The Delhi High Court Thursday sought responses from Aam Aadmi Party (AAP) communications manager Vijay Nair and Hyderabad-based businessman Abhishek Boinpally in the Central Bureau of Investigation (CBI) plea challenging the bail granted to them by a trial court in connection with alleged irregularities in the now-scrapped excise policy.
A single-judge bench of Justice Yogesh Khanna deferred the hearing of the applications for a stay of the trial court order after noting that both Nair and Boinpally were already in the custody of the Enforcement Directorate (ED) in connection with a probe into alleged money laundering. The matter is next listed on December 5.
Appearing for the CBI, special public prosecutor Nikhil Goel submitted that the agency would file the chargesheet within Friday, when 60 days would expire from the day of the first arrest.
Goel said Nair holds a position in AAP. He said: “Our case is that at the instance of the respondent (Nair) large sums of money came to Delhi. We have evidence to show that Rs 30 crore of cash was received…we have to investigate what happened to the cash and the person who paid, what does he gain?”
Goel said that when the CBI found that Nair had allegedly made two promises for receiving the cash. Nair allegedly said, “we will ensure that the forthcoming excise policy will be modified to include specific sum of 12 per cent which you get if you get distributorship”. He had also promised,“ we will not only get you distributorship but also L-1 distributor license”.
Goel said,” we have found…that the policy was made with clauses like this”. He further alleged that a liquor manufacturer was made to cancel his agreement with another distributor and execute the agreement in favour of people that were giving the cash.
Thereafter, the people who got the dealership applied for a licence and were met with resistance by the public servants who observed that there was an attempt to form a “cartel”. The application was thereafter withdrawn; these persons refiled the application for the grant of licence with the same constituents but with a different name and were granted a licence thereafter.
Goel submitted that there has been an attempt to influence not only policy as well as public servants. “We are at a crucial stage of the investigation,” Goel said.
The CBI challenged the observation of the trial court in the bail order which states that there is no “allegation of against accused of committing a substantive offence under the provisions of IPC”.
Goel argued that in the same line the bail order states that Nair is “only” a part of the conspiracy of irregular framing and implementation of a policy and according to the special judge this part of being “conspirator” is not severe. On this, Goel argued, “can a special judge say that you are only a conspirator…”
On the point, that the trial court had discounted the argument that Nair was involved in the illegal transfer of money because it was not stated in CBI’s reply. Goel said that in an ongoing investigation, certain points cannot be written and it is for this purpose that provisions of Section 172 of the CrPC enable a court to look at the case diary.
On the observation of the trial court that there was no documentary evidence to substantiate CBI’s arguments, Goel said that the test was completely reversed. In a case set up on documentary evidence, a claim can be made that there is less possibility of tampering with evidence. In a case built on oral testimony, the tampering of witnesses is a serious consideration which the trial court ignored while granting bail.
“The special judge said that you have collected a large amount of data and you will need time to analyse…therefore bail granted,” Goel argued, claiming that the finding of the trial court was incorrect on account of the investigation taking time.
“Every single reasoning is perverse…They have not filled up the bail bond. They are in ED’s custody and I’m told that application for further ED remand is listed today,” Goel said.
Appearing for Nair, senior advocate Rebecca John “vehemently opposed” the CBI’s submissions as they were based on “neither facts nor law”. John said that there is a range of judgments that state that “you will not use power of arrest simply because you have the power”. She argued that the “arrests were illegal, after that, I went to the ED’s office five times; gave five of my phones and called for two from abroad”.
John submitted that the special judge gave custody twice to the agency. “On the 45th or 47th day, on my bail application, the special judge gave me bail,” John said, pointing out that earlier bail was granted a lot sooner after arrest. “Today the whole jurisprudence has changed-it is first jail then bail,” John argued. As soon as the bail is granted, the agency runs to the court challenging it, she said.
John said that the agency can get “as many statements of witnesses to say I (Nair) influenced the policy. But there are layers of checks and balances in the policy. It is somebody’s word against mine… The learned special judge only said that your evidence is oral and needs to be tested in trial. That is what courts do. Full play was given to them in police custody remand… As soon as this bail order was passed, I was arrested (by the ED). This is how agencies act in tandem”.
It was at this point the court enquired about the arrests made by the ED. “Why do you want a stay? He is already arrested. He won’t come out,” the court observed.
The high court, thereafter, asked Nair and Boinpally to file their replies to the petition and the application for a stay of bail order within a week.
A Delhi Court on November 14 granted bail to Nair and Boinpally observing that there is no evidence, except oral, to show the transfer of huge amounts of money as alleged by the CBI.
Special Judge N K Nagpal had said: “Except the oral evidence collected in the form of statements, there is also no other evidence or material gathered till date to show the alleged transmission of such huge amounts of money through the applicants by the other co-accused.”
“In any case, the above oral evidence will have to be tested during the course of trial and it will be a matter of time only if it is able to be transformed into an acceptable piece of evidence or not, which can be acted upon by this court,” the court had observed.