2024 (5) TMI 1344 - HC - Money Laundering

Seeking grant of Regular Bail - Money Laundering - predicate offence - delay of trial - policy worked to the benefit of select individuals and large businesses or not. Whether the applicant is entitled to bail on sole ground of deay in trial? - HELD THAT - The Hon ble Supreme Court in MANISH SISODIA VERSUS CENTRAL BUREAU OF INVESTIGATION 2023 (11) TMI 63 - SUPREME COURT has also clearly mentioned that the Courts hearing application for bail will not be influenced by the observations made in the previous orders of rejection of bail of Sh. Manish Sisodia. This observation of the Hon ble Apex Court leads to only one conclusion that the learned Trial Court or this Court in event of the applicant moving fresh bail application can, independently apply its mind to the facts of the case and decide the bail application on merit - In the considered opinion of this Court, the directions of the Hon ble Supreme Court entitle the applicant Sh. Manish Sisodia to file a fresh bail application in case he feels that the trial has not expeditiously proceeded in this case. The adjudication of the bail application, therefore has to be on the basis of the merits of the case, with an additional consideration of delay in trial or the right of speedy trial. Whether the applicant or other accused persons can be held responsible for delay in initiation of trial due to their act of filing different applications before the learned Trial Court? - HELD THAT - 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 - In the case of P. GOPALKRISHNAN VERSUS STATE OF KERALA AND ORS. 2019 (11) TMI 1827 - SUPREME COURT , the provision of Section 207 of Cr. P.C. was held to be a part of right to fair trial. This Court cannot ignore the valuable right of an accused to access justice, and avail legal remedies available to him within the framework of the law especially when he is in judicial custody or even otherwise when he is facing criminal trial. Thus, prima facie, the accused persons including the applicant herein have delayed the pre-charge proceedings under Section 207 of Cr. P.C. by taking three months time from 19.10.2023 to 19.01.2024 for inspection of un-relied documents despite repeated directions from learned Trial Court to conclude the same expeditiously. Applications unrelated to Section 207/208 of Cr. P.C. - HELD THAT - In this Court s opinion, the mere act of filing an application seeking any relief cannot automatically be construed as a delay tactic since an accused, who is in judicial 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. The duration of pre-trial proceedings, which includes the mandatory procedures and steps provided under Cr. P.C in criminal cases, necessarily adds to the overall pace and duration of trial of a case. Observations Regarding All Accused Persons Acting in Concert With Each Other To Delay Trial - Whether Reasonable and Justifiable? - HELD THAT - In the opinion of this Court, while the accused persons may be perceived as acting collectively, it is essential to acknowledge their distinct roles and rights as individuals before the Court. In legal proceedings involving multiple accused persons, it is not uncommon for their legal strategies to align or for similar applications to be filed by their respective legal counsels. However, the mere similarity in legal approach adopted by different counsels for the accused persons may not be a concerted effort as each accused is entitled to pursue his defence independently. Delay in commencement of trial cannot be attributed to the ED or CBI or Ld. Trial Court - HELD THAT - The prosecution did not take time or delay commencement of trial by not providing them copies or not complying with the orders of the Court. Further, most of the applications were decided on the same day by the learned Trial Court - This Court further holds that there has been no delay on the part of the learned Trial Court and that arguments on charge in the case filed by CBI have already been part-heard and further arguments were not addressed as co-accused namely Sh. Abhishek Boinpally, Sh. Arun R. Pillai, Sh. Sameer Mahendru, Sh. Amandeep Singh Dhall, Sh. Arjun Pandey, Sh. Rajesh Joshi and Sh. Chanpreet Singh Rai have filed an application and argued before the learned Trial Court that till the entire investigation is completed, the arguments on charge should not be heard. Have the proceedings before the learned Trial Court proceeded at Snail s pace? - HELD THAT - No fault can be found with the Directorate of Enforcement or Central Bureau of Investigation that there was a voluminous record of investigation. It is also not the fault attributable to the prosecution or the learned Trial Court that some of the accused persons in the CBI case do not want to address arguments on charge till investigation is finally concluded. It is also not the fault of prosecution that multiple individual accused persons have multiple individual defence counsels who will argue individually before the learned Trial Court, both during the course of pre-trial proceedings and later during trial, which will take time - The practical realities of trial and pre-trial stages in the complex case as the present one involving extensive investigation may, at times, compromise with speed of the pre-trial duration. At times, justice hurried may lead to justice being buried either to the accused or to the prosecution which is not the intent of criminal jurisprudence of this country. Principles governing grant of regular bail u/s 439 of CRPC and in cases involving economic offences - HELD THAT - In the case of Y.S. JAGAN MOHAN REDDY VERSUS CENTRAL BUREAU OF INVESTIGATION 2013 (5) TMI 896 - SUPREME COURT the Hon ble Supreme Court observed that economic offences constitute a class apart, and thus, gravity of such offences has to be kept in mind while considering a plea for grant of bail. The focus is on prima-facie assessing the evidence available at this stage, to decide if it justifies either the continuation of custody or the grant of bail, without delving into a detailed examination of the merits of the case or making definitive findings of fact. The case of CBI and the ED - role of applicant Shri Manish Sisodia - HELD THAT - The Directorate of Enforcement alleges that Sh. Manish Sisodia was not only the head of the Group of Ministers (GoM) which was tasked by the Cabinet to examine all aspects of the erstwhile excise system, report of the expert committee and comments received from the stakeholders, but he was also the Excise Minister and had played a key role 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 - 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. Association of the Applicant Sh. Manish Sisodia with co-accused Sh. Vijay Nair - HELD THAT - 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 - 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 and receiving the kickbacks from co-accused persons including members of South Group and ensuring that favourable clauses were inserted in the new Liquor Policy for their benefit. Orchestration of Pre-Decided Emails by Sh. Manish Sisodia and Creation of Fake Public Opinion - HELD THAT - In order to overcome the hurdle posed by the Expert Committee Report, Sh. Manish Sisodia had called for public opinion, parts of which were also manufactured by him only, in order to show to the general public that it was the general public and other stakeholders, who were giving suggestions contrary to the Expert Committee report, and not the Government of Delhi, which were taken into consideration while formulating the new Excise Policy. Change of Draft Cabinet Note by Sh. Manish Sisodia to Hide Opinion of Legal Experts - HELD THAT - 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. Role of Applicant in Ensuring Allotment of L-1 License to M/s Indo Spirits - HELD THAT - 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 - 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 - HELD THAT - The provisions of the Policy imposed prohibitive costs and stringent eligibility criteria that effectively excluded smaller retailers from the competition. The high non-refundable participation fee of Rs. 10 lakhs and substantial earnest money deposit requirements of Rs. 30 crores (in case of bidding for one retail zone) and Rs. 60 crores (in case of bidding for more than one retail zone), favored larger entities with significant financial resources, allowing them to dominate the bidding process for retail zones - Consequently, the policy prima facie facilitated the concentration of retail licenses in the hands of a few large players, as also argued by learned Special counsel for E.D. Destruction of Electronic Evidence by Sh. Manish Sisodia - HELD THAT - 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. Whether case for grant of bail is made out, on merits - HELD THAT - There is no dispute about the fact that Sh. Manish Sisodia was the Minister concerned of Excise Department, who was responsible for formulation as well as implementation of Delhi Excise Policy 2021-22, and due to the irregularities committed in its formulation, such as increasing the margin of wholesale distributors from 5% to 12% without any reasonable justification, the wholesale distributors were able to earn an additional profit of 7% amounting to Rs. 338 crores. There is material on record to prima facie show that the members of South Group were involved in formulation of the Delhi Excise Policy and had met with co-accused Sh. Vijay Nair on several occasions, who was the In-charge of Media and Communication wing of Aam Aadmi Party and used to function from the office of Delhi s Chief Minister and at times, had represented himself as OSD to the Excise Department, whose Minister concerned was Sh. Manish Sisodia - 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 conduct a mini-trial to reach a conclusion as to whether the accused is guilty beyond reasonable doubt or not. The stage of such assessment is the stage of trial and not hearing of a bail application. Whether the applicant can be granted bail on sole ground of delay in trial, even though he is not entitled to grant of bail on merits? - HELD THAT - In case of SATYENDAR KUMAR JAIN VERSUS DIRECTORATE OF ENFORCEMENT, ANKUSH JAIN VERSUS DIRECTORATE OF ENFORCEMENT AND VAIBHAV JAIN VERSUS DIRECTORATE OF ENFORCEMENT 2024 (3) TMI 862 - SUPREME COURT , the Hon ble Apex Court has observed that the provision for grant of bail, on the basis of delay in trial, is already imbibed in Section 436A of Cr. P.C. which provides that an undertrial, who has remained in custody for a period of one-half of the maximum punishment which can be awarded to him upon conviction, shall be released on bail, and that Section 436A also applies with full force to PMLA - this Court is of the opinion that the applicant herein cannot be entitled to bail solely on the ground of delay in trial, especially when he has failed to pass the triple test and other parameters including gravity of offence, for grant of bail under Section 439 of Cr. P.C. as well as the twin conditions under Section 45 of PMLA. The present applications seeking grant of regular bail are hereby dismissed.

Summary

Issues Involved:
1. Entitlement to Bail on Ground of Delay in Trial
2. Attribution of Delay to the Applicant
3. Entitlement to Bail on Merits in Cases Registered by CBI and ED

Summary of Judgment:

1. Entitlement to Bail on Ground of Delay in Trial:
The Hon'ble Supreme Court, in its judgment dated 30.10.2023, provided liberty to the applicant to move a fresh bail application if the trial is protracted and proceeds at a snail's pace. However, the Court clarified that such an application would be considered on merits, without being influenced by the previous dismissal of bail applications. The Court emphasized that the delay alone cannot be the sole ground for granting bail, especially in cases involving serious economic offences.

2. Attribution of Delay to the Applicant:
The Court observed that the applicant and other accused persons had filed multiple applications, some of which were frivolous, causing delays in the trial. The Court noted that the accused persons had delayed the pre-charge proceedings under Sections 207/208 of Cr. P.C. by taking three months for inspection of un-relied documents. The Court held that the delay in the trial was not attributable to the prosecution or the learned Trial Court but was due to the actions of the accused persons, including the applicant.

3. Entitlement to Bail on Merits in Cases Registered by CBI and ED:
The Court examined the merits of the case and found prima facie evidence against the applicant, Sh. Manish Sisodia, for his involvement in the alleged conspiracy and money laundering activities. The Court noted that the applicant had failed to produce two of his mobile phones, raising concerns about the destruction of evidence. The Court also highlighted the applicant's influential position and the potential to tamper with evidence and influence witnesses if released on bail. The Court held that the applicant failed to satisfy the triple test for grant of bail and did not pass the twin conditions under Section 45 of PMLA.

Conclusion:
The Court dismissed the bail applications of Sh. Manish Sisodia, concluding that he failed to make out a case for grant of bail on merits. The Court also clarified that the observations made in the judgment are prima facie in nature and will not affect the merits of the case during the trial. Additionally, the Court permitted the applicant to visit his residence to meet his wife in custody once every week at State expense.

Directions:
The applications seeking permission for the applicant to physically meet his wife were allowed, with the applicant permitted to visit his residence once every week under the same terms and conditions imposed by the learned Trial Court. The judgment was ordered to be uploaded on the website forthwith.