“Where do you draw the line between policy and criminality?” — this is what the Supreme Court asked the Enforcement Directorate (ED) on Monday as the central agency alleged that it has “documents to show the neck-deep involvement” of former Deputy Chief Minister Manish Sisodia in the Delhi excise policy case. The query came from a two-judge bench of Justices B R Gavai and K V Viswanathan while hearing the bail plea of the Aam Aadmi Party (AAP) leader. “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 enough to draw an inference on a Cabinet decision per se?”, Justice K V Viswanathan asked. He added, “There is a book by a former cabinet secretary TSR Subramanian. He said that when India decided to import coal, due to acute shortage, it was instantly decided to import from the available source. “An FIR was registered saying that ‘if only you had waited, you would have got a better price’ .Now, should you not go to Section 10 of the Evidence Act to unlock a prima facie nature of the conspiracy? Show something more than all this, otherwise, Cabinets can't function. Forget this case. This has been a raging issue.I want some clarity.Where do you draw the line between policy and criminality? How do you per se infer?….” he asked. The CBI and ED have registered separate cases in connection with the alleged scam. Additional Solicitor General S V Raju, appearing for the ED said, “It is not a case of mere 5 % or 10% (commission). That’s not our case. There are many circumstances, many factual things which have happened. meetings have happened”. He said the accused “wanted to make money out of this exercise”. “For this, the whole excise policy had to be changed. So they constituted an expert committee under excise department official Rajeev Dhawan. At that time, the wholesalers were getting 5%. This Ravi Dhavan committee said — ‘appoint government companies as distributors and retain the 5%’. to get over this, they invited objections.now there is evidence to show that this particular gentleman engineered certain emails and told certain interns to write a particular type of email.so that they could make a case for not accepting the Ravi Dhavan report,” the ASG added. Pointing out that Sisodia also headed the Group of Ministers, which was in charge of the excise policy, he said that an amount of Rs.100 crore was demanded as a bribe to fund the Goa assembly election campaign. Of this, Rs 45 crore has been traced. “I have documents to show his neck-deep involvement. He is not an innocent person who was picked up. Even the constitution of the group of ministers was a facade", Raju contended. Senior advocate A M Singhvi, appearing for Sisodia, pointed out “the delay in the trial”. He said 17 months have already passed since his arrest in March 2023. “When the trial is not proceeding for reasons not attributable to the accused, the court, unless there are good reasons, may well be guided to exercise the power to grant bail. This is particularly true when the trial would take years,” he said. He referred to the October 2023 order by which the SC denied him bail and said the court had said that he could file a fresh bail application if the trial did not conclude in 6-8 months. Subsequently, on June 4, this year, the apex court said that he would be at liberty to revive his bail plea once the final complaint/chargesheet is filed. Raju said the ‘"revival" of liberty meant that Sisodia could move the trial court and not the SC. Singhvi pointed out that the trial court as well as the HC had already denied him bail and added, “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 the Supreme Court can change it". The senior counsel also contended that the “ED had cited 162 witnesses and filed 25,000 pages of documents. This was in October. Figures now would be interesting. In July, 40 persons were arraigned as accused. CBI cited 294 witnesses, and filed 31,000 pages of documents. Total 493 witnesses.while excluding 4th chargesheet (as cognizance not taken). This is without counting the digital records."
