Excise policy case: What are the 5 key grounds CBI cited to challenge Kejriwal, Sisodia’s discharge

Taking a cue from an oral remark made by the court during the pronouncement of the verdict on Friday, the CBI further pointed out to the HC that the trial court spent four months reading only the file of the case, which, it argued, “shows that the appreciation of the evidence, which otherwise is not permitted at this stage in such detail, is clearly not the exercise that needs to be undertaken at the stage of discharge.”

2. Trial court wrongly evaluated facts and law in the case on a piecemeal-basis

As per the CBI, the trial court has “given its own interpretation to various factual aspects and statements recorded by (CBI) and to documents attached,” while discarding “the approver statements on absolutely untenable grounds”. This, it said, “further reflects the incorrect understanding of law” by the trial court.

“The piecemeal reading of evidence to disregard the conspiracy herein ought to be set aside (by the Delhi HC) when the entire chain of conspiracy stands duly established,” the CBI has submitted.

It also pointed out evidence that the trial court did not appreciate which, according to the prosecution, establishes a chain in the conspiracy: A GoM report, last in the custody of Sisodia, that went ‘missing’; failure to consider evidence of the Excise department’s senior officials attesting that no deliberation at all was conducted with regard to policy formulation; relaxation in turnover criteria for bidders from Rs 500 crore to Rs 150 crore to indicate the liquor importer and distributor M/s Indospirits was favoured; evidence showing bribe money was sent to Goa by the so-called ‘South Group’ who were purportedly being favoured for licenses in Delhi under the policy.

The CBI has also added that “exact details of the upfront money (paid by the South Group) remaining missing is a matter of trial.”

The agency has alleged Rs 100 crore was paid as upfront money by the so-called South Group.

Notably, the trial court, in its order, had observed that the prosecution providing “fragmented circumstances” while relying on the court to “join the dots” by presumption” does not pass the test of “the legal threshold”.

3. Trial court wrongly assessed evidentiary value of approver statements and angadia (hawala) records

Evidentiary value of statements, of “both witnesses and approvers, is a subject matter of trial,” the CBI has contended in its revision plea before the HC.

The trial court, in its order, had criticised the prosecution’s reliance on uncorroborated and shifting statements of approvers and other “accomplice-like” witnesses, while recording that an approver’s statement cannot substitute for foundational facts, and had also noticed that such statements of approvers saw subsequent improvements, all in the absence of independent corroboration of claims made in such statements.

The CBI, in its plea, has argued that the corroborative value attached to such statements are to be seen “when evidence is led to support the charges and not before”.

Additional facts that emerge from statements of approvers “ought not be brushed aside for the simple reason that the terms of tender of pardon to an approver mandate the full and true disclosure by such person for the purposes of evidence,” the CBI has argued.

It has also defended that TDP MP and liquor baron Magunta Reddy’s statements cannot be read as an accomplice-like statement, as the trial court had observed, since “he is not in a position of an accomplice or an accused” as only a bribe demand was made from him allegedly by AAP.

On the trial court dismissing the evidentiary value of angadia records, the CBI has argued that the angadia entries were seized by the Income Tax Department in their raids and the chats of the accused persons with the angadia corroborate such entries.

4. Trial court’s order for departmental action against probe officer “shocking”

Terming the trial court’s direction for departmental action against the investigating officer (IO) not only for the “tainted investigation”, but also for implicating an excise department official despite there being no evidence against him as “shocking to say the least”, the CBI has sought an immediate stay on this.

The CBI has termed that such “adverse remarks against the IO are unwarranted, without any basis and contrary to the facts of the case as well as the settled law,” adding that “irreparable loss” would be caused to CBI if not stayed.

5. Trial court erred in analysing role of Kejriwal through the lens of Sisodia

Stating that Kejriwal was the AAP chief and CM and pointing to the “undue haste” with which the policy was approved on his directions, along with the myriad close associates and confidantes of Kejriwal who were involved in dealings, the CBI said it establishes he was “party to the criminal conspiracy of formulation and implementation of the Delhi Excise Policy since the inception”.

As party head, Kejriwal was the “ultimate beneficiary” of the “ill-gotten” money and all such activities were thus in his knowledge, according to the CBI.

Relying on statements by approvers and others from the party, the agency has claimed evidence shows he was seeking monetary support for the party for the Goa elections and had promised financial support of Rs 90 lakh to each candidate contesting on its ticket.

However, the trial court had dismissed these statements as they do not directly attribute any act of cash handling, transfer, receipt or disbursement and the mere assertion that party volunteers or campaign functionaries incurred expenditure in cash does not, in the absence of linkage evidence, establish the alleged funding trail”.