SUPREME COURT DENIES BAIL TO APPELLANT AS CBI ESTABLISHES PRIMA FACIE CASE OF HIS INVOLVEMENT IN CORRUPT PRACTICES

A two Judge Bench of the Supreme Court comprising of Justice Sanjiv Khanna and Justice S.V.N. Bhatt passed a Judgment dated 30-10-2023 in the matter of Manish Sisodia vs Central Bureau of Investigation, Criminal Appeal No. 3352 / 2023 and refused the grant of bail to the Appellant-Accused, as prima facie it was established that the Appellant was involved in the conspiracy of drafting and formulating a new Excise Policy to favor liquor licensees, in exchange for obtaining unlawful gain, at the expense of the Public Exchequer.

Facts

i) In the present case, the Central Bureau of Investigation (CBI) had filed two Chargesheets dated 24-11-2022 and 25-04-2023 against the Appellant, Mr. Manish Sisodia, former Deputy Chief Minister of Delhi for the following offences:

a) Section 7 of the Prevention of Corruption Act, 1988 (PC Act) (Offence relating to public servant being bribed),

b) Section 7A of PC Act (Taking undue advantage to influence public servant by corrupt or illegal means or by exercise of personal influence),

c) Section 8 of PC Act (Offence relating to bribing of a public servant) and

d) Section 12 of PC Act (Punishment for abetment of offences),

e) Section 120B of the Indian Penal Code 1860 (IPC) (Punishment of criminal conspiracy),

f) Section 201 IPC (Causing disappearance of evidence of offence, or giving false information, to screen offender) and

g) Section 420 IPC (Cheating and dishonestly inducing delivery of property).

ii) Further, the Directorate of Enforcement had filed a Criminal Complaint dated 04-05-2023 against the Appellant- Mr. Manish Sisodia for the offences under Sections 3 of the Prevention of Money Laundering Act 2002 (PMLA) (Offence of money-laundering)[1] and 4 of PMLA (Punishment for money-laundering)[2].

iii) The main ground for proceeding against the Appellant was that few persons were involved in managing and diverting unaccounted funds collected from Liquor Licensees to the Appellant-Accused, a public servant, who was holding important portfolios including Finance and Excise in the Government of Delhi, in exchange for framing and implementation of excise policy favourable to such Liquor Licensees.

iv) Thereafter, the Appellant sought for bail in the prosecutions arising from FIR bearing No. –RC No. 0032022A00553 dated 17-08-2022 registered by CBI under PC Act and IPC and Enforcement Case Information Report No. HIU-II/14/2022 dated 22-08-2022 filed by the Enforcement Directorate under PMLA, before the Ld. Special Judge, CBI, New Delhi (Trial Court).

v) The Trial Court rejected the Appellant’s Bail Application, vide Order dated 31-03-2023, on the ground that “the applicant had played the most important and vital role in the above criminal conspiracy and he had been deeply involved in formulation as well as implementation of the said policy to ensure achievement of objectives of the said conspiracy”.

vi) Aggrieved by the Trial Court Order dated 31-03-2023, the Appellant filed a Bail Application before the Hon’ble Delhi High Court in Bail Appln. 1097/2023. The High Court, vide Order dated 30-05-2023, applied the Triple Test principle for grant of bail i.e. if the applicant is enlarged on bail, (1) whether the accused will cooperate with the investigation, (2) whether there is any scope of tampering of evidence and witnesses, etc and (3) whether the accused has any criminal antecedents or has been previously involved in any criminal activity. Thus, applying the said Triple Test principle to the present case, the High Court rejected the Appellant’s Bail Application on the following grounds:

a) “The gravity and the allegations do not entitle the accused to be admitted to bail”

b) “..there are serious allegations of the misconduct against the petitioner, the petitioner being an influential person and having held the position of Deputy Chief Minister having 18 portfolios and the witnesses are mostly public servants, there is a possibility of the witnesses being influenced cannot be ruled out. Thus, the petitioner fails the triple test in the view of the seriousness of the allegations and his position. Though the petitioner has resigned from the post of Minister, but still his position is influential qua the witnesses.”

Supreme Court Observations

Aggrieved by the High Court Order dated 30-05-2023, the Appellant filed Criminal Appeal No. 3352 / 2023 before the Supreme Court. The Apex Court, vide Order dated 30-10-2023, made the following observations:

(i) Observations in respect of PMLA:

(1) That in terms of Section 45 of PMLA (Offences to be cognizable and non-bailable), while determining whether to grant bail or not, the Court need not arrive at a finding that the accused has not committed the alleged offence. Rather “for the purpose of considering an application for bail, although detailed reasons are not necessary to be assigned, and, therefore, the evidence need not be weighed meticulously, a tentative finding should be recorded on the basis of broad probabilities.”

(2) Further, the CBI did not mention any charge or allegation in the Chargesheet regarding any amount of Rs. 2,20,00,000.00 (Rupees Two Crores Twenty Lakhs Only) paid as a bribe to the Appellant. Hence, the said amount cannot be considered as ‘proceeds of crime’ under PMLA.

(3) Moreover, the Enforcement Directorate has asserted in its Complaint that Rs. 1,00,00,00,000.00 (Rupees One Hundred Crore Only) was paid by a liquor group, is a matter of debate, and thus, cannot be argued at the stage of bail.

(ii) Observations in respect of PC Act:

(1) The Chargesheet under the PC Act included offences committed by the Appellant for obtaining unlawful gains at the expense of the public exchequer.

(2) Furthermore, CBI had well established the conspiracy and involvement of the Appellant in drafting and formulating a new Excise Policy to favor the Liquor Licensees.

(3) “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.”

(4) “The policy favoured and promoted cartelisation. Large wholesale distributors with high market share because of extraneous reasons and kickbacks, were ensured to earn exorbitant profits.”

(5) Thus, the Supreme Court denied the grant of bail at this stage.

Conclusion

Therefore, based on the aforesaid observations, the Apex Court refused grant of bail to the Appellant. However, the Bench held that it is the basic right of the Appellant-Accused i.e. the person charged of an offence and not yet convicted, that he be ensured and given a speedy trial. Hence, the Prosecution has assured that the trial would be completed within next 6-8 months. But if the trial is not completed expeditiously, the Appellant can file a fresh application for bail before the Trial Court.

Harini Daliparthy

Senior Associate

The Indian Lawyer

 

[1] Section 3 of PMLA: Offence of money-laundering

Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the 1 [proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming] it as untainted property shall be guilty of offence of money-laundering.

Explanation.—For the removal of doubts, it is hereby clarified that,—

(i) a person shall be guilty of offence of money-laundering if such person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with proceeds of crime, namely:—

(a) concealment; or

(b) possession; or

(c) acquisition; or

(d) use; or

(e) projecting as untainted property; or

(f) claiming as untainted property, in any manner whatsoever;

(ii) the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever.

[2] Section 4 of PMLA: Punishment for money-laundering

Whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

Provided that where the proceeds of crime involved in money-laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words “which may extend to seven years”, the words “which may extend to ten years” had been substituted.