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TMI Blog2024 (9) TMI 1176X X X X Extracts X X X X X X X X Extracts X X X X ..... id ECIR"). 2. The Applicant has submitted that he is a highly-educated50-year-old citizen of India who is holding B. Com. (Hons.) from Hindu College, University of Delhi with early training in the U.K. Graduate Honours and Certifications from Harvard Business School, Masters of International Management and Stanford School of Business, Enterprise Program for Growing Companies (EPGC). The Applicant along with his family, run M/s Brindco Sales Pvt. Ltd. ('M/s Brindco' hereinafter), a successful Company that is engaged in the business of sale and distribution of alcoholic beverages for the last 55 years with strong relationship with leading Indian alcohol manufacturing Companies. 3. The brief facts of the case are that the GNCTD released the Delhi Excise Policy for the Year 2021-2022 (hereinafter referred to as the "Excise Policy") on 05.07.2021. After the fulfilment of all the procedures of tenders and allotment, the Excise Policy was implemented on 17.11.2021 by the GNCTD. 4. A Complaint addressed to the Union Home Secretary by the Hon'ble Lieutenant Governor, NCTD vide D.O. Letter No. SLG/Conf./2022/75 alleging large-scale malpractice and corruption in the framing and implementat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rayat, Arvind Kejriwal among others. However, investigation qua the Applicant stood complete at the time of filing of the 3rd SPC which is apparent from the fact that Respondent has made no reference to the applicant in the subsequent Prosecution Complaints. 10. The Applicant submits that being aggrieved by his illegal detention on 17.04.2023, he filed a Regular Bail Application before the Ld. Special Judge, RAC, New Delhi in the ED Case which was dismissed vide Order dated 09.06.2023. Further, the Applicant also sought Default Bail u/s 167(2) of Cr.P.C. before the Ld. Special Judge, Rouse Avenue Court, New Delhi in the ED case which was also dismissed vide Order dated 09.06.2023. 11. Subsequently on 25.08.2023 CBI Registered FIR No. RC 0032023A0033 against Mr. Pawan Khatri and Others including the Applicant and his father, Mr. Birendra Pal Singh. It is essential to note that despite being in custody in Tihar Jail from 01.03.2023, he was never interrogated until lapse of 11 months on 11.07.2024 when the Applicant was interrogated by an Officer of the CBI. It is submitted that there is no evidence implicating the Applicant in the alleged offence mentioned in this FIR except 'self ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Applicant. 17. It is submitted that the Respondent has only interrogated the Applicant once during his period of incarceration with his last dated of interrogation in the ED case on 16.11.2023, showing that his continued incarceration is not required for further investigation. 18. It is submitted on behalf of the Applicant that there is no necessity for his continued custody as he has been in custody for nearly seventeen months while the investigation has been pending for 2 years, the 7th and 8th SPC have been filed on 17.05.2024 and 28.06.2024, respectively and the record consists of over 215 witnesses and over 500 documents running into tens of thousands of pages, therefore, there is no likelihood of the trial commencing in the near future. It is submitted that prolonged and meaningless incarceration is an unjustified and intolerable violation of Fundamental Right to Life and liberty under Article 21 of the Constitution. Reliance for the same has been placed on Javed Gulam Nabi Sheikh v. State of Maharstra Crl. App No. 2787/2024 dated 03.07.2024; Sheikh Javed Iqbal v. State of UP Crl. App No. 2790/2024 dated 18.07.2024; Ashutosh Garg v. Union of India SLP (Crl.) No. 8740/2024; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spiracy. Reliance for the same is placed on Sudhir Shantilal Mehta v. CBI, (2009) 8 SCC 1; Kehar Singh v. State (Delhi Admn.), (1988) 3 SCC 609;and Yogesh v. State of Maharashtra,(2008) 10 SCC 394. Additionally, the initial meeting at Oberoi Maidens occurred on 27.03.2021, by which point the Excise Policy had already been established. The Prosecution Complaint itself mentions that the modified Policy, as detailed in the GoM report, was presented to the Council of Ministers on 22.03.2021. i.e. 5 days prior to the meeting on which the alleged culpability of the Applicant hinges. 24. Further, the ED in its complaint has alleged that the Applicant shared a copy of the policy on WhatsApp on 31.05.2021, before the release of the same in July 2021. It is submitted that in April-May 2021 various WhatsApp groups were created where information regarding the Draft Excise Policy was being circulated en masse; singling out the Applicant by ED is blatant cherry picking. Pertinently, the Policy was available in the public domain as early as 22.03.2021 vide Aabkari Time. Further, as per Sh. Sharad Reddy (South Group) in his 164 Cr.P.C. statement clarified that it was K.Kavitha, Arun Pillai, Abhis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ED, as the kickback ought to have been generated from 6% additional profit margin on IMFL. 29. It is submitted that another allegation made by ED against the other co-accused is that one method of facilitating 'kickbacks' was for the distributors to not recover sale proceeds from the retailers which are then written off as bad debts. It is emphasized that unlike M/s Indo Spirits, which allegedly declared a bad debt of Rs. 60 crore, from the retailers of the South Group, M/s Brindco successfully recovered all its outstanding payments from South Group retailers and has no outstanding is pending on its account. Therefore, the Applicant submits that ED's allegations are purely circumstantial, illogical and inconsistent. 30. It is submitted that the ED alleges that Rs. 2.78 crore was to be paid from M/s Brindco's 12% profit margin but was diverted to non-cartel retailer. However, this Rs. 2.78 crore is already part of the Rs. 179.3 crore profits, and including this separately results in double counting. It is submitted that if the said Credit Notes had to be paid to the South Group, and were instead issued to other retailers, the same have to be a part of the alleged extra 6% mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licant is likely to commit any offence while on bail. 36. It is submitted that gravity of offences alleged per se is not a ground to deny bail. Reliance for the same is placed on Manish Sisodia (supra); Gurbaksh Singh Sibbi and Ors. v. State of Punjab (1980) 2 SCC 565; Sanjay Chandra v. CBI (2012) 1 SCC 40; Sheikh Javed Iqbal @ Ashfaw Ansari @ Javed Ansari v. State of UP 2024 INSC 534. 37. Therefore, the Applicant has thus made a prayer that he may be granted bail in the ED case. 38. The Reply has been filed on behalf of the respondent, wherein preliminary objection has been taken that the Applicant is not entitled to grant of bail as he has failed to satisfy the twin conditions as laid down under Section 45 of PMLA, 2002. He is a highly influential individual and is accused of commission of a white collar crime and has the potential to tamper with the evidences and influence the witnesses. 39. It is submitted that there exists a reasonable apprehension of crucial evidence being destroyed if the Applicant is enlarged on bail. He is involved in the commission of grave economic offences and there is ample evidence on record to link him with the commission of offence of money laun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en to AAP. The Applicant paid kickbacks to the South Group as part of this scheme though Dinesh Arora, Abhishek Boinpally and Chandan Reddy by issuing discretionary/excess Credit Notes to select few Retailers who were part of the South Group/Cartel. It is submitted that the Applicant gave excess Credit Notes for Rs. 4,89,88,961/- from his profit margin to retailers which were being controlled by South group, which was an indirect was of passing on the kickbacks from their profit margin to recoup bribe of Rs. 100 Crore by the South Group. 44. The Respondent/ED submits that as a consequence of the criminal activities of the Applicant along with other related, individual proceeds of crime of at least 186.98 crore have been generated. 45. It is submitted it is well settled that statements under Section 50 PMLA, 2002 are admissible in nature and can be relied upon at the stage of remand or even to reject bail. Reliance for the same is placed on Vijay Madanlal Chaudhary (supra) ; Tarun Kumar vs. Enforcement Directorate, 2023 SCC OnLine SC 1486; Satyender Kumar Jain vs. Directorate of Enforcement decided vide SLP (Crl) 6561/2023; and Rohit Tandon v. Directorate of Enforcement (2018) 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n behalf of the Applicant that there is no evidence whatsoever to establish the role of the Applicant in formulation of Policy. There is no recovery of Policy/GoM Report from the Applicant or from his mobile phone. 52. It is submitted that the stay at Oberoi Hotel during the same period when changes were made in GoM Report, does not prove the Applicant's role in formation of Policy. Only Statements under Section 50 of PMLA, 2002 are there which are not only in material contradiction but also are of the accomplices who are accused in the present case and the same are not reliable. 53. Insofar as the allegations of payment of advance kickbacks are concerned, there is no evidence of the involvement of the Applicant. 54. It is thus submitted that the Applicant not only establishes the twin conditions contained in Section 45 of PMLA, 2002 but also satisfies the triple test. 55. Therefore, it is submitted that the Applicant is entitled to bail. 56. Learned Special Counsel on behalf of the ED has vehemently opposed the present petition. The arguments addressed on behalf of the respondent are essentially on the same lines as contained in its Reply. 57. It has been re-emphasised that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Directorate, 2023 SCC OnLine SC 1486, Satyender Kumar Jain vs. Directorate of Enforcement decided vide SLP (Crl) 6561/2023, State of Bihar & Anr. vs. Amit Kumar, (2017) 13 SCC 751 and Religare Finvest Ltd. vs. State of NCT of Delhi &Anr., decided vide CRL.M.C. 796/2021 by the Co-ordinate Bench of this Court on 14.06.2021. 63. Therefore, it is vehemently submitted that the Applicant should not be released on Bail. 64. Submissions heard and record as well as judgments perused. 65. It is admitted by the parties that the CBI case was registered on 17.08.2022 under Section 120B of the Indian Penal Code, 1860 read with Sections 7/7A/8 of Prevention of Corruption Act, 1988 at Police Station CBI, ACB, New Delhi against Manish Sisodia and 14 others and the Chargesheet in the CBI case was filed without arraying him as an accused. 66. The Applicant was arrested on 01.03.2023 by the ED and was duly produced before the Ld. Special Judge, Rouse Avenue Courts, Central District, New Delhi. Pertinently, the Applicant was not made an accused in the 2nd SPC was filed on 27.04.2023, even after a month of the Applicant's arrest. It was only on 27.04.2023, 3rd SPC was filed by the ED wherein M/s B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt observed that prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial. It was further observed that fundamental right of liberty provided under Article 21 of the Constitution is superior to statutory restrictions and reiterated the principle that "bail is the rule and refusal is an exception". The same has been reiterated by the Apex Court in while granting bail to similarly placed accused under PMLA, 2002 in Kalvakuntla Kavitha v. Directorate of Enforcement 2024 INSC 632 and Vijay Nair v. Directorate of Enforcement in SLP (Crl.) No. 22137/2024 vide order dated 02.09.2024. 73. In Prem Prakash (supra) the Apex Court has held that the fundamental right enshrined under Article 21 cannot be arbitrarily subjugated to the statutory bar in Section 45 of PMLA, 2002 which has been reiterated by the Apex Court while granting bail under the PMLA 2002 in Vijay Nair (supra). 74. Insofar as the role of the Applicant in the present case is concerned, he stands on a better footing that the other co-accused, who have been recently granted bail. 75. The Apex Court in Manish Sisodia (supra) reiterated observation in Gudik ..... X X X X Extracts X X X X X X X X Extracts X X X X
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