Observing series of lapses in investigation, the Supreme Court on Thursday sought to know from the CBI and the ED whether there was any evidence of bribery which could implicate former Delhi Deputy Chief Minister Manish Sisodia in the Delhi Excise policy scam.
At one point the bench observed these kind of probes would collapse the case in trial stage during cross examination.
A bench of Justices Sanjiv Khanna and SVN Bhatti said that merely because lobby groups or pressure groups had called for a certain policy shift, would not by itself imply that corruption or a crime has taken place unless there is an element of bribery involved.
“We understand there is a policy change and everybody wants a change that will be beneficial for them. That will be there. If we say special groups are discriminatory ... without money consideration, it will not make out an offence ... If we go to that extent, there will be no pressure groups or even vested interests when a policy decision is taken then ... Some pressure and conflict will always be there. Of course, bribes cannot be accepted,” the bench observed, questioning the probe agencies.
The Court was hearing bail pleas filed Sisodia, who is in judicial custody in connection with the Delhi excise policy scam case. The bench also queried whether there was any indication that to connect the proceeds of the alleged money laundering activity with Sisodia. “How will you establish money laundering by Sisodia factually and legally? ... He may be aware it may be used, as per your case, but he never came in actual physical possession,” said the Judges, expressing displeasure over the arguments of the agencies, opposing bail to Sisodia.
“Question is, is he not directly or indirectly involved in illegal activity or process? ... When you make a policy that triggers bribes which acts as proceeds of crimes,” replied Additional Solicitor General SV Raju. “Generation of money is not an offence under Section 3 (of the Prevention of Money Laundering Act/ PMLA),” the apex court pointed out. Arguments in the matter will continue next Wednesday.
The scam involves allegations that Delhi Government officials had connived to grant liquor licenses to certain traders in exchange for bribes. The accused officials are alleged to have tweaked the excise policy to benefit certain liquor sellers. Sisodia’s counsel, Senior Advocate Dr AM Singhvi observed that the query was widely publicised in newspaper headlines.
“Yesterday, your Lordships put a query about links with me. Several newspaper headlines say, ‘why is AAP not made a party?’ ... Today morning all the channels are carrying that ED wants to make AAP a party ... A chain starts ... Now they are making AAP accused based on your Lord’s question in the news ... Every channel is running that ‘AAP will be made accused’ ... They have taken our statements made during bail hearings and elsewhere out of context, “ said inghvi, accusing media reporting.
ASG Raju argued that the crux of the case was the formation of a policy that would allegedly allow those who gave bribes to recoup or recover their money in some form. “Old policy did not allow that. Earlier, if someone bribed, they could not be compensated for bribe, so they had policy changed ... Our (CBI) case is how policy benefited some,” the ASG said. He argued that the policy change was deliberately crafted to benefit wholesalers who had paid substantial sums as bribes. He added that the exchequer lost revenue after the excise duty under the new policy was set at 12%.
“Earlier it was that 5% (duty) was minimum and 12% was maximum. No one will keep it more than 5, therefore to make it certain they fixed it at 12% to benefit some. That is the criminal mischief. Therefore the offence,” he added. The ASG also asserted that there was incriminating evidence against Sisodia in WhatsApp messages and emails.
However, the Bench referring to some of these emails and said that advocating for a certain policy and expressing support for it did not necessarily equate to wrongdoing. ASG Raju countered that the Court that the accused had communicated via the Signal app and therefore, their messages could not be traced. The Court inquired whether there was evidence of the accused discussing bribery and if so, whether such discussions would be admissible.
“Have you seen them (co-accused Vijay Nair or Sisodia) discussing this? Will it be admissible? Isn’t the statement (by an approver) hearsay? It is an inference but has to be based on evidence. In cross examination this will fall flat in two minutes,” the Court remarked. The Court also questioned whether the central agencies’ case against Sisodia was entirely hinged only on statements by approvers.
“How do you establish kickbacks were given? Is it entirely on the basis of approvers’ statements?” the Court said. “Indospirits (a liquor distributor, whose MD has been arrested in the case) was earlier not eligible for liquor license. Manish Sisodia came and removed all obstacles, that is his role, all complaints were made to be taken back after threatening. Kindly look,” the ASG replied.
He added that the plan of the accused persons was to give the ‘South Group’ (a liquor group) a monopoly over wholesale liquor sale in Delhi. Three wholesalers were allowed to corner the market, he added. “A wholesale retailer was pressured to walk out without any show cause notice,” the ASG argued. The hearing will continue next week, on Wednesday.