2023 (5) TMI 1309 - HC - Indian Laws

Grant of bail - involved in irregularities in framing and implementation of excise policy of GNCTD of Delhi for the Year 2021-22 - HELD THAT - The law regarding grant of bail is very well settled. The liberty of an individual is sacrosanct and is relatable to Article 21 of the Constitution of India. It is no more res integra that the rule is bail and not jail. It is also a settled proposition that at the stage of bail the court is not required to enter into the meticulous examination of facts nor it can examine the probative value of the witnesses. The court has merely to see the prima facie case. 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 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 role of the applicant in any policy decision including a formation of new excise policy replacing the old one has to be extremely relevant. The case of the CBI is that the applicant was the pivot of the entire conspiracy and everything was being done under his instructions and supervision. The margin of profit from 5% to 12% was increased in order to recoup the kickbacks which had already been received through Vijay Nair. in this regard reliance has been placed upon the statement of approver Mr. Dinesh Arora. The parameter for grant of the bail has already been stated hereinabove and therefore need not to be repeated again. The court at this stage has only to see the prima facie case. The CBI has brought the material on record in the form of the document and the statements of the witnesses to show that initially Ravi Dhawan Expert Committee Report was presented which was later on not followed by the Government in material aspects and certain provisions were inserted which indicate towards malafide. 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 them. The allegations if found to be correct are very serious in nature and goes to the very foundation of the case. The court at this stage is not to meticulously examine the material and evidence on the record nor should it make any comment beyond the same as it may prejudice the parties during the trial. The applicant at this stage cannot be seen saying that he had no role to play. He being the deputy Chief minister and Minister of Excise was at the helm of affairs. The witnesses in the present case are mostly public servants. Presently also the party of the applicant is in power. Therefore it cannot be disputed that the applicant is a high profile person and has potential to influence the witnesses. Therefore the apprehension of the CBI that the applicant might tamper with or otherwise adversely influence the witnesses cannot be ignored. The applicant is also not entitled to parity in view of his unparalleled position. Thus the allegations are very serious in nature that excise policy was formed at the instance of the South Group with malafide intention to give undue advantage to them. Such an act points towards the misconduct 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.

Summary

Issues Involved:
1. Allegations against the petitioner regarding the excise policy.
2. Bail application before the Special Judge.
3. Averments in the present bail application.
4. Findings and analysis.
5. Conclusion.

A. Allegations Against the Petitioner:
The petitioner, a high-ranking government official, was alleged to have conspired with others to manipulate the excise policy for undue pecuniary advantage. The FIR detailed involvement of various individuals and companies in irregularities related to the excise policy of GNCTD for 2021-22. Specific allegations included issuing credit notes to retail vendors to divert funds, false entries in accounts, and threats to officials for granting licenses. The CBI claimed the petitioner was the "kingpin and architect of the conspiracy."

B. Bail Application Before the Special Judge:
The bail application was dismissed by the Special Judge on 31.03.2023. The court held that the petitioner played a vital role in the conspiracy, with kickbacks of around Rs. 90-100 crores routed through co-accused. The court noted the serious nature of allegations, ongoing investigation, and potential for evidence tampering, concluding that the petitioner did not deserve bail.

C. Averments in Present Bail Application:
The petitioner claimed innocence, cooperation with the investigation, and no involvement in the alleged offences. It was argued that the new excise policy was duly approved and that the government was not bound to accept the recommendations of the Ravi Dhawan committee. The petitioner contended there was no material evidence linking him to the offences and that the Special Judge misinterpreted the evidence.

D. Findings and Analysis:
The court noted the CBI's case that the petitioner, as Deputy Chief Minister, played a pivotal role in the conspiracy to amend the excise policy for illegal gains. The CBI presented material showing manipulation of the policy at the behest of the "South Group," with increased profit margins to recoup kickbacks. The court acknowledged the government's discretion in policy-making but emphasized that allegations of malafide intentions and corruption warranted investigation. The court found the petitioner's influential position and potential to tamper with witnesses as significant factors against granting bail.

E. Conclusion:
The court concluded that the serious nature of allegations, the petitioner's influential position, and the possibility of witness tampering disqualified him from bail. The petition was dismissed, and the petitioner was not entitled to bail.