Can Criminality Be Inferred Merely Because Policy Benefited Wholesalers? Supreme Court Asks ED In Manish Sisodia's Bail Plea

While hearing the petitions filed by former Delhi Deputy Chief Minister Manish Sisodia seeking bail in the liquor policy case, the Supreme Court today questioned ED counsel Additional Solicitor General SV Raju as to at what point a line can be drawn between "policy" and "criminality".   

The matter was being heard by a bench of Justices BR Gavai and KV Viswanathan. During the hearing, Justice Viswanathan posed to the ASG,

"Forget this case...From an academic purely criminal law jurisprudence point of view...commission is increased in a given case from 5% to 12%...and profits are made by distributors...Is it per se enough to draw an inference on a Cabinet decision? There is a book by former Cabinet Secretary TSR Subramanian who was there when India decided to purchase coal by the virtue of shortage...Equity made a decision to import from available...an FIR was registered saying that if you had waited, you would have gotten better price...he mentions in his book. Now, should you not go to Section 10 of Evidence Act to unlock prima facie nature of the conspiracy? You have to show something more than all this...otherwise Cabinets can't function. Forget this case. This has been a raging issue...I want some clarity...res judicata won't apply to us...where do you draw the line between policy and criminality? How do you per se infer? I am asking in context of criminal...".

In response, the ASG said that there were other surrounding circumstances in Sisodia's case, and it was not a case of per se inference from a simple policy decision regarding the increase in commission and wholesaler license fee. The ASG thereafter took the court through the allegations against Sisodia and referred to judicial precedents on issues including delay in trial.

As the hearing could not conclude, the matter was re-listed for tomorrow.

Details of the present case

Sisodia has moved the Supreme Court assailing the Delhi High Court order dated May 21 whereby his second bail plea was rejected. He is seeking bail in the cases filed by the Central Bureau of Investigation and the Directorate of Enforcement under the Prevention of Corruption Act and the Prevention of Money Laundering Act respectively, in relation to the alleged liquor policy scam. He was first arrested by CBI and ED on February 26 and March 9 last year, respectively.

While denying bail, the Single Judge Bench of Delhi High Court noted that Sisodia's case depicted a grave misuse of power and breach of trust. Further, it opined that the material collected in the matter showed that Sisodia subverted the process of making the excise policy by fabricating public feedback to suit his goal.

Summary of today's proceedings before Supreme Court

Submissions on behalf of Sisodia

The hearing began with Senior Advocate Dr AM Singhvi (for Sisodia) taking the court through two orders. First, the October, 2023 order, whereby Sisodia's initial bail plea was dismissed, with an observation that if the trial did not conclude in 6-8 months, he would be entitled to file an application for bail. Second, the June 4 order, whereby liberty was given to Sisodia to revive his bail plea after the final complaint/chargesheet was filed.

Singhvi argued that even back in October, 2023, the Court was concerned with Sisodia's long incarceration. Since then, the period of 6-8 months has expired, but the trial has not even started.

The senior counsel further averred that delay in trial should be read in while considering the question of bail under Section 45 PMLA. "When trial is not proceeding for reasons not attributable to accused, the court, unless there are good reasons, may well be guided to exercise the power to grant bail. This is particularly truer when trial would take years," he said.

ED's argument that the "revival" liberty meant that Sisodia can approach the trial court (not the Supreme Court) was countered by Singhvi, by saying that Sisodia went back to the trial Court after he was asked to by the Supreme Court. Since then, he has come up the ladder (reference to the dismissal of bail pleas by both the Trial Court and the High Court) and cannot be asked to go back again to the very courts that decided against him.

"It's a matter of liberty, can this be the interpretation? This is an unfair plea by the prosecution...the word 'revive' is important...Not revive by climbing the ladder all over again...nobody has examined merits. By sending me back, you're sending me to two courts which have decided against me. Only Supreme Court can change it", Singhvi said.

On hearing the senior counsel, the bench noted that the June 4 order was passed, without going into arguments of the parties, on Solicitor General Tushar Mehta's assurance that final chargesheet would be filed in 3 weeks.

Insofar as it was ED's case that the investigation was complete qua Sisodia, Singhvi referred to the counter-affidavit filed by the agency 4 days back and argued that even as per ED, the investigation was ongoing.

Pointing to the bulk of material to be considered during trial, he said, "ED has cited 162 witnesses and filed 25000 pages of documents. This was in October. Figures now would be interesting. In july, 2024, 40 persons arraigned as accused. CBI cited 294 witnesses, filed 31000 pages of documents. Total 493 witnesses...while excluding 4th chargesheet (as cognizance not taken). This is also not counting the digital records."

Singhvi also raised a contention that ED has concealed documents by putting them in unrelied documents. It was claimed that Sisodia was yet to be provided with 16 sets of unrelied documents and inspection was pending.

Additionally, it was emphasized that even after 2.5 years, no recovery had been made from Sisodia. Reliance was placed on a judgment to contend that bail could not be denied merely because allegations were serious.

"A Constitutional Court has to lean in favor of constitutionalism. Article 21 is the overarching consideration", Singhvi remarked.

In reply to a comment by the bench that SG Mehta's assurance to the court had been complied with, Singhvi said that the order concerned completion of trial, not investigation. He added that Sisodia was also seeking interim bail, especially as his wife was facing severe medical ailment.

Submissions on behalf of ED

During the post-lunch session, ASG Raju took over and made submissions. Insofar as the ED case is concerned, ASG's first contention was that the present plea is not maintainable. He submitted that to avail the liberty given by the Supreme Court vide earlier orders (October, 2023 and June 4, 2024), Sisodia has to go before the trial Court.

Countering the emphasis placed upon by Singhvi on the word "revive" (contained in the June 4 order), the ASG highlighted that the Supreme Court disposed of Sisodia's earlier bail plea and did not keep the matter pending. As such, the intention was to leave him recourse to the trial court if the undertaking given was not satisfied, considering that prosecution complaint was to be filed within few days. He cannot file an SLP challenging the same order as before, the ASG said.

At this point, Justice Viswanathan pointed to the ASG that the June 4 order used the term "revive the prayer" and was passed "without going into the arguments".

The ASG however steered the focus of the hearing onto whether the merits of the case had been gone into. He averred that Sisodia has been circumventing a decision on merits and stressing on the ground of delay in trial because if arguments are made on merits, he would lose the case "badly". In this regard, the ASG added the Aam Aadmi Party is also made an accused in the case now.

Hearing him, Justice Gavai remarked that Sisodia did not argue on merits in view of the liberty given by Justice Khanna's bench.

So far as the pleading that Section 45 PMLA has to be satisfied by Sisodia before bail is granted, Justice Gavai remarked that this was considered by Justice Khanna-led bench.

On merits, the ASG submitted that an expert committee (headed by Rajeev Dhawan, an officer of the Excise Department) was constituted by the AAP-led government to go over the Excise Policy. This committee recommended that the government retain control of wholesale distribution. However, to make profit out of the excise policy, Sisodia engineered certain emails to show that the committee report was bad.

The ASG submitted that the commission for wholesalers was increased under the now-scrapped liquor policy from 5% to 12%, without any deliberations or meetings, to obtain benefits from certain wholesalers. He referred to accused-Vijay Nair and Abhishek Boinpally, saying that Nair was the media advisor for AAP, who stayed near the CM bungalow. It was alleged that he met and talked to liquor barons, and ED had evidence on the same.

It was further submitted that Rs.100 crores were demanded as a bribe for Goa elections, out of which Rs.45 crores were traced. "I have documents to show his (Sisodia's) neck-deep involvement. He is not an innocent person who was picked up. Even constitution of group of ministers was a facade", the ASG claimed.

Moving on to the issue of delay, the ASG averred that the delay in trial was attributable to Sisodia as he filed as many as 118 applications before the trial court for one or another reason. These included applications seeking access to unrelied documents, however, the same were not necessary before commencement of trial. Sisodia delayed framing of charges by filing these applications, the ASG alleged. He pointed out that some of the applications seeking inspection of documents were allowed but Sisodia did not inspect those documents for months.

Insofar as the issue of pre-trial detention, the ASG referred to a 3-judge bench decision, saying that Section 436A CrPC was the answer to right to speedy trial for ordinary cases. However, Justice Viswanathan pointed out that Section 436A dealt with a mandatory grant of bail. "It does not mean conditions like 6-8 months etc. can't be prescribed. It was illustrative", the judge said.

Towards the end, the ASG alleged that Sisodia (and other AAP members) is capable of exerting influence and tampering evidence and if Section 45 PMLA rigors are applied, there is no case for bail. He added that AAP came to the forefront on the strength of an anti-corruption morale. As such, considering that many politicians are now engaging in criminal offences (including money laundering), an example has to be set.

In response to Singhvi's submissions, the ASG also clarified that investigation qua Sisodia was complete and ED did not seek time on account of pending investigation against him. "Starting of the trial is not dependent on whether he has been given copy of unrelied documents...Further investigation need not be before trial has commenced. You can get documents/witnesses after trial has commenced. Chargesheet has been filed, they are still looking at papers. 5 months for inspection of documents which are not relevant", he said.

Background

To recap, on June 4, the Supreme Court had disposed of Sisodia's earlier bail plea after taking on record an assurance given by Solicitor General of India that the chargesheet/prosecution complaint in the liquor policy case would be filed on or before July 3, 2024. At the same time, the Court granted Sisodia liberty to revive his prayers for bail after the final complaint/chargesheet was filed.

On July 8, Sr Adv Singhvi mentioned Sisodia's application for urgent listing before the Chief Justice of India. He stressed that Sisodia has been in jail for 16 months and that the trial must conclude. Following this, the matter was listed on July 11 before a three-judge bench comprising Justices Sanjiv Khanna, Sanjay Karol and Sanjay Kumar. However, the matter got adjourned as Justice Sanjay Kumar recused from the hearing of the case.

Sisodia's pleas were next listed on July 16, when a bench comprising Justices BR Gavai, Sanjay Karol and KV Viswanathan issued notice on them, upon hearing Advocate Vivek Jain (appearing for Sisodia), who argued that the leader has remained in custody for 16 months and the trial is at the same stage as it was in October, 2023, when he was given liberty to come back if the trial does not progress.

On the last date, ASG Raju objected to the maintainability of the new petitions filed by Sisodia, submitting that the June 4 order of the Court only enabled Sisodia to file fresh bail applications in the trial court.

However, the bench noted that in the June 4 order, there was consideration on merits and Sisodia was granted liberty to revive his bail pleas once the CBI/ED filed the chargesheet/prosecution complaint. It was further pointed out by the bench that the period of 6-8 months fixed by the top Court for completion of the trial, as per the order passed on October 30 last year, was already over.

In response, the ASG submitted that the delay was attributable to Sisodia. Be that as it may, the matter was adjourned at the request of the ASG, who sought time on behalf of CBI and ED to place the counter-affidavits on record.

Case Title:

[1] Manish Sisodia v. Directorate of Enforcement, SLP(Crl) No. 8781/2024;

[2] Manish Sisodia v. Central Bureau of Investigation, SLP(Crl) No. 8772/2024

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