Can Criminality Be Inferred Merely Because Policy Benefited Wholesalers? Supreme Court Asks ED In Manish Sisodia's Bail Plea

While hearing the petitions filed by former Delhi Deputy Chief Minister Manish Sisodia seeking bail in the liquor policy case, the Supreme Court today questioned ED counsel Additional Solicitor General SV Raju as to at what point a line can be drawn between "policy" and "criminality". The matter was being heard by a bench of Justices BR Gavai and KV Viswanathan. During the hearing, Justice Viswanathan posed to the ASG,"Forget this case...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 per se enough to draw an inference on a Cabinet decision? There is a book by former Cabinet Secretary TSR Subramanian who was there when India decided to purchase coal by the virtue of shortage...Equity made a decision to import from available...an FIR was registered saying that if you had waited, you would have gotten better price...he mentions in his book. Now, should you not go to Section 10 of Evidence Act to unlock prima facie nature of the conspiracy? You have to show something more than all this...otherwise Cabinets can't function. Forget this case. This has been a raging issue...I want some clarity...res judicata won't apply to us...where do you draw the line between policy and criminality? How do you per se infer? I am asking in context of criminal...".In response, the ASG said that there were other surrounding circumstances in Sisodia's case, and it was not a case of per se inference from a simple policy decision regarding the increase in commission and wholesaler license fee. The ASG thereafter took the court through the allegations against Sisodia and referred to judicial precedents on issues including delay in trial.As the hearing could not conclude, the matter was re-listed for tomorrow.Details of the present caseSisodia has moved the Supreme Court assailing the Delhi High Court order dated May 21 whereby his second bail plea was rejected. He is seeking bail in the cases filed by the Central Bureau of Investigation and the Directorate of Enforcement under the Prevention of Corruption Act and the Prevention of Money Laundering Act respectively, in relation to the alleged liquor policy scam. He was first arrested by CBI and ED on February 26 and March 9 last year, respectively.While denying bail, the Single Judge Bench of Delhi High Court noted that Sisodia's case depicted a grave misuse of power and breach of trust. Further, it opined that the material collected in the matter showed that Sisodia subverted the process of making the excise policy by fabricating public feedback to suit his goal.Summary of today's proceedings before Supreme CourtSubmissions on behalf of SisodiaThe hearing began with Senior Advocate Dr AM Singhvi (for Sisodia) taking the court through two orders. First, the October, 2023 order, whereby Sisodia's initial bail plea was dismissed, with an observation that if the trial did not conclude in 6-8 months, he would be entitled to file an application for bail. Second, the June 4 order, whereby liberty was given to Sisodia to revive his bail plea after the final complaint/chargesheet was filed.Singhvi argued that even back in October, 2023, the Court was concerned with Sisodia's long incarceration. Since then, the period of 6-8 months has expired, but the trial has not even started.The senior counsel further averred that delay in trial should be read in while considering the question of bail under Section 45 PMLA. "When trial is not proceeding for reasons not attributable to accused, the court, unless there are good reasons, may well be guided to exercise the power to grant bail. This is particularly truer when trial would take years," he said.ED's argument that the "revival" liberty meant that Sisodia can approach the trial court (not the Supreme Court) was countered by Singhvi, by saying that Sisodia went back to the trial Court after he was asked to by the Supreme Court. Since then, he has come up the ladder (reference to the dismissal of bail pleas by both the Trial Court and the High Court) and cannot be asked to go back again to the very courts that decided against him."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 Supreme Court can change it", Singhvi said.On hearing the senior counsel, the bench noted that the June 4 order was passed, without going into arguments of the parties, on Solicitor General Tushar Mehta's assurance that final chargesheet would be filed in 3 weeks.Insofar as it was ED's case that the investigation was complete qua Sisodia, Singhvi referred to the counter-affidavit filed by the agency 4 days back and argued that even as per ED, the investigation was ongoing.Pointing to the bulk of material to...

Can Criminality Be Inferred Merely Because Policy Benefited Wholesalers? Supreme Court Asks ED In Manish Sisodia's Bail Plea

Debby Jain

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