The Bizarre Logic In Supreme Court's Judgment Denying Bail To Manish Sisodia

"Detention or jail before being pronounced guilty of an offence should not become punishment without trial” - one would think that this is an observation from a judgment which upholds personal liberty. But it is not. This is an observation made by the Supreme Court while denying bail to Aam Aadmi Party leader and former Delhi Deputy Chief Minister Manish Sisodia in the liquor policy scam case. Quite ironic.The judgment delivered by a bench comprising Justices Sanjiv Khanna and SVN Bhatti was rich in platitudes, but short of relief.The bane created by Section 45 of the Prevention of Money Laundering Act (PMLA) is that it forces the Court to undertake a preliminary examination of the evidence on record to ascertain if there is a prima facie case against the accused. The curious aspect in the Manish Sisodia case is that despite debunking most of the charges of the Central Bureau of Investigation(CBI) and the Directorate of Enforcement (ED) at a prima facie level, the Court denied him bail because certain private liquor wholesale distributors were found to have made gains due to the change in the excise policy, even though there is no finding regarding the exchange of kickbacks or loss to the public exchequer.The Court raised doubts about the case of the ED that the liquor group paid kickbacks of Rupees 100 crores to Sisodia and his associates, by terming it “somewhat a matter of debate”.The Court also said that there is no specific allegation about the involvement of Sisodia in the alleged transfer of Rs 45 crores out of the Rs 100 crores to the AAP for the Goa elections. In any case, since the AAP is not made an accused, Sisodia cannot be held as vicariously liable on this count, the Court held."..the assertion in the complaint filed with the DoE that kickback of Rs.100,00,00,000 (rupees one hundred crore only) was actually paid by the liquor group is somewhat a matter of debate. However, there is an assertion, and the DoE has relied on evidence and material, that a portion thereof, that is, Rs. 45,00,00,000 (rupees forty five crores only) was transferred through Hawala for the Goa election and used by AAP, a political party, which is a juristic person. 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"- Paragraph 12 of the judgment.Next, the Court refused to accept the ED's allegation that an amount of Rs. 2.20 crores was paid as bribe to Manish Sisodia by Amit Arora, through middleman Dinesh Arora, since such an allegation is absent in the final report filed by the CBI in the predicate offence.Also, the Court expressed doubts about the ED's proposition that taking bribe, by itself, would amount to the offence of money laundering. The CBI/ED's argument that Sisodia should be held to be in constructive possession of the alleged unlawful gains made by the wholesale liquor distributors also did not appeal to the Court(Para 16 of the judgment)."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 Rs. 45,00,00,000 (rupees forty five crores only) to AAP for the Goa elections is missing."- Para 15Reading so far, you would be definitely under the impression that Sisodia is getting bail. But, then came the twist in the tale. The judgment, which so far had been proceeding on a logical basis, suddenly nosedived into a different realm.From paragraph 21 onwards, the judgment narrated the gist of the allegations in the cases of CBI and ED. The long and short of their cases is that the new liquor policy was framed following the lobbying by certain liquor groups with offer of kickbacks and that the wholesale liquor distributors made profits to the tune of Rs 338 crores as a result of the policy hiking their commission percentage from 5% to 12%.The Court recorded the allegation of the CBI that the excess amount of 7% commission/fee earned by the wholesale distributors of Rs.338 crores constituted an offence defined under Section 7 of the Prevention of Corruption Act, relating to a public servant being bribed. The Court also took note of the ED's allegation that Rs.338 crores are "proceeds of crime.The Court did not undertake any critical examination of these claims to ascertain if there is any prima facie case made out to deny bail on this country. Instead, the Court merely said that these are tentatively supported by material and evidence. After reproducing the allegations of the CBI and ED verbatim, the Court 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”.Is there any prima facie finding that the gains made by the distributors have caused loss to the public exchequer? Is there any prima facie finding that Sisodia or his associates have received any kickbacks out of the gains made by the wholesale...

The Bizarre Logic In Supreme Court's Judgment Denying Bail To Manish Sisodia

Manu Sebastian

Though the Court exposed certain fallacies in the ED and the CBI cases, it refrained from taking the judgment to the logical conclusion.

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