On October 4, a Supreme Court bench led by Justice Sanjeev Khanna, hearing former Delhi deputy chief minister and Aam Aadmi Party leader Manish Sisodia’s bail plea in the Enforcement Directorate case, asked the ED if it had any proof other than the statement of a co-accused who had turned approver against Sisodia.
The CBI arrested Sisodia on February 26, charging him with taking a bribe for tweaking the excise policy of the Delhi government to favour a liquor lobby. On March 8, the ED formally charged Sisodia under the Prevention of Money Laundering Act (PMLA). Since then, Sisodia has been in prison. From the lower courts up to the Delhi High Court, he’s been denied bail.
Justice Khanna, presiding over a two-judge bench which included Justice S.V.N. Bhatti, pointed out that as per the ED’s case, the recipient of the proceeds of the crime was “a political party” and not Sisodia, and asked why the party was not made an accused. “As far as the Prevention of Money Laundering Act (PMLA) is concerned, your whole case is that it went to a political party. That political party is still not an accused. How do you answer that? He is not the beneficiary, the political party is the beneficiary,” Justice Khanna had stated then. On October 17, repeating the same line, after arguments were concluded, Justice Khanna announced that the verdict on Sisodia’s plea would be delivered on October 30. Following this, the ED told the media that it was contemplating making AAP an accused in the case.
On October 30, Justice Khanna wrote the verdict rejecting Manish Sisodia’s bail plea, while raising “some doubts” about some of the charges levelled by the ED. He refrained “from delving… in depth and detail into some of the legal questions arising in the matter and added, “However there is one clear ground or charge in the complaint filed under the PMLA which is free from perceptible legal challenge and the facts as alleged are tentatively supported by material evidence.”
During arguments Justice Khanna, leading the bench, had warned that the ED’s claims against Sisodia “will fall flat” after “two questions in the cross-examination.” The ED had contended that the CBI investigating the alleged act of corruption had claimed that an amount of Rs 2.2 crore was paid by Amit Arora through middleman Dinesh Arora. The bench pointed out that it “is not a charge or an allegation made in the chargesheet filed by the CBI” and “it may be difficult to regard alleged payment as a “proceed of crime under the PMLA.”
The ED had claimed that part of the proceeds of the crime were used to fund the AAP’s poll campaign in Goa. However, the bench noted that the agency said 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 of the PMLA will be taken.” Goa Assembly elections were held in February, 2022. But it is evident from whatever the ED stated in the apex court that after more than 20 months the ED has no idea how much the AAP spent on the Goa Assembly elections. And so there is no substance in its charge.
The bench had also pointed out that “the charge that…Sisodia is vicariously liable in terms of Section 70 of the PMLA cannot be alleged and has not been argued.” The bench mentioned that “prima facie there is lack of clarity, as specific allegation on the involvement of …Sisodia, direct or indirect, in the transfer of Rs 45 crore to AAP for Goa elections is missing.”
It further noted that the ED’s allegation that kickback of Rs 100 crore “was actually paid by the liquor group is somewhat a matter of debate, questioning also the ED’s contention… that generation of proceeds of crime is itself possession or use of the proceeds of crime.”
All the questions the bench raised and observations it made during the course of the arguments clearly demonstrated that it found no substance or strength in the ED’s case against Sisodia.
Sisodia has been in jail for the last eight months, despite the bench finding a very untenable case against the AAP leader. But on October 30, when Justice Khanna delivered the judgement, it went totally against the kernel of his observations during the course of the arguments the ED had extended on Sisodia’s bail plea. That is the mysterious aspect of this case.
The bench stated, “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.” However, perhaps to assuage Sisodia’s hurt in denial of bail, it added that the prosecution had assured that the trial would be completed in six to eight months and added that Sisodia could file a fresh bail application if the trial was protracted.
In effect, the bench ensured that Sisodia is not let out on bail before completing at least a year behind bars, without trial.
What happened between October 17 and October 30 that despite all the pertinent points Justice Khanna had made against the ED arguments, he suddenly found merit in the ED case? That’s a mystery that should engage everyone’s interest.
Faraz Ahmad is a senior journalist based in Delhi.
This piece was first published on The India Cable – a premium newsletter from The Wire & Galileo Ideas – and has been updated and republished here. To subscribe to The India Cable, click here.