Thread by @LiveLawIndia

Delhi Court to shortly hear bail plea of Aam Aadmi Party (AAP) leader and former Deputy Chief Minister of Delhi Manish Sisodia's in CBI’s case alleging corruption relating to excise policy for the year 2021-22.

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Matter will be heard by Special CBI Judge MK Nagpal of Rouse Avenue Courts.

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Senior Advocates Dayan Krishnan and Mohit Mathur are present in court to appear for Sisodia.

SPP DP Singh will be representing CBI.

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Bail application in ED case has been moved on behalf of Manish Sisodia.

Court issues notice.

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Sisodia's bail application in ED case has been listed for hearing on March 25.

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Court commences hearing in Sisodia's bail application in CBI case.

Senior Advocate Dayan Krishnan starts submissions.

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Krishnan: sec. 41A notice given to me. I complied. Then came second round of notice, i responded seeking a little time. 28 February there was another notice. Then i was arrested and i am in custody. Dates of remand are matter of record.

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Krishnan: The requirements of custodial Interrogation no longer survive. We have passed that stage.

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Krishnan: Nothing exceptional has been stated by CBI which would warrant continued custody. Nothing on record to show that Sisodia will be threatening the witnesses.

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Krishnan: Their only issue is about so called destruction of phones. Their case is that the date of reference by LG to CBI is relevant. What is the start point of investigation? It's the date of FIR. This is stretching things to beyond a point which is within four corners of law.

Krishnan: The fact that one phone was changed on the date the matter was referred by LG to CBI is a coincidence as he had no idea that any FIR would be registered.

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Krishnan: It goes without doubt that I've deep roots in society. I've appeared every time i was called before CBI. I am a public servant. There have been 2 public servants in this case, allegations far graver than mine. But they are sent without arrest.

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Krishnan : In your earlier orders, you've dealt with law on bail sir (judge). To repeat that would be waste of time.

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Krishnan now refers to medical condition of Sisodia's wife, informs court that she suffers from multiple sclerosis.

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Krishnan: The entire FIR is based on matters post the tender and not pre tender. I have pointed out that these are govt policies, gone through various stages before finalization.

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Krishnan: LG gave suggestions on policy, they were dealt with, issues put to me today have gone through seal of LG and finance secretary etc.

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Krishnan: Issue of profit margin and tender eligibility was dealt with by LG, it had gone through law secretary and finance secretary.

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Krishnan: The co accused similarly placed to me, who are public servants, were sent without arrest.

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Krishnan: There is no real substantial evidence of tampering with witness or threatening witnesses etc. I request you to kindly grant me bail.

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Senior Advocate Mohit Mathur: Admittedly, these are cases of Max 7 years of offence. When they gave sec 41A crpc notice, they didn't feel the need to arrest me. They justify arrest by saying that person didn't cooperate or answered fully.

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Mathur: In case you've issued 41A notice, the need to arrest has to come from fact whether when i appeared, something changed drastically.

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Mathur: They keep on saying i didn't cooperate at time of my arrest, the fact that in remand application and subsequent remand application, they said same thing.

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Mathur: There is obviously an element of doubt that there is nothing that can be elicited so there is a possibility that nothing can be elicited. So the incarnation cannot be justified.

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Mathur: My movements are in public glare. Where is the apprehension that I will run away? When I've joined investigation, and when their rightful custody, which they claim, is over, any further custody is incarceration which is not justifiable.

Mathur: The matter went up to LG, he made certain points, suggestions came and they were incorporated.

Triple test (for bail) can't be thrown to the winds.

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Mathur: Am i making a prima facie case worthy of trial, then i need not be detained. I dare say, my wife doesn't have anyone else other than me to take care. My son doesn't study in India, he just joined college last year. This ailment is a 20 year old ailment.

Mathur: These are ailments which can't be cured. The process is just degeneration.

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Mathur: It is not that there have not been instances in past where court has considered special peculiar facts.

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Mathur: chargesheet having been filed, investigation having been done, we are now on good 25 days in custody, there is no further need.

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SPP DP Singh commences submissions on behalf of CBI.

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Singh: Let me put things in perspective. They've put it very simply. Person we're dealing with is unprecedented with 18 ministries, we don't find that very often. He is the one who handles finance, also takes care of excise portfolio.

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Singh: Very fairly, he asks his officers to make a report. The excise commissioner with his tema makes a team. This report upsets the simple man....this report was made by department.

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Singh: As a very simple man, he should have either accepted it or not but he gets upset. And he removes because he finds 3-4 things abhorring.

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Singh: Minister removes him and appoints another person and asks him to out a cabinet note. A draft of which is given to him in WhatsApp. And that note is to finalize and give it back and that has to be put because entire expert report was put in public domain.

Singh: To get over it, they said put it in public domain. Although we have statements that a particular type of comment was sought from public.

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Singh: I'll reframe. I said that report was asked to be put in public domain. Whatever comments come they should be put befor GoM. Those comments, many of them, were sought in a particular manner in which the govt wanted. 3 legal opinions also were taken from interested parties.

Singh: These 3 legal opinions were from Mukul Rohatgi, former CJI Rajan Gogoi, and former Justice KG Balakrishnan. These reports also came. They advocated the status quo. It was taken by private players.

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Singh: In his report, the legal opinions were also annexed by Rahul Singh (new appointed person).

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Singh: Rahul Singh did a mistake. He gave and annexed these legal opinions with the report which was to be given to cabinet. Cabinet meeting was there, this was draft cabinet note.

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Singh: When it came, Mr. Manish Sisodia again flared up on successive commissioner of excise, called him by names, whatever he uttered is there in CD.

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Singh: He called him whatever he could say to a public servant and asked for his removal. And more importantly, he might not be a flight risk, but he is a definite risk who will destroy evidence.

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Singh: Minutes of the meeting are not available.

Judge: Cabinet note, entire file isn't traced?

Court is informed whole file is not available.

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Singh: A new officer is then appointed. Change is very short and new officer is Sanjay Goel.

He is given charge. Next day, fresh draft cabinet note is prepared without those legal opinions being part of it and also no reference to whatever was done in time of Rahul Singh.

Singh: There are 4 senior officers who are telling us this in detail.

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Singh: It's not only the mobile phones, files were also destructed. When all these things came out, an ex post facto approval was also tried to be taken. LG had asked he will not take decision, it will be taken by council of ministers. But there were decisions taken by him alone.

Singh: In May it was approved that decision will be taken by council of ministers.

LG had given 7 suggestions on 19 May 2021. On 20th, they started discussing and incorporated changes suggested. It was approved that deputy CM will not take any decision alone but he did so.

Singh: They sought an ex post facto approval for all those decisions.

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Singh: It's not only about telephones, his notices and reply are there. He says because to upgrade the phone..or for some reason they must have been changed. There is no upgradation or done. In three months phone will be outdated?

Singh: Actually chats were happening in those crucial four months in 2021 and therefore frequent change of phones was happening. Because this wasn't the only department he was handling. Person is a saint till the time his irregularities are discovered.

Mathur: These adjectives that they are using...please refrain from using these words....

Krishnan: That's for the press.

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Singh: I am very serious that destruction of evidence was a constant practice. A person is otherwise innocent, i don't think it's an adjective, till the time illegalities are found. It's not adjective, it's a direct allegation.

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Singh: On the other side, they also call agencies by various names. They have license to say whatever they want to say. They've been saying in this case, i don't know why it hurt them....

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Singh: There is a public faith in its govt that they will act for their benefit. They will act fairly. But here, there are sufficient circumstances that I'll show where..

Judge: Were there any complaint from public?

Mathur: Sir, daaru sasti mil rhi thi, aur kya chahiye.

Singh: Our case is that 100 crores were given. Do we find this kind of money which comes through hawala? We've evidence that clauses after clauses were being given to them. And as it is they were made part of the policy, GoM report to be precise.

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Singh: Between 14 and 17 March, 2021, South group had flown and was residing in Oberoi hotel. They reserved the conference room, have their meeting, prepared a note and take out printout...there is a bill of those 36 pages.

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Singh: They take printout from the computer of Mr. Sisodia, take it for meeting. Today our information till now....

Singh: They should also refrain from doing side commentary.

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Mathur: On a lighter side, my senior taught me. When you know the facts, hammer the facts. When you don't know the facts, hammer the bench.

Singh: Hogaya?

Mathur: Pehle apna toh khatam kijiye. Rebuttal rehta hain mera.

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Singh: When we looked into computers, on 15 February, a note is prepared on the computer of Mr. Sisodia, there were two significant things. That the commission was stated to be 5 percent and requirements for eligibility for wholesale was 100 crores.

Singh: In April 2021, everything is prepared. It goes to LG. On 19 April, there is a note that a discussion happened with LG who suggested a point. That input is incorporated without any changes.

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Singh: Whatever recommendation were given on WhatsApp, were taken and they find verbatim in the policy.

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Singh: When licenses were being given, ultimately wholesale chunk had to come to them, there was an understanding with South group with some Indo Spirits, a blacklisted company.

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Singh: Mr. Sisodia told that this has to be done and we have evidence, how many people he was angry at that do it now. Because there was an urgency.

They were ultimately given license against all norms.

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Singh: 65 percent manufacturing is by two big companies. And there are 14 other small manufacturers. Those 65 percent was taken over by South group.

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Singh: The influence and interference is writ large.

I will urge that him being granted bail will scuttle and compromise our investigation.

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Krishnan commences rebuttal.

Krishnan: I am no longer a public servant. I resigned. When i was a public servant, the whole control was with LG.

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Krishnan: Whatever was recorded in this case is with them. Did they issue a 91 notice saying give it to them? No. Because everything was with them.

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Krishnan: Merely because a second view is possible, it doesn't make it a crime. When was the policy challenged on point of arbitrariness? On legal opinions, there are atleast 20 SC judgments which come down heavily on such opinions.

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Court lists matter on March 24 for filing of written submissions by CBI and filing of relevant judgments.

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