The Supreme Court on Wednesday asked the Enforcement Directorate (ED) to explain why the political party (Aam Aadmi Party) which was allegedly the beneficiary of the Delhi Excise Policy 'scam', has not been made an accused in the money laundering case.
The ED has claimed the AAP used Rs 100 crore received as kickback from various stakeholders for its campaign in the 2022 Goa assembly elections.
A bench of Justices Sanjiv Khanna and SVN Bhatti posed the question, as it commenced hearing two separate bail pleas of former deputy chief minister and AAP leader Manish Sisodia in the corruption case being probed by the CBI and the related money laundering case under investigation by the Enforcement Directorate.
"As far as the PMLA case is concerned, your whole case is that it (kickback) went to the political party. It is the beneficiary and not him (Sisodia), but then you have to explain as to why the political party is still not an accused in the case. How do you explain this?" the bench told Additional Solicitor General SV Raju, who appeared for the ED.
Raju said he will reply to the court's query on Thursday when the court resumes hearing Sisodia's bail pleas.
Senior advocate Abhishek Singhvi, representing Sisodia, said it is a case of regular bail as his client passes the triple test doctrine -- he is an MLA and therefore has deep roots in society, he is not a flight risk, and there is no chance of him influencing the witnesses or tampering with evidence.
As per the triple test doctrine laid down by the top court, an accused may be granted bail if he has deep roots in society, is not a flight risk and there is no possibility of him influencing the witnesses and tampering with evidence.
"There is not a single money trail related to him. Everyone else has been granted bail in the case. Unfortunately, in public life there are some high-value targets, and he is one of them, who doesn't get bail," Singhvi said.
During the two-hour hearing, he said there are records to show that the excise policy was not an individual-centric but a collective, multi-layered decision making process, spread over a period of time.
The top court asked the ED to also address the court on whether cabinet notes are justiciable or enjoy the same kind of immunity as the parliamentary proceedings enjoy.
"We would like you (Raju) to address us, and there are judgments of this court, to what extent cabinet notes can be considered. I believe there are specific Constitution bench judgments barring us from examining cabinet notes. I do not know if it applies to Delhi, because it is a Union territory. Though he (Sisodia) has not raised it, but we are putting it to you," Justice Khanna told Raju.
The court told Singhvi as far as policy decisions are concerned, the Prevention of Corruption Act will only apply if there is an element of bribery or any kind of quid pro quo.
Justice Khanna said the court, or for that matter even law is not averse to the wisdom of the government experimenting with the policy as long as there is no question of quid pro quo to benefit a particular third party.
"It needs to be explained whether there is any quid pro quo to change the policy or to cause loss to the exchequer," he told Singhvi.
Singhvi said the new excise policy, which was an institutional decision, busted cartelisation, prescribed licensing conditions as per global standards, and increased revenue for the state while the old policy encouraged cartelisation.
"The new policy restricted the scope for unreasonable profits by the wholesalers and capped it at 12 per cent. There were massive leaks in the old policy," he said, adding that the new norms were made as per the recommendations of a committee.
Singhvi said no money trail led to Sisodia and there was no documentary evidence of him having received a single paisa as bribe.
"This is a fit case for grant of bail as the maximum punishment for the offence is seven years and he has been in custody for over seven months. There is no revenue loss to the exchequer, no quid pro quo existed as the policy was formulated based on the recommendation of former excise commissioner Ravi Dhawan," he added.
The senior lawyer said three secretaries, three ministers, and ultimately the lieutenant governor were involved in the decision making process.
Singhvi explained the contours of the new policy and highlighted the problems with the old policy which he claimed promoted cartelisation and provided incentive to cheat.
Referring to the provisions of the Prevention of Money Laundering Act (PMLA), he said, "You (ED) have to show how Manish Sisodia is involved, not just say he is. You have to show at least some involvement in projection, concealment, possession."
The hearing remained inconclusive and will continue on Thursday.
Sisodia, who held the excise portfolio among the many that he handled as the deputy chief minister, was arrested by the Central Bureau of Investigation (CBI) on February 26 for his alleged role in the 'scam'. He has been in custody since then.
The ED arrested him in a money laundering case stemming from the CBI FIR on March 9 after questioning him in Tihar Jail.
Sisodia resigned from the Delhi cabinet on February 28.
The high court had denied him bail in the CBI case on May 30, saying having been the deputy chief minister and excise minister, he is a "high-profile" person who has the potential to influence the witnesses.
On July 3, the high court had declined him bail in the money laundering case linked to alleged irregularities in the city government's excise policy, holding that the charges against him are "very serious in nature".
In its May 30 order, the high court had said since Sisodia was at the "helm of affairs" when the alleged scam took place, he cannot say he had no role to play.
The high court had said with his party still in power in the national capital, Sisodia, who once held 18 portfolios, continues to wield influence, and since the witnesses are mostly public servants, the possibility of their getting influenced cannot be ruled out.
According to the two federal investigative agencies, irregularities were committed while modifying the excise policy and undue favours were extended to licence holders.
The Delhi government implemented the policy on November 17, 2021, but scrapped it at the end of September 2022 amid allegations of corruption.
