In a setback to former deputy chief minister Manish Sisodia, the Supreme Court on Monday denied him bail in the corruption and money laundering cases related to the alleged Delhi excise policy scam, saying the accusation of "windfall gains" of Rs 338 crore to wholesale liquor dealers was "tentatively supported" by evidence.
A bench of Justices Sanjiv Khanna and SVN Bhatti, which termed several charges levelled by the Enforcement Directorate (ED) against Sisodia as debatable, said, "However, there is one clear ground or charge in the complaint filed under the PML Act, which is free from perceptible legal challenge and the facts as alleged are tentatively supported by material and evidence."
It referred to the CBI's charge sheet, which said the excess amount of 7 per cent commission/fee earned by the wholesale distributors of Rs 338 crore constitute an offence as defined under section 7 of the Prevention of Corruption Act, which relates to a public servant being bribed.
The bench said as per the ED's complaint, the amount of Rs 338 crore constituted the proceeds of crime.
"This amount was earned by the wholesale distributors in a span of 10 months. This figure cannot be disputed or challenged. Thus, the new excise policy was meant to give windfall gains to select few wholesale distributors, who in turn had agreed to give kickbacks and bribes," the bench noted from the CBI's charge sheet, adding, the "conspiracy and involvement of the appellant Manish Sisodia is well established."
Regarding the claim of Rs 2.20 crore bribe paid to Sisodia, as stated by alleged middleman Dinesh Arora, the bench said it is not a charge or an allegation made in the charge sheet filed by the CBI and it may be difficult to regard the alleged payment as a "proceed of crime" under the Prevention of Money Laundering Act (PMLA).
It noted the ED's submission that a portion of the alleged proceeds of crime was used by the Aam Aadmi Party (AAP) to fund its Goa election campaign.
"The Directorate of Enforcement (DoE) has stated at the Bar, and in the written submissions, that once the quantum of amount used in the election in Goa is ascertained, a decision to consider AAP as an accused under Section 3 will be taken. It is stated by the DoE that the matter in this regard is being processed," the bench noted.
The bench said the ED's allegation that a kickback of Rs 100 crore was actually paid by a liquor cartel is 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 crore was transferred through hawala for the Goa election and used by AAP, a political party, which is a juristic person. 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," it said.
The bench said, "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 crore to AAP for the Goa elections is missing."
Justice Khanna, who penned the 41-page verdict said, "In view of the aforesaid discussion and for the reasons stated, we are not inclined to accept the prayer for grant of bail at this stage".
Referring to a 2020 apex court verdict in a case against Congress leader P Chidambaram, the bench said the former Union minister had served 49 days in prison, and it was concerned about the "prolonged" incarceration of Sisodia.
"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 the case will not be decided within a foreseeable time, the prayer for bail may be meritorious," the bench said.
It added while the prosecution may pertain to an economic offence, it may not be proper to equate these cases with those punishable with death, imprisonment for life, 10 years or more like offences under the Narcotic Drugs and Psychotropic Substances Act, murder, cases of rape, dacoity, kidnapping 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 Section 45 of the PML Act," it said.
The bench said 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, it said, adding in view of the assurance given by the prosecution that they shall conclude the trial by taking appropriate steps within the next six to eight months, "we give 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".
The top court said if any application for bail is filed in the said circumstances, the same would be considered by the trial court on merits without being influenced by the dismissal of the earlier bail application, including the present judgment.
"Observations made on 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," it said.
Sisodia was arrested by the Central Bureau of Investigation (CBI) on February 26 for his alleged role in the "scam". The AAP leader has been in custody since then.
The ED arrested Sisodia in a money-laundering case stemming from the CBI FIR on March 9 after questioning him in Tihar jail. Sisodia, who held the excise portfolio, resigned from the Delhi cabinet on February 28.
The Delhi government had implemented the policy on November 17, 2021 but scrapped it at the end of September 2022 amid allegations of corruption. According to the investigating agencies, the profit margins of wholesalers were arbitrarily increased from 5 per cent to 12 per cent under the new policy.
The agencies have alleged that the new policy resulted in cartelisation and those ineligible for liquor licences were favoured for monetary benefits. However, the Delhi government and Sisodia have denied any wrongdoing and said the new policy would have led to an increase in the Delhi government's revenue.
