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TMI Blog2024 (5) TMI 1344X X X X Extracts X X X X X X X X Extracts X X X X ..... ail 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... run 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-tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icant in case registered against him by Central Bureau of Investigation ( CBI ), since the same arise out of similar facts, the latter being the predicate offence and the former being a case registered on the basis of the predicate offence. The facts and the allegations to a large extent are therefore identical. 2. Since both bail applications are being decided by one common order, the brevity of the bail order had to be sacrificed. 3. The initial journey of the case began when a letter was issued on 20.07.2022 by Sh. Vinai Kumar Saxena, the Lieutenant Governor of Delhi, alleging irregularities in the framing and implementation of Delhi s Excise Policy for the year 2021-22. Subsequent to this, Sh. Praveen Kumar Rai, Director, Ministry of Home Affairs, Government of India, had directed an enquiry into the said matter, vide Office Memorandum dated 22.07.2022. Pursuant thereto, the Central Bureau of Investigation registered a case bearing no. RC0032022A0053 on 17.08.2022, for offences under Sections 120B read with 477A of Indian Penal Code, 1860 ( IPC ) and Section 7 of Prevention of Corruption Act, 1988 ( PC Act ). 4. The Directorate of Enforcement entered the arena of investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication, including the present judgment. Observations made above, re.: right to speedy trial, will, however, be taken into consideration. The appellant Manish Sisodia may also file an application for interim bail in case of ill health and medical emergency due to illness of his wife. Such application would be also examined on its own merits. 9. In light of these observations, the applicant had again approached the learned Trial Court on 27.01.2024 by filing fresh bail applications in both the cases, wherein he had sought grant of regular bail primarily on the grounds of delay in trial. Both the applications were dismissed by the learned Trial Court vide orders dated 30.04.2024, resulting in the present bail applications. BRIEF FACTS OF THE CASE 10. The case set out by the Central Bureau of Investigation, in brief, is that during the formulation of the Delhi s Excise Policy of 2021-22, the accused persons had entered into a criminal conspiracy, thereby intentionally creating or leaving loopholes in the policy to be exploited later on. Substantial kickbacks were allegedly paid in advance to the public servants involved, in exchange for undue pecuniary benefits to the conspirators in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xies Sh. Arun Pillai and Sh. Prem Rahul Manduri, held a 65% partnership. M/s Indo Spirits was used to launder money, employing methods like control of the firm, excess credit notes, and overdue outstanding payments to recoup kickbacks. As far as investigation qua trial of kickbacks is concerned, the Directorate of Enforcement claims part of these funds was used in AAP s 2022 Goa Assembly election campaign, with Rs. 45 crores sent to Goa through hawala channels. As per the case of Directorate of Enforcement, the applicant is the key conspirator in this case, who was actively involved in generating, concealing, projecting as untainted, and using the proceeds of crime. 13. The first prosecution complaint was filed by the Directorate of Enforcement was on 26.11.2022 and the cognizance of the same was taken by the learned Trial Court on 20.12.2022. Thereafter, Directorate of Enforcement has also filed five supplementary prosecution complaints, the sixth supplementary prosecution complaint was filed during the pendency of the present applications against co-accused Sh. Kejriwal. The applicant herein i.e. Sh. Manish Sisodia was made an accused by way of fourth supplementary prosecution co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed certain applications to that effect, which were in fact allowed by the learned Trial Court. Thus, it is stated that the observations made by the learned Trial Court are totally incorrect since all the applications had been allowed by the learned Trial Court itself. 16. It is further submitted that one of the applications moved by the present applicant was seeking permission to meet his wife physically since his wife is suffering from various ailments and that the said application was allowed by the learned Trial Court by way of custody parole and thus, this application cannot be regarded as a delay tactic. Further, the other applications filed by the applicant have been erroneously termed as frivolous by the learned Trial Court to justify the rejection of grant of bail, however, the said applications were of such nature which are filed by an accused in the normal course of criminal trial, and it is a matter of fact that the present applicant has to approach the learned Trial Court for seeking such reliefs since he is in judicial custody and he has no other legal recourse available to him. It is argued that counting these applications as a factor for delay in trial is, on the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel appearing on behalf of applicant argues that the applicant was arrested on 09.03.2023, and has been in judicial custody for more than 14 months. It is further argued that the Hon ble Supreme Court in Manish Sisodia (supra) has confirmed that the applicant can seek regular bail in case the trial is not proceeding further, since speedy trial is a facet of Article 21 of Constitution, and the same must be read into both Section 439 of Cr. P.C. and Section 45 of PMLA; and where the trial would not be proceeding for reasons not attributable to the accused, the Court would be justified in granting bail. Therefore, it is submitted that the applicant herein had filed his second regular bail application before the learned Trial Court which was dismissed vide order dated 30.04.2024. Pursuant to that, the applicant is before this Court seeking grant of regular bail in case arising out of ECIR bearing no. HIU-II/14/2022. 22. It is argued that by Sh. Dayan Krishnan that as mentioned in the judgment of Manish Sisodia (supra), the prosecuting agency i.e. the Directorate of Enforcement had tendered a categorical assurance to the Hon ble Supreme Court that the trial will be concluded within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... copies of relied upon documents, cannot be attributed to the applicant since no such application was preferred by the present applicant. 24. It is argued on behalf of the applicant that in fact, it is the Directorate of Enforcement itself which has been delaying the trial. It is stated that in order dated 22.11.2023, the learned Trial Court in para 9 has categorically noted that the Directorate of Enforcement was attempting to introduce new documents in relied upon documents for earlier prosecution complaints, without the leave of the Court. Subsequently, on 06.12.2023, the Directorate of Enforcement had preferred an application seeking to place on record around 540 pages of documents which were relied upon in the main and four supplementary prosecution complaints but ironically, these documents, which should have been already filed, were not included in the relied upon documents along with those complaints. This application was filed by the Directorate of Enforcement more than a year after the filing of the first prosecution complaint dated 26.11.2022 and more than seven months after the fourth supplementary complaint dated 04.05.2023. Therefore, it is argued that the learned Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, which would be hampered if the applicant is released on bail; especially in light of the nature of the case, severity of allegations and voluminous evidence on record. 28. It is further argued by Sh. Zoheb Hossain that the conspiracy in this case was to see that Aam Aadmi Party makes wrongful gains in the form of bribes given by persons who were favoured in the proposed New Excise Policy and in the said process it had been assured that the accused persons giving bribes would recoup as well as get additional benefits out of the New Excise Policy. It is further submitted that the applicant was actively involved in the formulation and implementation of the New Excise Policy that would enable the bribe giver to recoup/recover the bribe and make more money. It is argued that the opinion/report of the Expert Committee headed by Mr. Ravi Dhawan, the then Excise Commissioner, was only to create an impression of a false transparency since the recommendations of the expert committee were never implemented or even debated upon or discussed during the farcical meetings of the Delhi Government. 29. It is further argued that Sh. Manish Sisodia and his associates were involved in destructio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gress has taken place despite concerted and consistent efforts of the accused persons to delay the trial. In this regard, it is further submitted that from 26.11.2022 (i.e. the date of filing the first prosecution complaint) till 30.10.2023 (i.e. date of Hon ble Supreme Court order rejecting the bail of Sh. Manish Sisodia), only 40 applications were filed by the accused persons including Sh. Manish Sisodia. However, right after the bail was rejected and the applicant was given liberty to file bail again if the trial protracted, the number of applications filed by the accused persons increased to 130 in a period of six months. It is argued that most of these applications were repetitive, redundant and frivolous. It is further stated that almost all the accused persons requested for supply of hard copies of all relied upon documents/prosecution complaints on 21.11.2023 i.e. after the judgment of Hon ble Supreme Court dated 30.10.2023. This fact has also been noted by the learned Trial Court in its order dated 30.04.2024 while rejecting the bail application of Sh. Manish Sisodia. 31. Learned Special Counsel also submits that the applicant had also filed an application seeking CCTV foo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the defence Counsels by 22.11.2023. However, the counsels of the accused persons did not complete the inspection of un-relied documents and un-relied statements of witnesses by the said date. In view of the same, the learned Trial Court vide its order dated 22.11.2023 directed them to complete the work of inspection by 22.12.2023. However, in compliance with the said order, the counsel for the applicant visited the CBI office for the purpose of inspection of un-relied documents and statements of the witnesses only for four days and that too for a few hours. 36. It is further argued that despite conducting the inspection of the un-relied documents, the accused persons, with the intention to delay the trial, again filed an application under Section 207 Cr. P.C. before the learned Trial Court on 22.12.2023, for supply of copies of the documents seized during the searches conducted by CBI at the premises of the accused petitioner; whereas copies of the search lists containing the details of such documents had already been provided to the accused persons on the date of the search itself. 37. Mr. Ripudaman Bhardwaj, Learned Special Public Prosecutor for the CBI argues that the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and Directorate of Enforcement. The material placed on record by both the sides has also been perused and considered. ISSUES BEFORE THIS COURT 41. The issues which were raised during the course of arguments, and which arise for consideration for deciding this bail application, are as under: i. Whether the order of the Hon ble Supreme Court entitles the present applicant to grant of bail, solely on the ground of delay of trial? ii. Has there been a delay in this case attributable to Sh. Manish Sisodia? iii. Is the applicant Sh. Manish Sisodia entitled to grant of bail in both the cases i.e. cases registered by CBI and E.D.? DIRECTIONS OF THE HON BLE SUPREME COURT IN JUDGMENT DATED 30.10.2023: WHETHER THE APPLICANT IS ENTITLED TO BAIL ON SOLE GROUND OF DELAY IN TRIAL? 42. By virtue of judgment dated 30.10.2023, though the petitions filed by Sh. Manish Sisodia, seeking bail in both the cases, were dismissed by the Hon ble Apex Court, he was granted liberty to approach the learned Trial Court afresh for seeking bail in case of change in circumstances, or in case the trial is protracted and proceeds at a snail s pace in next three months, after taking into account the submission made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sal of the earlier bail application, including the present judgment. Observations made above, re.: right to speedy trial, will, however, be taken into consideration. The appellant Manish Sisodia may also file an application for interim bail in case of ill-health and medical emergency due to illness of his wife. Such application would be also examined on its own merits. 44. Learned Senior Counsels for the applicants have insisted that the proceedings before the learned Trial Court in this case have moved at snail s pace, and the cause for such delay is not attributable to the present applicant and in view of the judgment of the Hon ble Apex Court, especially the observations in para 28 and 29 which are unambiguous and clear, such delay in itself becomes a ground for grant of bail as no person can be incarcerated indefinitely without being pronounced guilty. They have also argued that the merits of the case have already been decided once by the Hon ble Apex Court, and the phrase on merits as appearing in paragraph 29 would mean the merits of the fresh bail application only, which has been filed on the ground of delay in trial. 45. Learned Special Counsel for the Directorate of Enforc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon ble Apex Court that all disputed factual and legal issues were left open. 49. After carefully considering the observations made by the Hon ble Supreme Court, this Court is of the opinion that: (i) Firstly, the Hon ble Supreme Court had granted only liberty to the present applicant Sh. Manish Sisodia to institute a fresh bail application before the learned Trial Court either in case of change in circumstances or if the trial is protracted and proceeds at a snail s pace in the next three months. (ii) Secondly, it was clearly expressed by the Hon ble Supreme Court that any such fresh bail application would be considered and decided by the learned Trial Court on merits , without being influenced by the dismissal of earlier bail applications including the ones dismissed by the Hon ble Supreme Court. (iii) Thirdly, it was also observed that the observations made in the judgment dated 30.10.2023, either way, were only for the purpose of disposal of those appeals. (iv) And fourthly, it was directed that while considering the fresh bail applications, the learned Trial Court shall also take into account the observations made by the Hon ble Supreme Court qua the right to speedy trial. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also observed that despite the apparent attempts to slow down the progress of the case, it could not be regarded as proceeding at snail s pace . 55. After considering the rival contentions, this Court is of the opinion that it shall be crucial to first take note of the applications preferred by the applicant Sh. Manish Sisodia, which were either filed or disposed of, after the judgment dated 30.10.2023 by the Hon ble Apex Court in case of Manish Sisodia (supra). Applications preferred by the Applicant in CBI case before the Ld. Trial Court S .NO . DATE OF APPLICATION / ORAL SUBMISSION NATURE OF APPLICATIONS/ ORAL REQUESTS WHETHER THE APPLICATION WAS ALLOWED BY THE LEARNED TRIAL COURT? 1. 10.11.2023 Seeking permission to meet his wife physically for five days in custody. The said application was allowed by the learned Trial Court vide order dated 10.11.2023 2. 05.12.2023 Seeking permission to sign some affidavit and Vakalatnama The said application was allowed by the learned Trial Court vide order dated 05.12.2023. 3. 22.12.2023 Application under Section 207 Cr. P.C. The said application was disposed of by the learned Trial Court vide order dated 19.01.2024. However, the request in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication was withdrawn by the Applicant as the order in the regular bail application was reserved by the learned Trial Court. Applications preferred by the Applicant in E.D. case before the Ld. Trial Court S.NO. DATE OF APPLICATION / REQUEST NATURE OF APPLICATIONS/ ORAL REQUESTS WHETHER THE APPLICATIONS WERE ALLOWED BY THE LEARNED TRIAL COURT? 1. 19.07.2023 Application filed by the applicant for supply of missing documents and legible copies under Sections 207/208 of Cr. P.C. The said application was allowed by the learned Trial Court vide order dated 25.08.2023 2. 12.10.2023 Application seeking supply of missing digital data/ pen drive/HD under Sections 207/208 of Cr. P.C. The said application was allowed by the learned Trial Court vide order dated 11.12.2023 3. 21.11.2023 Application seeking supply of missing/ legible copies of documents under Sections 207/208 of Cr.PC. The said application was allowed by the learned Trial Court vide order dated 21.11.2023 4. 19.01.2024 Application for Inspection of Non-RUDs The said application was allowed by the learned Trial Court vide order dated 07.03.2024 5. 20.01.2024 Application seeking CCTV footage of interrogation period. The said app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atorily 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. 57. This Court notes that in a case of conspiracy which involves multiple accused persons, it is but natural that each accused, who may have a different advocate will have to be provided with a separate set of chargesheet and documents. This right, to be supplied with the relevant documents before the stage of framing of charge, is enshrined in Section 207 and 208 of Cr. P.C., which provide as under: 207. Supply to the accused of copy of police report and other documents. In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:- (i) the police report; (ii) the first information report recorded under section 154; (iii) the statements recorded under sub-section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hra Pradesh, Suo Moto Writ (Crl.) No. 1/2017 decided on 20.04.2021 , has made the following observations with respect to the supply of relevant documents as well as supply of list of un-relied documents to an accused: This court is of the opinion that while furnishing the list of statements, documents and material objects under Section 207/208 Cr. P.C., the magistrate should also ensure that a list of other materials, (such as statements, or objects/ documents seized, but not relied on) should be furnished to the accused. This is to ensure that in case the accused is of the view that such materials are necessary to be produced for a proper and just trial, she or he may seek appropriate orders, under the Cr. P.C. (Section 91 referred at footnote), for their production during the trial, in the interests of justice. It is directed accordingly; the draft rules have been accordingly modified. 60. Therefore, 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. 61. However, it is also important to en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts or articles which were seized by officers of CBI during the course of above searches is rejected. Though, the legality of above search proceedings has also been questioned by Ld. Counsel representing the said accused, but it will be a matter of trial only. With these observations, this application stands disposed off. 64. The record in the case registered by CBI, including the order sheets of the learned Trial Court, further reveals the following facts: (i) As per direction of the learned Trial Court vide order dated 19.10.2023, the process of inspection of un-relied documents and un-relied statements of witnesses was to be concluded by the defence counsels by 22.11.2023. However, the counsels of the accused persons did not complete the inspection of un-relied documents and un-relied statements of witnesses by the said date. (ii) In view of the same, the learned Trial Court vide its order dated 22.11.2023 had directed the defence counsels to conclude the inspections by 22.12.2023. In compliance with the said order, the counsel for the applicant visited the CBI office for the purpose of inspection of un-relied documents and statements of the witnesses only for four days and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grievances and seeking permissions for small and big reliefs such as signing of a cheque in custody, signing of Vakalatnama in custody, meeting their family members, permission to carry with them articles such as kettle, reading material, custody parole etc. The list can be endless as the circumstances and situations an undertrial faces cannot be foreseen. These permissions can only be granted by the learned Trial Courts and cannot be termed as frivolous. Different Players and Factors Affecting the Speed of Trial 68. While the prosecution as well as the defence are two of the key players playing a crucial role in the trial process, the speed of a trial cannot be solely attributed to the actions of either of them. Rather, the speed of a trial is influenced by a multitude of elements and a combination of various factors, including the complexity of the case, the volume of evidence, the availability of witnesses, the efficiency of legal procedures, and the judicial workload, among several other factors. These factors , combined together, often affect the pace at which a trial progresses. 69. The duration of pre-trial proceedings, which includes the mandatory procedures and steps prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestigating accused(s) and witnesses in different states, have also added to the length of investigation spread over different states of the country, leading to filing of supplementary chargesheets/prosecution complaints. 74. In light of these realities, it is understandable that the commencement or conclusion of trial may take longer time than anticipated initially. 75. Further, in case the learned Trial Court would not have given the accused persons an opportunity or would have allowed their applications for supply of copies, it would have adversely affected the rights of the accused persons. For the last six months, the accused persons have been moving applications on various grounds for supply of copies or inspection of record. 76. In such circumstances, it will be travesty of justice to hold that the delay was on part of Directorate of Enforcement or Central Bureau of Investigation since the prosecution has consistently complied with all the orders of the Courts and had supplied copies which were being demanded by the accused persons for the purpose of addressing arguments on charge. The prosecution did not take time or delay commencement of trial by not providing them copies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of investigation. There are sixteen accused who have been charge-sheeted in the case till date and conclusion of hearing on charges on behalf of prosecution as well as on behalf of these sixteen accused may take a considerable time and a possibility can not be ruled out that any of the other offenders or suspects is made to join investigation in the meanwhile or any supplementary chargesheet is filed again consequent upon his arrest and on conclusion of investigation qua him. However, then the court may stop or halt the hearing on charges till the copies of such supplementary chargesheet and documents filed and relied upon in support thereof are supplied to all the accused persons and the same are scrutinized. The accused shall also get an opportunity in such a situation to address their arguments qua the above documents or evidence brought on record or witnesses added to the list of prosecution through such supplementary chargesheet. However, if any fresh evidence qua the accused who have already charge-sheeted in this case is also collected by the investigating agency during the course of such further investigation and the same is required to be used even qua these accused, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he process of inspection of un-relied documents in the malkhana of the concerned Investigating Agency. 84. However, this Court is also of the opinion that for the purpose of arguments on charge, there was no need to completely inspect all the un-relied documents as they can be used only at the stage of trial which has not commenced yet, and only a list of un-relied documents is to be provided to the accused persons before arguments on charge, as per the judgment of Hon ble Apex Court in case of In Re: To issue certain guidelines regarding inadequacies and deficiencies in criminal trial (supra). Be that as it may, the order of the learned Trial Court dated 07.03.2024 allowing the physical inspection of un-relied documents by the accused persons has not been challenged by the Directorate of Enforcement, and thus, the counsels for accused persons are now physically inspecting thousands of un-relied documents, which is also beyond the control of the Directorate of Enforcement and it is unclear as to how much time will they take to inspect the said record. 85. It was also not the fault of either the investigating agencies or the learned Trial Court that there have been multiple accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be necessary to consider the principles of law, which govern the grant of bail, both in relation to the case registered by CBI for offences under the Prevention of Corruption Act, and by Directorate of Enforcement for offences under the PMLA. 90. The principles and factors governing grant of regular bail under Section 439 of Cr. P.C., as summarised by the Hon ble Supreme Court in case of Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14 SCC 496 are as follows: 9. (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. 91. The relevant observations of Hon ble Supreme Court in case of Nimmagadda Prasad v. CBI (2013) 7 SCC 466 , are also extracted hereunder: 24. While granting bail, the court has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 45 of PMLA as well as gravity of offence of money laundering, which are extracted hereunder: 387. Now, the provision (Section 45) including twin conditions would apply to the offence(s) under the 2002 Act itself. The provision post 2018 amendment, is in the nature of no bail in relation to the offence of money-laundering unless the twin conditions are fulfilled. The twin conditions are that there are reasonable grounds for believing that the Accused is not guilty of offence of money-laundering and that he is not likely to commit any offence while on bail. Considering the purposes and objects of the legislation in the form of 2002 Act and the background in which it had been enacted owing to the commitment made to the international bodies and on their recommendations, it is plainly clear that it is a special legislation to deal with the subject of money-laundering activities having transnational impact on the financial systems including sovereignty and integrity of the countries. This is not an ordinary offence. To deal with such serious offence, stringent measures are provided in the 2002 Act for prevention of money-laundering and combating menace of money-laundering, including ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings relating to proceeds of crime under the Act, in the case of a person charged with the offence of money laundering under Section 3, such proceeds of crime are involved in money laundering. Such conditions enumerated in Section 45 of PML Act will have to be complied with even in respect of an application for bail made under Section 439 Cr. P.C. in view of the overriding effect given to the PML Act over the other law for the time being in force, under Section 71 of the PML Act. (emphasis supplied) 96. At the stage of considering the bail application of a person, who is accused of committing the offence of money laundering under PMLA, the Court is not required to conduct a mini-trial to establish his guilt as provided under Section 45 . Instead, the Court s role is to scrutinize the material on record to determine whether there are reasonable grounds to believe that the accused is guilty of the offence under PMLA. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Timeline of Events reflecting the Role of Applicant Sh. Manish Sisodia 101. For a clear understanding, the timeline of the events that transpired in this case, as alleged by the Central Bureau of Investigation and Directorate of Enforcement in their chargesheets and the fourth supplementary prosecution complaint respectively, on the basis of investigation conducted so far, is encapsulated below: DATE EVENT ROLE OF THE PRESENT APPLICANT SH. MANISH SISODIA 04.09.2020 An Expert Committee, headed by Sh. Ravi Dhawan, IAS, the then Excise Commissioner, was constituted by Sh. Manish Sisodia, the then Deputy Chief Minister of Delhi, which was tasked with providing suggestive measures for simplifying liquor pricing mechanism, checking malpractices, ensuring equitable access to liquor supply, etc. The Deputy Commissioner (Excise) and Additional Commissioner (Trade Taxes) were also the other committee mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the South Group representatives, to obtain print-out of a 36 page document, which is evident from the records/bills of Oberoi Hotel. This 36 page document was allegedly the proposed draft of the GoM report. 18.03.2021 ● Sh. C. Arvind, Secretary to Sh. Manish Sisodia was called by Sh. Manish Sisodia to the official residence of Chief Minister Sh. Arvind Kejriwal, and was handed over a document by him. He was asked to prepare the fresh draft of the GoM Report on the basis of the said document. ● As per the statement of Sh. C. Arvind, this document contained 38 pages, i.e. 36 pages plus 1 title page plus 1 index page. ● As per the case of prosecution, this matches with the 36 page document, print out of which was taken at the Oberoi Hotel. 18.03.2021 to 19.03.2021 ● The document given by Sh. Manish Sisodia to Sh. C. Arvind at the house of Sh. Arvind Kejriwal, was typed by Sh. C. Arvind on the computer placed in the Conference Hall of office of Sh. Manish Sisodia. ● During investigation, the last modified date of the said file, found on the computer, was 19.03.2021. ● In this document, profit margin of LI wholesalers was mentioned as 12%, whereas th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Special Duty in the Excise Department, and directed them that Pernod Ricard must engage M/s Indo Spirits for its wholesale business, instead of Brindco. This was revealed through statements dated 14.09.2022 and 17.11.2022 of Sh. Benoy Babu and Manoj Rai, as well as certain screenshots of chats retrieved from the mobile phone of Sh. Benoy Babu. 20.09.2021 A dinner was hosted at Taj Mansingh Hotel by Pernod Ricard for South Group cartel, which was attended by Sh. Sameer Mahendru, Sh. Sarath Reddy, Sh. M.S. Reddy, Sh. Manoj Rai, Sh. Benoy Babu, Sh. Arun Pillai, Sh. Abhishek Boinpally and others. This dinner was meant to acknowledge the agreement regarding wholesale distribution between the Pernod Ricard and M/s Indo Spirits. This fact is corroborated by the statements of Sh. Sameer Mahandru and Sh. Arun Pillai. 08.11.2021 Wholesale Distributor License (L-1) was allotted to M/s Indo Spirits, after Sh. Manish Sisodia had directed the concerned officers to allot the said license on priority basis. 17.11.2021 The Excise Policy 2021-22 was implemented. 20.07.2022 Letter was written by Lt. Governor, Delhi alleging irregularities in framing and implementation of Delhi Excise Policy 2021- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. 107. Thus, 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 108. The Directorate of Enforcement has found during its investigation that Sh. Manish Sisodia had directed interns from the Delhi Minorities Commission to send emails containing suggestions and comments on the Expert Committee Report. However, the content of these email ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment on 24.03.2023. He recounted that on 14.01.2021, Sh. Zakir Khan had called him and other interns to his office, where he had instructed them to send emails to Sh. Manish Sisodia and the Excise Department using pre-written content provided by Sh. Khan. This content, containing recommendations for the Delhi Excise Policy, was shared in the WhatsApp group DMC Jan. 21 . Following Sh. Khan s instructions, Sh. Azad had directed the interns to send the emails and he had subsequently collected screenshots of the sent emails, which he had thereafter forwarded to Sh. Khan via WhatsApp. 112. Statements of other interns also corroborate the accounts given by Sh. Zakir Khan and Sh. Kartikeya Azad. 113. It also came on record during investigation that some more emails containing similar content as noted above were recovered from the email dump of Sh. Manish Sisodia. Statements of Ms. AS and Ms. RR, recorded under Section 50 of PMLA, indicated that in January 2021, Ms. AS, who was working at the Delhi Assembly Research Centre, was asked by Sh. Rajesh Gupta, an MLA from AAP, to send an email with provided content. Ms. AS admitted in her statement that she did not understand the contents of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 119. The investigation also revealed that on 28.01.2021, Sh. Rahul Singh, the then Excise Commissioner, and other officials had submitted the draft Cabinet note containing these legal opinions. However, Sh. Manish Sisodia had allegedly scolded him for including the legal opinions and subsequently had him transferred on 01/02.02.2021. Following this, Sh. Sanjay Goel, the new Excise Commissioner, submitted a revised Cabinet note on 04.02.2021, excluding the opinion of legal experts, as directed by the present applicant Sh. Manish Sisodia. 120. These facts are supported by the statements of Sh. Rahul Singh, Sh. Gaurav Mann, Sh. C. Arvind and Sh. Sanjay Goel, recorded under Section 50 of PMLA, as well as the photograph of Draft Cabinet note prepared by Sh. Rahul Singh recovered from the mobile phone of Sh. Gaurav Mann. No Reasons to Justify Increase in Wholesale Profit Margin from 5% to 12% 121. It is a matter of fact that in the new Excise Policy, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 127. 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 128. By formulation of the liquor policy in question, an uneven level playing field was also created as far as the retailers of liquor are concerned, which is evident from the provisions of the Policy. 129. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vestigation. 135. Therefore, 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. Role of Applicant Sh. Manish Sisodia in Commission of Offence of Money Laundering under Section 3 of PMLA 136. The case of Directorate of Enforcement, in a nutshell, is that being the concerned Minister responsible for formulation of the Excise Policy, the applicant Sh. Manish Sisodia had formulated and implemented the Policy in a way which would allow illegal gains to certain persons/entities, which as per prosecution, was done in exchange of advance kickbacks received from them. Therefore, Sh. Manish Sisodia was instrumental in creating an entire ecosystem for generating, concealing, projecting as untainted, possessing and using the proceeds of crime. 137. It is crucial to note that Section 2(1)(u) of PMLA provides that any property derived or obtained directly or indirectly as a result of scheduled offence as well as of criminal activity related to S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod is to the tune of Rs. 338 Cr. (7% additional profit earned due to increase from 5% to 12%, Rs. 581 Cr being the total profit of LI as informed by Excise department). Therefore there is no logical correlation between the license fee increase and the profit margin increase. Whereas this excess profit margin benefit could have been passed on to the consumers in form of lower MRP. Contrary to the claim that the policy was meant to benefit the public or the exchequer, it was rather a conspiracy to ensure massive illegal gains to a select few private players/individuals/ entities. 139. Thus, the Hon ble Apex Court has observed that there is no dispute about the fact that the wholesale distributors had earned profits of Rs. 581 crore during the period of ten months, and excess profit earned by them, due to increase in their margin from 5% to 12%, was Rs. 338 crore, which the prosecution alleges to be the proceeds of crime. 140. This Court further notes that the case of prosecution, as per the fourth supplementary prosecution complaint, is that the applicant Sh. Manish Sisodia is directly and knowingly involved in the processes or activities which are related to proceeds of crime. Tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se Department. ➔ An Expert Committee was constituted by Sh. Manish Sisodia for the purpose of reforming the liquor trade in Delhi . ➔ The Report submitted by the Expert Committee included suggestions such as: (i) handing over wholesale operations of entire Delhi to one Government entity, (ii) opening of private liquor vends through lottery system instead of auction/bidding system to prevent carterlization, etc. ➔ These suggestions of the Expert Committee Report were against the pre-determined agenda of Sh. Manish Sisodia. Therefore, the report of Expert Committee was put up for public suggestions/feedback on the website of the Excise Department ➔ To circumvent the suggestions of the Expert Committee Report, planted emails containing content which was in contrast to the suggestions of Expert Committee report, were prepared by Sh. Manish Sisodia to suit his purposes and aim. ➔ On the directions of Sh. Manish Sisodia, some students interning with the Delhi Minorities Commission and Delhi Assembly Research Centre were asked to send these pre-decided emails on the official Email ID of Excise Department, as their opinion on the new Excise Policy. ϵ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w policy, the profit margin of wholesale distributors (L-1) was increased from 5% to 12%, without any reasonable justification. This ended up in wholesale distributors earning additional profits of Rs. 338 crores in a span of 10 months. (c) During this period, total profit earned by one wholesale distributor i.e. M/s Indo Spirits alone was Rs. 193 crores out of Rs. 581 crores. WHETHER CASE FOR GRANT OF BAIL IS MADE OUT, ON MERITS? 143. In the initial discussion of this judgment, this Court has referred to the principles which would ordinarily govern the grant of bail for offences under the PC Act and the PMLA. The triple test for grant of bail, require that the following factors be taken into consideration: (i) Whether the accused is a flight risk? (ii) Whether the accused can tamper with evidence if released on bail? and (iii) Whether the accused can influence witnesses if released on bail? 144. In addition to the triple test, the Courts have to also consider other factors such as the nature of offence and severity of punishment, nature of evidence collected by the investigating agency, etc. while adjudicating an application seeking grant of regular bail. Furthermore, while consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of the triple test regarding influencing the witnesses or tampering with evidence have not been satisfied since Sh. Manish Sisodia in the past has allegedly destroyed evidence and there is prima facie material on record with the investigating agency in this regard. 147. Therefore, this Court is of the view that the applicant Sh. Manish Sisodia fails to satisfy the triple test for grant of bail. 148. As far the offence of money laundering under PMLA is concerned, Section 45 of PMLA provides that for the purpose of granting bail to an accused, the twin condition test is to be passed wherein, the Court will have to arrive at a finding, even if on the basis of broad probabilities of the case, that the accused is not guilty of offence of money laundering. 149. In this case, however, after considering the material placed on record by the prosecution, which has been discussed in the preceding paragraphs in detail, this Court is of the view that prosecution has made out a prima facie case of commission of money laundering under Section 3 of PMLA against Sh. Manish Sisodia, at this stage. It is to be noted at the outset that the requirement of recovery of cash amount from a particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocess or activity connected with the proceeds of crime. 152. Therefore, the applicant Sh. Manish Sisodia also fails to cross the bar and rigours of Section 45 of PMLA as this Court cannot arrive at a conclusion that Sh. Manish Sisodia is prima facie not guilty of offence alleged against him on the basis of the material placed before this Court. 153. 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? 154. Learned Senior Counsels for the applicant Sh. Manish Sisodia had argued that the applicant is entitled to grant of bail, even solely on the ground that the trial has not yet commenced and it is still at the stage of scrutiny of documents under Section 207/208 of Cr. P.C. Conversely, learned counsels for the respondents had argued that in ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke long time and the appellant would be incarcerated for indefinite period, is also not well founded in view of the observations made by this Court in case of Vijay Madanlal (supra). On the application of Section 436A of the Code of Criminal Procedure, 1973, it has been categorically held therein that: - 419. Section 436A of the 1973 Code, is a wholesome beneficial provision, which is for effectuating the right of speedy trial guaranteed by Article 21 of the Constitution and which merely specifies the outer limits within which the trial is expected to be concluded, failing which, the accused ought not to be detained further. Indeed, Section 436A of the 1973 Code also contemplates that the relief under this provision cannot be granted mechanically. It is still within the discretion of the Court, unlike the default bail under Section 167 of the 1973 Code. Under Section 436A of the 1973 Code, however, the Court is required to consider the relief on case-to-case basis. As the proviso therein itself recognises that, in a given case, the detention can be continued by the Court even longer than one-half of the period, for which, reasons are to be recorded by it in writing and also by impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that no culprit escapes from the clutches of the law. When the detention of the accused is continued by the Court, the courts are also expected to conclude the trials within a reasonable time, further ensuring the right of speedy trial guaranteed by Article 21 of the Constitution. 160. In case of Satyender Kumar Jain v. Directorate of Enforcement, SLP (Crl) 6561/2023, 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. The relevant observations are extracted hereunder: 33. The appellants were released on bail for temporary period after their arrest and the appellant-Satyendar Kumar Jain was released on bail on medical ground on 30.05.2022, which has continued till this day. He shall now surrender forthwith before the Special Court. It is needless to say that right to speedy trial and access to justice is a valuable right enshrined in the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il addresses. These emails were sent under the guise of public feedback or opinion, by individuals who were instructed to do so by the applicant Sh. Manish Sisodia himself. It has also come on record during investigation that out of more than 14,000 emails received as public feedback only those pre-decided emails were placed before the Council of Ministers/Group of Ministers which were pre drafted by Sh. Manish Sisodia and made to sent to his own people. 165. In this Court s opinion, this deceptive act was a calculated move to create an illusion that the Excise policy was formed after careful consideration of feedback received from the public. But in reality, the feedback was manufactured to justify the applicant s predetermined decision to formulate the Excise policy, in defiance of the Expert Committee Report, to enrich a few individuals, in exchange for kickbacks. It is interesting to note that the public opinion also contained the opinion of legal experts including one former Attorney General of India and two former Judges of the Hon ble Supreme Court, which was obtained by one Retailers Association and sent to the Excise Department as feedback from the stakeholders. It shows t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the co-accused persons who were part of the alleged conspiracy. Judicial Resolve Against Corruption while dealing with applications for bail when investigation is pending 170. While public figures will be accountable for the decisions they make, the Courts have to respond to cases of corruption and money laundering and have to send a strong message that there is no culture of a laid back approach by the Courts in dealing with such cases. 171. Even while granting or denying bail to an accused, the Courts have to assess the seriousness of an offence. Dealing with the present case, this Court notes that the Prevention of Corruption Act was enacted to curb the menace of corruption. The Courts of law apply the laws so enacted to ensure rule of law. 172. If money is used to influence and dominate policy decisions by politicians for the purpose of putting the bribe at the disposal of such public figures, the Courts in such cases have to ensure that the trust of the public still survives in its ability to bring the alleged accused(s) within the fold of law and treat the offence as serious. It is incumbent upon the judiciary to remain steadfast in its pursuit of justice, regardless of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarding the role of Sh. Manish Sisodia, so that justice is not only done but is seem to be done. 179. Accordingly, the present applications seeking grant of regular bail are hereby dismissed. 180. It is, however, clarified that the observations made in this judgment are prima facie in nature which have been made with the sole purpose of deciding the present bail applications at this stage, and the same will not in any manner affect the merits of the case during trial. CRL.M.A. 13610/2024 in BAIL APPLN. 1557/2024 CRL.M.A. 13621/2024 in BAIL APPLN. 1559/2024 181. These applications have been filed on behalf of the applicant Sh. Manish Sisodia seeking permission to physically meet his wife for two days on a weekly basis in custody. 182. It is the case of the applicant that his wife has been suffering from serious medical ailments and over the past year, her condition has deteriorated further. It is further submitted that though family members of the incarcerated person are allowed to meet physically once a week in the jail, however owing to the severe medical condition suffered by her, she is unable to meet her husband physically which is also causing grave mental trauma to her. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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