In a double whammy for the Aam Aadmi Party (AAP), the Enforcement Directorate (ED) on Monday summoned Delhi Chief Minister Arvind Kejriwal for questioning in an excise policy-linked money-laundering case on November 2, and the Supreme Court on Monday denied former deputy chief minister Manish Sisodia bail in the same case.
Kejriwal (55) has been issued the summons under the Prevention of Money Laundering Act (PMLA) and according to the sources, the agency will record his statement once he deposes before the investigating officer of the case in Delhi.
The ED has mentioned Kejriwal’s name multiple times in its chargesheets filed in the case and said the accused were in touch with the AAP leader regarding the preparation and execution of the now-scrapped Delhi Excise Policy 2021-22.
In a related development, the Supreme Court rejected two separate bail pleas of Sisodia in corruption and money-laundering cases related to the alleged Delhi excise policy scam and said the accusation of “windfall gains” of `338 crore to wholesale liquor dealers was “tentatively supported” by evidence.
A bench of Justices Sanjiv Khanna and SVN Bhatti, which termed several charges levelled by the Enforcement Directorate (ED) against Sisodia as debatable, said, “However, there is one clear ground or charge in the complaint filed under the PML Act, which is free from perceptible legal challenge and the facts as alleged are tentatively supported by material and evidence.”
It referred to the CBI’s chargesheet, which said the excess amount of 7 per cent commission/fee earned by the wholesale distributors of `338 crore constitute an offence as defined under section 7 of the Prevention of Corruption Act, which relates to a public servant being bribed.
The bench said as per the ED’s complaint, the amount of `338 crore constituted the proceeds of crime.
“This amount was earned by the wholesale distributors in a span of ten months. This figure cannot be disputed or challenged. Thus, the new excise policy was meant to give windfall gains to select few wholesale distributors, who in turn had agreed to give kickbacks and bribes,” the bench noted from the CBI’s charge sheet, adding, the “conspiracy and involvement of the appellant – Manish Sisodia is well established”.
Regarding the claim of `2.20 crore bribe paid to Sisodia, as stated by alleged middleman Dinesh Arora, the bench said it is not a charge or an allegation made in the chargesheet filed by the CBI and it may be difficult to regard the alleged payment as a “proceed of crime” under the PMLA.
It noted the ED’s submission that a portion of the alleged proceeds of crime was used by the AAP to fund its Goa election campaign.
“The Directorate of Enforcement (DoE) has stated at the Bar, and in the written submissions, that once the quantum of amount used in the election in Goa is ascertained, a decision to consider AAP as an accused under Section 3 will be taken. It is stated by the DoE that the matter in this regard is being processed,” the bench noted.
The bench said the ED’s allegation that a kickback of `100 crore was actually paid by a liquor cartel is a matter of debate.
“However, there is an assertion, and the DoE has relied on evidence and material, that a portion thereof, that is, `45 crore was transferred through Hawala for the Goa election and used by AAP, a political party, which is a juristic person. The AAP is not being prosecuted. The charge that the appellant Manish Sisodia is vicariously liable in terms of Section 70 of the PML Act cannot be alleged and has not been argued,” it said.
The bench said, “Prima facie, there is lack of clarity, as specific allegation on the involvement of the appellant – Manish Sisodia, direct or indirect, in the transfer of `45 crore to AAP for the Goa elections is missing.”
Justice Khanna, who penned the 41-page verdict said, “In view of the aforesaid discussion and for the reasons stated, we are not inclined to accept the prayer for grant of bail at this stage”.
Referring to a 2020 apex court verdict in a case against Congress leader P Chidambaram, the bench said the former union minister had served 49 days in prison, and it was concerned about the “prolonged” incarceration of Sisodia.
“Detention or jail before being pronounced guilty of an offence should not become punishment without trial. If the trial gets protracted despite assurances of the prosecution, and it is clear that the case will not be decided within a foreseeable time, the prayer for bail may be meritorious,” the bench said.
It added while the prosecution may pertain to an economic offence, it may not be proper to equate these cases with those punishable with death, imprisonment for life, 10 years or more like offences under the Narcotic Drugs and Psychotropic Substances Act, murder, cases of rape, dacoity, kidnapping for ransom, mass violence, etc.
“Neither is this a case where 100/1000s of depositors have been defrauded. The allegations have to be established and proven. The right to bail in cases of delay, coupled with incarceration for a long period, depending on the nature of the allegations, should be read into Section 439 of the Code and Section 45 of the PML Act,” it said.
Sisodia was arrested by the CBI on February 26.
