Excise 'scam': Delhi court grants bail to 2 accused, says case against them prima facie not 'genuine'

A Delhi court has granted bail to two accused persons in a money laundering case related to alleged excise scam, saying the evidence was not sufficient for the case against them to be considered prima facie "genuine".

Special Judge M K Nagpal granted the relief to Rajesh Joshi and Gautam Malhotra on a personal bond of Rs two lakh each and one surety of like amount.

The same judge had dismissed AAP leader Manish Sisodia’s bail plea in the case on April 28 and in a related corruption case, being probed by the CBI, on March 31.

In connection with the bail plea by Joshi, the court said it was of the prima facie view that the evidence was not sufficient to make it believe that the case against him was genuine or that he was going to be held guilty of the offence of money laundering.

On Gautam Malhotra, the court said that the case of the prosecution as based on oral and documentary evidence "cannot be prima facie considered to be a genuine case".

The judge further said in the order passed on May 6 that the mere apprehension that the accused may resort to commission of an offence again will not be sufficient to oppose bail.

He observed that Joshi was not in the liquor business and admittedly, he was also not a participant in any of the meetings which allegedly took place among the other co-­accused or conspirators of the criminal conspiracy in connection with the formulation of the now-scrapped excise policy or its implementation.

Joshi is also not alleged to be a member of the 'South lobby' or the 'liquor lobby' of any region and hence, admittedly, he is not among the persons who are alleged to have paid the kickbacks to co-­accused Sisodia or his other associates, and he is also not a recipient of the kickbacks or bribes, he noted.

On the ED's claim that Joshi was involved in the transfer of advance kickback amount of around Rs 20­-30 crore that was allegedly used in the AAP election campaign for the 2022 Goa assembly polls, the court said there was nothing on record at this stage to link these payments.

It noted Joshi was arrested on February 8 and even prior to that, he was stated to have joined the investigation of this case, as well as that of the connected case being probed by the CBI.

Regarding Malhotra, it noted the ED had claimed that he had paid Rs 2.5 crore as bribe or kickbacks for the 'South liquor lobby' and this fact was specifically stated by co-accused Amit Arora.

However, it pointed out that approver Dinesh Arora expressed total ignorance about this transaction. "The statements on this aspect made by the approver cannot be sidelined or ignored at this stage as he is a star witness," the judge said.

The court further dismissed the ED's contention that Malhotra formed a cartel by participation in the liquor business of Delhi at all the three levels of manufacturing, wholesale and retail, and thus, he became a member of the super cartel and the criminal conspiracy with the other co-­accused.

"Though the above cartel might have been formed in violation of provisions of the excise policy... it appears to be a pure business cartel formed to push the sale of liquor brands of the manufacturing unit(s) of the applicant," it said.

The court noted it was the admitted case of prosecution that Malhotra had not played any role in the formulation of the excise policy and was even not a part of the 'South lobby' paying advance kickbacks of Rs 100 crore.

"Again, he is also not alleged to have paid any such advance kickbacks to co­-accused Vijay Nair, other politicians of AAP or other public servants before or in connection with the formulation of the said policy," the judge said.

The only allegation of payment of any money or bribe against him is in the form of payment of Rs 2.5 crore to co­-accused Amit Arora in May 2022, when this policy had already been in operation for a considerable time, he noted.

Even the evidence in the form of a statement by co­-accused Amit Arora about the payment of Rs 2.5 crore bribe by him is not convincing enough, the court said.

Regarding the ED's claim that the accused received proceeds of crime of Rs 48.9 lakh through excess credit notes, it said no specific or connecting evidence showing any such cash payments against the amounts of credit notes has been produced.

The judge said Malhotra also deserved to be granted default bail since the ED filed an "incomplete" supplementary complaint against him and "it has apparently been filed to scuttle or defeat the right of applicant to seek default bail".

He added that neither Joshi nor Malhotra can be considered a flight risk. The court directed both the accused persons not to leave the country without its permission or threaten or influence witnesses.

However, it is made clear that the observations made in this order are only for the purpose of deciding the bail applications of the applicants and nothing contained in this order shall tantamount to the expression of any opinion on merits of the case, the judge said.

Sisodia, who was arrested on March 9, is currently in judicial custody in the case. The court on April 28 dismissed his bail application in the case, saying the evidence prima facie "speaks volumes of his involvement in commission of the offence".