Supreme Court grants bail to AAP's Vijay Nair in Delhi excise policy case

The Supreme Court on Monday granted bail to Aam Aadmi Party (AAP) communications-in-charge Vijay Nair, who is an accused in the money laundering case arising out of the Delhi excise policy scam [Vijay Nair vs Directorate of Enforcement]..A Bench of Justices Hrishikesh Roy and SVN Bhatti said that the Enforcement Directorate (ED) has not been able to complete trial on time despite its assurances to the Court, and around 350 witnesses have to be examined."When the case of the co-accused (Manish Sisodia) was taken up by this Court, an assurance was given by the counsel representing the Directorate of Enforcement on 30.10.2023 that the trial would get concluded within 6-8 months. But as can be seen, the trial is yet to commence. As many as 40 persons have been arrayed as accused in the cases with complaints. The prosecution expects to examine around 350 witnesses", the Court observed.The Court further noted that Nair has been in custody for 23 months and that trial against him cannot become a punishment.Bail is rule and jail is the exception, the Court underscored."In the case at hand, the petitioner has been in custody for over 22 months and his incarceration as an under-trial cannot be the mode of punishment in the case ... there is little possibility of trial reaching finality in the near future ... The cardinal principle of bail being the rule and jail being the exception will be entirely defeated if the petitioner is kept in custody as an under-trial for such a long duration", the Court stated.The right of liberty under Article 21 is a sacrosanct right that is required to be respected even in cases where stringent provisions are enacted under special laws like the Prevention of Money Laundering Act (PMLA), the Court said.The Court also took into account the bail orders passed by it in the case of Manish Sisodia and K Kavitha, the other accused in the case."We have also perused the reasoning in this Court’s judgment dated 09.08.2024 in Manish Sisodia v Directorate of Enforcement where Bail was granted to the co-accused. In the said judgment, the Court had reiterated the right of an accused for expeditious trial and that the fundamental rights guaranteed under Article 21 cannot be subjugated to the statutory bar in Section 45 (PMLA)" the bench said.Hence, it ordered that Nair be released on bail subject to the same conditions given in the Manish Sisodia and K Kavitha bail orders..Nair is among the accused in a money-laundering case being probed by the Enforcement Directorate (ED), which arises out of the Delhi excise policy case also being probed by the Central Bureau of Investigation (CBI).It is alleged that officials of the Delhi government had connived to grant liquor licenses to certain traders in exchange for bribes.The central agencies' case is that the excise policy was tweaked and the profit margins changed to benefit certain traders. Kickbacks were received in exchange for the same, it is further alleged.The ED and the CBI registered cases in relation to the alleged scam after Delhi Lieutenant Governor (LG) VK Saxena recommended a CBI probe based on a report by the Delhi Chief Secretary.The allegation against Nair is that he was the person to whom the alleged kickback amount of ₹100 crore was transferred or delivered by the 'South group' liquor lobby.He was granted bail in the CBI case in November 2022.The Delhi High Court had in July last year denied bail to Nair in ED case which prompted him to move the apex court through advocate Binisa Mohanty..Senior Advocate Abhishek Manu Singhvi, appearing for Nair, pointed out that Nair has been custody for 23 months.He said that since charge against Petitioner is under Section 3 and 4 PMLA, the maximum punishment in the event of conviction is 7 years. He also pointed out that bail having been granted to co-accused Manish Sisodia and K Kavitha, Nair should be given relief too."In light of all of these judgments and pronouncements, my submission is that all the alleged mastermind which ED has said to be there, have all been granted bail. ED says that I am an important player but incarceration without trial is same in all the above cases," he argued.Additional Solicitor General SV Raju, representing ED, opposed the bail plea.He said that the threshold for grant of bail under PMLA is very high as per Section 45 PMLA. He also sought to distinguish Nair's case from Kavitha's bail order, arguing that the latter was granted bail on the ground of special consideration allowed to women under the proviso to Section 45 PMLA. The Court after examining the arguments proceeded to grant bail to Nair. .Various AAP and Bharat Rashtra Samithi leaders were arrested by the ED in relation to the case. This includes AAP's Arvind Kejriwal and Manish Sisodia and BRS leader K Kavitha.While Sisodia and Kavitha were granted bail by the Supreme Court, Kejriwal still remains in prison. His bail plea is slated to be considered by the top court on September 5. .Senior Advocates Rebecca M John and Vikram Chaudhri with Advocates Rajat Bhardwaj, Mohd Irshad, Ankita M. Bhardwaj, Kaustubh Khanna, Rishi Sehgal, Pravir Singh, Arveen Sekhon, Muskaan Khurana, and Saurav Kakroda also appeared for Nair.Advocates Zoheb Hossain, Annam Venkatesh, Arkaj Kumar, Vivek Gurnani, Abhipriya, Hitarth Raja, Vivek Gaurav, Shweta Desai, and Arvind Kumar Sharma also appeared for the ED..[Read order}