Excise policy 'scam': SC grants bail to ex-AAP functionary Vijay Nair in PMLA case

New Delhi: In a relief to former AAP communication in-charge Vijay Nair, the Supreme Court on Monday granted him bail after nearly 23 months of incarceration in a money laundering case stemming from the alleged Delhi excise policy scam, observing that liberty is "sacrosanct" and needs to be respected in cases involving even stringent laws.

A bench of Justices Hrishikesh Roy and SVN Bhatti also relied upon the legal principle of "bail is rule and jail is exception" referred to by a bench headed by Justice B R Gavai while granting bail to AAP leader and former deputy chief Minister Manish Sisodia and and BRS leader K Kavitha in the same case.

Sisodia was granted bail on August 9 by the top court which also extended the same relief to Kavitha on August 27. However, Delhi Chief Minister Arvind Kejriwal is yet to get it in the corruption case lodged by the Central Bureau of Investigation (CBI) in the main corruption case.

"The right to liberty under Article 21 (of the Constitution) is a sacrosanct right which needs to be respected even in cases where stringent provisions are invoked. The petitioner has been in custody for 23 months...the petitioner has been in custody for 23 months and is incarcerated as an undertrial.

"There cannot be a mode of punishment without a trial being commenced. The universal proposition of ‘bail being the rule and jail being the exception’ will be entirely defeated if the petitioner is kept in custody as an undertrial for such a long duration when the sentence can only be 7 years maximum in the event of conviction. We are of the view that the petitioner deserves bail. Accordingly, bail is granted on the terms in this order,” Justice Roy said in the order.

Dictating the order in an open court after the conclusion of the hearing, the bench said its directions will not come in the way of conduct of trial.

It took note of submission that Nair was in jail since November 13, 2022 in the money laundering case and the maximum sentence in the event of conviction is seven years.

"The bail having been granted to co-accused Manish Sisodia and K Kavitha are also pressed on behalf of petitioner to submit that bail should be favourably considered for petitioner," it noted while rejecting the submissions of the Enforcement Directorate (ED) that the twin conditions restricting grant of bail under the Prevention of Money Laundering Act (PMLA) have to be considered.

Section 45 of the PMLA provides for the twin conditions which are required to be satisfied before granting bail to an accused under the anti-money laundering law. The twin conditions are that the judge should be prima facie satisfied that the accused has not committed the offence and that he is not likely to commit any offence while on bail.

The bench, while granting bail to Nair, was dismissive of the ED's contention that Kavitha benefited from a PMLA provision which provides for bail to a woman.

It said during the hearing of Sisodia’s case, the ED assured the court that the trial in the excise policy cases would be concluded within six to eight months.

"But as can be seen that trial is yet to commence," it said and also noted the ED's submission that the trial could not begin because of multiple applications filed by those accused and the delay cannot be entirely attributed to the probe agency.

"The materials on record indicate that one Dinesh Arora, who was earlier an accused in this case, thereafter turned approver and implicated the present accused (Nair) in his later statements. In his earlier statements, he had said nothing about the present accused," the bench said.

There are as many as 40 accused in the case and the ED seeks to examine around 350 witnesses, it said.

"We have perused the reasons for the judgment granting bail to Sisodia. In the said proceedings, the court had reiterated the right of an accused to speedy trial under Article 21 and also the fact that the fundamental rights guaranteed under Article 21 cannot be subjugated to statutory power under the PMLA. While granting bail to K Kavitha, the court did take into account the special provision pertaining to women under provision of Section 45 PMLA,” the court said.

On August 12, the bench had sought ED’s response on the bail plea of Nair. He was granted bail on the CBI case in November last year.

Nair, who was arrested by the ED on November 13, 2022, challenged the trial court's July 29 order dismissing his default bail plea. On July 3 last year, the Delhi High Court had refused to grant bail to Nair and other co-accused in the money laundering case.

The money laundering case stems from a CBI FIR which was lodged after Lieutenant Governor V K Saxena recommended a probe into the alleged irregularities in the formulation and implementation of the now-scrapped Delhi Excise Policy 2021-22.

The CBI has alleged that Nair met some other co-accused, liquor manufacturers and distributors at various hotels in Hyderabad, Mumbai and Delhi for arranging "ill-gotten money through hawala operators" that was given to the Aam Aadmi Party (AAP) as kickback in return for favours by the government.