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TMI Blog2023 (11) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution of India? HELD THAT:- In Mohan Lal [ 2015 (4) TMI 688 - SUPREME COURT] , the expression possession , it is held, consists of two elements. First, it refers to corpus of physical control and second it refers to the animus or intent which has reference to exercise of self-control. In the context of narcotics laws, a person is said to possess control over the substance when he knows the substance is immediately accessible and exercises dominion or control over the substance. The power and dominion over the substance is, therefore, fundamental. The stand of the DoE as to the constructive possession, will be satisfied only if the dominion and control criteria is satisfied. If the proceeds of crime are in dominion and control of a third person, and not in the dominion and control of the person charged under Section 3, the accused is not in possession of the proceeds of the crime. In the present case, the involvement of an accused may be direct or indirect. Prima facie, there is lack of clarity, as specific allegation on the involvement of the appellant Manish Sisodia, direct or indirect, in the transfer of Rs. 45,00,00,000 (rupees forty five crores only) to AAP for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nounced guilty of an offence should not become punishment without trial. If the trial gets protracted despite assurances of the prosecution, and it is clear that case will not be decided within a foreseeable time, the prayer for bail may be meritorious - The right to bail in cases of delay, coupled with incarceration for a long period, depending on the nature of the allegations, should be read into Section 439 of the Code and Section 45 of the PML Act. The reason is that the constitutional mandate is the higher law, and it is the basic right of the person charged of an offence and not convicted, that he be ensured and given a speedy trial. When the trial is not proceeding for reasons not attributable to the accused, the court, unless there are good reasons, may well be guided to exercise the power to grant bail. This would be truer where the trial would take years. In view of the assurance given at the Bar on behalf of the prosecution that they shall conclude the trial by taking appropriate steps within next six to eight months, liberty given to the appellant Manish Sisodia to move a fresh application for bail in case of change in circumstances, or in case the trial is protracted a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Sisodia is named and is facing trial for the offences under Sections 7, 7A, 8 and 12 of the PoC Act and Sections 120B, 201 and 420 of the IPC. DoE has filed a criminal complaint dated 04.05.2023 against the appellant Manish Sisodia for the offences under Sections 3 and 4 of the PML Act. 5. A number of legal issues and questions were raised, and do arise, for consideration, but we would refrain from delving into them in depth and detail. However, there is a bounded discussion in the subsequent portion of the judgment only for deciding the present appeals and the question as to whether the appellant Manish Sisodia is entitled to bail. Nevertheless, for the purpose of record, we will delineate some of them: (a) What is the scope and ambit of the constitutional protection under Articles 74 and 163 of the Constitution of India on the decisions taken by the Council of Ministers? (b) Whether on interpretation of Section 3 of the PML Act, the act/process of generation or the attempt to generate the proceeds of crime falls within the ambit of the expressions assist , acquisition , possession or use under Section 3 of the PML Act? If the answer is in affirmative, what are the legal conseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld vends to be operated anywhere within that zone. o Auction, with a reserve price equal to the existing license fee plus sum of potential revenue, estimated VAT and 10% additional fee for increase on year to year ensured maximization of revenue. o The licence fee payable by the wholesaler was raised from Rs.5,00,000/- (rupees five lakhs only) under the old policy to Rs.5,00,00,000/- (rupees five crores only), which is an increase of approximately 10,000%. o The wholesalers were entitled to a standard distribution fee at the rate of 12% of the landed price. The landed price or the ex-distillery price was the lowest price as declared by the manufacturer in any market in India. o The standard distribution fee at the rate of 12%, though higher than the fee under the old policy, was necessary to cover the higher level of investment required, setting up of quality checking system, etc. The fee of 12% had also subsumed several other charges payable under the old policy. The new policy was drafted in a transparent manner after deliberation at different levels by Secretaries/Officers of the Excise, Planning, Finance and Law departments. The revenue generation was projected at 12%. Comments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agunta, son of a Member of Parliament of the ruling party in Andhra Pradesh, was forced to make the statement dated 27.07.2023, which is contrary to his earlier statement dated 16.09.2022. Statements obtained from Dinesh Arora, an approver, is weak evidence and in this regard, reliance is placed upon Ravinder Singh v. State of Haryana (1975) 3 SCC 742 . Statement of Dinesh Arora dated 12.07.2023 is contrary to his earlier statement made on 09.04.2023. Allegations regarding the appellant Manish Sisodia s involvement in the grant of licence to Indo Spirit is make belief and a false assertion. Statements obtained from the officers of the Excise Department under Section 164 of the Code, namely, Suman, Sachin Solanki and Arava Gopi Krishna do not implicate the appellant Manish Sisodia. The appellant Manish Sisodia, in his statement dated 14.03.2023, has stated that he had not instructed the Excise Commissioner to expedite the clearance of Indo Spirit s license. Interaction and communications between the private parties viz. business of Indo Spirit was independent, and without any interference, knowledge and participation of the appellant Manish Sisodia. Vijay Nair was not associated wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ublic comments to the R.D. Committee Report , statement of Zakir Khan Chairperson of the Delhi Minorities Commission dated 29.03.2023 recorded under Section 161 of the Code, and screenshots of WhatsApp chats of Kartikey Azad and Zakir Khan establish the motive. Thus, a facade of transparency and openness in policy making was created. o Rahul Singh Erstwhile Excise Commissioner of NCT of Delhi supports the charge. He was asked to prepare a cabinet note in a particular manner with comments and suggestions of the stakeholders and public. The appellant Manish Sisodia reprimanded Rahul Singh for annexing the opinion of legal experts in the cabinet note. Statement of Rahul Singh21 dated 03.03.2023, under Section 161 of the Code C. Arvind s statement dated 16.02.2023 under Section 164 of the Code is similar. o The appellant Manish Sisodia, had issued directions to Sanjay Goel, Excise Commissioner of NCT of Delhi, who had replaced Rahul Singh to prepare a note without the opinion of legal experts. Reliance is placed on the statement of Sanjay Goel dated 17.01.2023 under Section 161 of the Code, and the letter dated 02.02.2023 by the appellant Manish Sisodia to the Excise Commissioner. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich is prior to submission of the GoM report to the Cabinet on 22.3.2022, refers to the creation of the new post of the Director, Wholesale Operation. Based on the print/document prepared by the liquor group, the GoM report to the Cabinet was modified to create this post. o Further, the minimum wholesaler fee of 5% under the draft dated 15.03.2021, was modified to mandatory and fixed fee of 12% in the altered GoM report submitted to the Cabinet. The GoM did not meet between 15.03.2021 and 19.03.2021. There are neither any deliberations/discussions nor any noting/ calculations by the GoM for increasing the wholesale commission/ fee from 5% to 12%. Reliance is placed on the statement of Arava Gopi Krishna under Section 164 of the Code. Reliance is also placed on the statement of Sanjay Goel, dated 11.04.2023, under Sections 50(2) and 50(3) of the PML Act. The appellant Manish Sisodia was unable to provide any rational explanation for increasing the commission from 5% to 12%. Statement of Manish Sisodia dated 07.03.2023, under Section 50(2) and 50(3) of the PML Act. He had stated that even under the old regime there was no calculation for the 5% margin. The appellant Manish Sisodia h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the crime, should not be accepted as the expression possession includes constructive possession. A person need not be in actual possession. When a person exercises dominion or control over a thing, directly or indirectly, through another person, he is in possession over the said thing. The appellant Manish Sisodia was a key to the processes and activities dealing with the proceeds of the crime and in using proceeds of the crime. He had created an eco-system for generating, concealing and projecting the tainted money, used subsequently by AAP. The kickback or the proceeds of the crime of Rs.100,00,00,000 (rupees one hundred crore only) were received from the liquor group, and used by the associates of the appellant Manish Sisodia and other leaders of AAP. o Portions of these proceeds of crime were used in the Goa election campaign through multiple persons and entities. The attempt was to conceal the true nature of the proceeds of the crime and to project them as untainted money. o Part of the proceeds of crime of Rs.100,00,00,000 (rupees one hundred crore only) were transferred through a complex web of transactions through hawala route, which have been traced in spite of erasure of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubject to such conditions as may be prescribed. (2) The limitation on granting of bail specified in sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. Explanation. For the removal of doubts, it is clarified that the expression Offences to be cognizable and non-bailable shall mean and shall be deemed to have always meant that all offences under this Act shall be cognizable offences and non-bailable offences notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973 (2 of 1974), and accordingly the officers authorised under this Act are empowered to arrest an accused without warrant, subject to the fulfilment of conditions under section 19 and subject to the conditions enshrined under this section. of the PML Act, in Vijay Madanlal Choudhary (supra), the three Judges Bench has opined that the provision does not require that to grant bail, the court must arrive at a positive finding that the applicant has not committed an offence under the PML Act. Section 45 must be construed reasonably as the intent of the legislature cannot be read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh its office bearers in the election funding of the AAP in Goa as well for the benefit of office bearers as indicated above. Once the quantum of amount used for election in Goa is ascertained a decision to consider AAP as accused under Section 3 read with Section 70 of the PMLA (PML Act) shall be taken at that point of time. 12. Thirdly, the assertion in the complaint filed with the DoE that kickback of Rs.100,00,00,000 (rupees one hundred crore only) was actually paid by the liquor group is somewhat a matter of debate. However, there is an assertion, and the DoE has relied on evidence and material, that a portion thereof, that is, Rs. 45,00,00,000 (rupees forty five crores only) was transferred through Hawala for the Goa election and used by AAP, a political party, which is a juristic person. We are not commenting on the material and evidence relied by the DoE or CBI. AAP is not being prosecuted. The charge that the appellant Manish Sisodia is vicariously liable in terms of Section 70 of the PML Act cannot be alleged and has not been argued. See Aneeta Hada v. Godfather Travels and Tours Private Limited, (2012) 5 SCC 661, and Sharad Kumar Sanghi v. Sangita Rane, (2015) 12 SCC 78 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce is, therefore, fundamental. The stand of the DoE as to the constructive possession, will be satisfied only if the dominion and control criteria is satisfied. If the proceeds of crime are in dominion and control of a third person, and not in the dominion and control of the person charged under Section 3, the accused is not in possession of the proceeds of the crime. It would be a different matter, when an accused, though not in possession, is charged for use, concealment or acquisition of the proceeds of the crime, or projects or claims the proceeds of crime as untainted property. The involvement of an accused may be direct or indirect. Prima facie, there is lack of clarity, as specific allegation on the involvement of the appellant Manish Sisodia, direct or indirect, in the transfer of Rs. 45,00,00,000 (rupees forty five crores only) to AAP for the Goa elections is missing. 16. This Court in Y. Balaji v. Karthik Desari and Another (2023) SCC Online SC 645 , while examining contours of Section 3 of the PML Act Section 3 of the PML Act reads: Section 3 of the PML Act reads: 3. Offence of money-laundering. Whosoever directly or indirectly attempts to indulge or knowingly assists o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any person as a result of criminal activity relating to a scheduled offence or the value of any such property or where such property is taken or held outside the country, then the property equivalent in value held within the country or abroad; As far as person is concerned, it means those who directly or indirectly attempt to indulge; those who knowingly assist, or those who are knowingly a party, or those who are actually involved. On the above interpretation, this court held that the offence under Section 3 of the PML Act includes both the persons who commit the predicate or schedule offence and third party launderers. For the purpose of the present decision, we need not examine whether there is a conflict in the ratio in Y. Balaji (supra) and the ratio in Vijay Madanlal Choudhary (supra). 17. The judgment in Y. Balaji (supra), it is submitted by the appellant Manish Sisodia, does not specifically examine whether generation will be included in the six activities covered under the head process or activity . The second p must relate to the activity or process with the third p , that is, the product, which is the proceeds of crime. However, we need not, in the present case, definiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng whether this plea can be taken by the DoE, in view of Articles 74(2) Article 74(2) of the Constitution of India reads: (2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court. and 163(3) Article 163(3) of the Constitution of India reads: (3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court. of the Constitution of India, as this relates to the wisdom or merits of the choice that every elected government has while formulating a policy. See In Yashwant Sinha and Ors. v. Central Bureau of Investigation, (2019) 6 SCC 1, State of Uttar Pradesh v. Raj Narain, (1975) 4 SCC 428, Doypack Systems (P) Ltd. v. Union of India, (1988) 2 SCC 299 and other cases However, we should not be understood to mean that no policy decision would fall foul as to be covered as an offence under Section 7 of the PoC Act. We shall subsequently examine Section 7 of the PoC Act viz. the facts alleged. We need not go into the questions in detail as the argument with reference to Article 163(3) has not been specifically raised on behalf of the appellant M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts as alleged are tentatively supported by material and evidence. This discussion is equally relevant for the charge-sheet filed by the CBI under the PoC Act and IPC. We would like to recapitulate the facts as alleged, which it is stated establish an offence under Section 3 of the PML Act and the PoC Act. These are: In a period of about ten months, during which the new excise policy was in operation, the wholesale distributors had earned Rs. 581,00,00,000 (rupees five hundred eighty one crores only) as the fixed fee. The one time licence fee collected from 14 wholesale distributors was about Rs.70,00,00,000 (rupees seventy crores only). Under the old policy 5% commission was payable to the wholesale distributors/licensees. The difference between the 12%; minus 5% of the wholesale profit margin plus Rs.70,00,00,000/-; it is submitted, would constitute proceeds of crime, an offence punishable under the PML Act. The proceeds of crime were acquired, used and were in possession of the wholesale distributors who have unlawfully benefitted from illegal gain at the expense of the government exchequer and the consumers/buyers. We wish to clarify that not all distributor licensees may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blic servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Explanation 1. For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper. Illustration. A public servant, S asks a person, P to give him an amount of five thousand rupees to process his routine ration card application on time. S is guilty of an offence under this section. Explanation 2. For the purpose of this section, (i) the expressions obtains or accepts or attempts to obtain shall cover cases where a person being a public servant, obtains or accepts or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illeg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the liquor group had meetings on different dates, including 16.03.2021, and had prepared the new excise policy, which was handed over to Vijay Nair. Thereupon, the commission/fee, which was earlier fixed at minimum of 5%, was enhanced to fixed fee of 12% payable to wholesale distributor. The appellant Manish Sisodia was aware that three liquor manufacturers have 85% share in the liquor market in Delhi. 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 Criminal Appeal a/o. of SLP (Crl.) No. 8167 of 2023 Anr. Page 35 of 41 into distribution agreements with multiple manufacturers. This facilitated getting kickbacks or bribes from the wholesale distributors having substantial market share and turnover. The licence fee payable by the wholesale distributor was a fixed amount of Rs.5,00,00,000/- (rupees five crores only). It was not dependant on the turnover. The new policy facilitated big wholesale distributors, whose outpour tow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis, on the facts. The primary object is to secure the presence of the accused to stand trial. The argument that the appellant therein was a flight risk or that there was a possibility of tampering with the evidence or influencing the witnesses, was rejected by the Court. Again, in Satender Kumar Antil v. Central Bureau of Investigation and Another (2022) 10 SCC 51 , this Court referred to Surinder Singh Alias Shingara Singh v. State of Punjab (2005) 7 SCC 387 and Kashmira Singh v. State of Punjab (1977) 4 SCC 291 , to emphasise that the right to speedy trial is a fundamental right within the broad scope of Article 21 of the Constitution. In Vijay Madanlal Choudhary (supra), this Court while highlighting the evil of economic offences like money laundering, and its adverse impact on the society and citizens, observed that arrest infringes the fundamental right to life. This Court referred to Section 19 of the PML Act, for the in-built safeguards to be adhered to by the authorised officers to ensure fairness, objectivity and accountability. See also Pankaj Bansal v. Union of India and Ors., 2023 SCC OnLine SC 1244. Vijay Madanlal Choudhary (supra), also held that Section 436A of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 482 of the Code before the High Court. It was stated at the Bar, on behalf of the prosecution that the said petition under Section 482 will be withdrawn. It was also stated at the Bar, by the prosecution that the trial would be concluded within next six to eight months. 28. 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 it is clear that case will not be decided within a foreseeable time, the prayer for bail may be meritorious. While the prosecution may pertain to an economic offence, yet it may not be proper to equate these cases with those punishable with death, imprisonment for life, ten years or more like offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, murder, cases of rape, dacoity, kidnaping for ransom, mass violence, etc. Neither is this a case where 100/1000s of depositors have been defrauded. The allegations have to be established and proven. The right to bail in cases of delay, coupled with incarceration for a long period, depending on the nature of the allegations, should be read into Section 439 of the Code and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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