecution expects to examine around 350 witnesses. The Court also took note of multiple supplementary complaints filed by the ED between 06-04-2023 and 28-06-2024 and several other applications filed by Nair and other co-accused and said that this appears to be continuing investigation for over two years.
On ED’s contention that stringent conditions of bail under Section 45 of the Money Laundering Act, 2002 have to be satisfied before granting bail, the Court reiterated that the rigours under Section 45 can be relaxed if the custody is for a considerable period of time and there is no likelihood of conclusion of trial within a short span.
Further, the Court relied on Manish Sisodia v. Enforcement Directorate, 2024 SCC OnLine SC 1920, wherein Sisodia was granted bail, and Court reiterated the right of an accused for expeditious trial and that the fundamental rights guaranteed under Article 21 cannot be subjugated to the statutory bar in Section 45 of the Act. It was also observed that the right to bail in cases of prolonged incarceration and trial delays, depending on the nature of the allegations, should be considered under Section 439 Cr. P.C. and Section 45 of the Act. Bail should not be withheld as a form of punishment, reiterating the principle that bail is the rule, and its refusal is the exception.
The Court stated that liberty guaranteed under Article 21 of the Constitution does not get abrogated even for special statutes where the threshold twin bar is provided, and such statutes cannot carve out an exception to the principle of bail being the rule and jail being the exception.
Direction for release on bail, with following terms and conditions
The Court directed for his release on bail on furnishing bail bonds of Rs. 10,00,000/- in each of the cases.
1. He shall not make any attempt to tamper with the evidence or influence the witnesses;
2. He shall deposit his passport with the learned Trial Court; and
3. He shall regularly attend the Trial Court and cooperate with the expeditious disposal of the trial.
Background
Nair was accused of acting as a middleman and was involved in irregularities in framing and implementing the Delhi Excise policy. It was alleged that acting in furtherance of the conspiracy a policy was circumvented and got framed in such a manner to continuously generate and channel illegal funds. The allegations are that deliberate loopholes were left to facilitate illegal and criminal activities. Vijay Nair, former communications-in-charge of the Aam Aadmi Party (AAP) was a close associate of Chief Minister, GNCT of Delhi and Manish Sisodia, Deputy Chief Minister. It was alleged that Vijay Nair arranged a video call through face time between Chief Minister, Government of NCT of Delhi and Sameer Mahendru where Chief Minister said that Vijay Nair is his boy, and they should trust him.
In the impugned decision, Vijay Nair v. Directorate of Enforcement, 2023 SCC OnLine Del 3769, the High Court opined that allegations were extremely serious in nature and the alleged conspiracy was well spun and there were prima facie credible materials on record. Hence, the High Court did not find any illegality or perversity in the order of the Trial Court.
CASE DETAILS
| Citation: Special Leave Petition (Criminal) Diary No(s). 22137/2024 Appellants : Respondents : |
Advocates who appeared in this case For Petitioner(s): For Respondent(s): |
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