Excise policy: Delhi HC dismisses bail pleas of Manish Sisodia, Vijay Nair in ED case

After going through the April 28 order of the special judge which had denied Sisodia bail, the HC said it does not find “infirmity or illegality” in it. It further called it a “reasoned order” passed on the basis of “material available on record”.

Justice Sharma further said the HC had also rejected Sisodia’s bail plea in the CBI case on May 30, where it said that “in view of the high political positions held by” Sisodia and his “position in the party in power in Delhi, (the) possibility of influencing witnesses cannot be ruled out”.

“The twin conditions under Section 45 of PMLA are in addition to the triple test. This court is of the considered view that the petitioner has not only been able to pass the twin conditions… but he has also not been able to cross the triple test. I consider, in view of the discussion made hereinabove, the petitioner is not entitled to bail. The petition is accordingly dismissed,” Justice Sharma said.

The HC further noted that there were “serious allegations” against Sisodia, alleging that “the deputy chief minister/excise minister framed the excise policy at the instance of some outsiders, who were going to be beneficiaries of the same. The functioning of the government is such that generally it is done in a discrete manner. The outside public has no means to have any access while policies are framed. The policies are framed under supervision of political heads by senior bureaucrats. The senior bureaucrats in the present case are saying no discussion took place on material points like the increase of margin from 5% to 12%”.
The court further noted that the excise policy was allegedly framed as “a special purpose vehicle to generate proceeds of crime”.

Justice Sharma observed there may not have been any recovery of the alleged proceeds of crime, however, “if the excise policy has been framed for the purpose of generation of proceeds of crime or M/s Indospirit has been constituted in a manner to continuously generate the proceeds of crime, then all stakeholders who were instrumental in framing, drafting and formulating of excise policy are covered under Section 3 of PMLA as their acts and conduct amount to involvement in any process of activity connected with the proceeds of crime”.

On statements of witnesses recorded under Section 50 of the PMLA, the HC said it “clearly indicates that some extraneous factors were working since the time of conceptualisation, formulation and drafting of the excise policy”.

The court, however, added that though the statements recorded under Section 50 PMLA are “admissible in evidence, their evidentiary value has to be weighed at the time of trial”.

“The option before this court is either to go into meticulous examination of witnesses as being argued by the learned defence counsel or to take into account statements recorded under Section 50 of PMLA by the ED. It is correct that the case of ED is based on statements under Section 50 PMLA and can’t be taken as gospel truth but at the same, the court has to take into account probabilities and legislative intent behind enacting Section 50 PMLA… Bare perusal of Section 50 makes it clear that these are deemed to be judicial proceedings. There are consequences for making a false statement or not complying to the summons under Section 50 of PMLA,” the HC said.

On the offence of money laundering under Section 3 of the PMLA, the HC observed that it is not necessary that the alleged person must have acquired or be in possession of the proceeds of the crime; if a person has “actually been involved in any process or activity connected with the proceeds of crime”, that would be sufficient to prosecute him under Section 3.

While dismissing AAP communications incharge Vijay Nair’s bail plea in the ED case, Justice Sharma in a 45-page order said witness statements under Section 50 PMLA on record show that Nair had “indulged and… knowingly assisted in process or activity connected with the proceeds of crime including its acquisition, use, and projection thereof as untainted property”.
“It is pertinent to mention here that it is not disputed that petitioner Vijay Nair is residing in a bungalow allotted to a senior minister of the Government of NCTD of Delhi. This fact itself shows his prominence in the government. Witness after witness have stated in their statements under Section 50 of PMLA that Nair had been interacting with them regarding the new excise policy with full authority,” Justice Sharma said, observing that “at this stage”, the HC cannot “just cannot ignore” witness statements.

The court also noted that the allegations against Nair pertain to “deliberate loopholes” being left out to “facilitate illegal and criminal activities”.

“It has also come on the record that accused Vijay Nair was a close associate of Chief Minister, GNCT of Delhi, and Manish Sisodia, Deputy Chief Minister. Investigation further revealed Vijay Nair arranged a video call… between Chief Minister… and Sameer Mahendru, where Chief Minister said Vijay Nair is his boy and they should trust him. The allegations are extremely serious in nature. The alleged conspiracy has been well spun and there is prima facie credible material on record. This Court also does not find any illegality or perversity in the order of learned Trial Court,” the HC said, adding that the special judge had “correctly” gone through the entire material and gave an opinion in accordance with law.

The HC, thereafter, said it finds no reason to interfere with the special judge’s February 16 order which rejected Nair’s bail plea. “I consider that in view of the seriousness and gravity of the case and the reasoned order of the learned Trial Court, this Court is not able to persuade itself to form an opinion that the petitioner is not guilty of such an offence. Thus, the present bail application stands rejected,” the HC said.