The Supreme Court rejected the bail application of former Delhi Deputy Chief Minister Manish Sisodia in the Delhi Excuse Policy Case. The appellant was alleged to committed offence under Prevention of Money Laundering Act, 2002 (PMLA).
The appellant – Manish Sisodia, former Deputy Chief Minister of Delhi, and the Aam Aadmi Party (AAP) leader applied for bail in the prosecutions arising from a case registered by the Central Bureau of Investigation under the Prevention of Corruption Act, 1988 and the Indian Penal Code, 1860 and under the Prevention of Money Laundering Act, 2002.
CBI has filed two chargesheets wherein the appellant 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 against the appellant for the offences under Sections 3 and 4 of the PML Act.
The question was whether on the 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 consequences as per the Constitution of India, under the Code of Criminal Procedure, 1973, the IPC, and the General Clauses Act, 1897?
The existing excise policy was changed to facilitate and get kickbacks and bribes from the wholesale distributors by enhancing their commission/fee from 5% under the old policy to 12% under the new policy. Accordingly, a conspiracy was hatched to carefully draft the new policy, deviating from the expert opinion/views to create an eco-system to assure unjust enrichment of the wholesale distributors at the expense of the government exchequer or the consumer.
Vijay Nair, who was the middleman, a go-between, a member of AAP, and a co-confident of the appellant, had interacted with Butchi Babu, Arun Pillai, Abhishek Boinpally and Sarath Reddy, to frame the excise policy on conditions and terms put forth and to the satisfaction and desire of the liquor group.
The appellant was aware that three liquor manufacturers have an 85% share in the liquor market in Delhi. Out of them, two manufacturers had a 65% liquor share, while 14 small manufacturers had a 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 into distribution agreements with multiple manufacturers. This facilitated getting kickbacks or bribes from the wholesale distributors having substantial market share and turnover.
The excess amount of 7% commission/fee earned by the wholesale distributors of Rs.338,00,00,000/- (rupees three hundred thirty-eight crores only) constitutes an offence as defined under Section 7 of the PoC Act, relating to a public servant being bribed. (As per the DoE, these are proceeds of crime). This amount was earned by the wholesale distributors in ten months. This figure cannot be disputed or challenged. Thus, the new excise policy was meant to give windfall gains to a select few wholesale distributors, who in turn had agreed to give kickbacks and bribes.
Justices Sanjiv Khanna and SVN Bhatti observed “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 the case will not be decided within a foreseeable time, the prayer for bail may be meritorious.”
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 the next six to eight months, the court gives liberty 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 and proceeds at a snail’s pace in next three months.
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