"Tell Me What's Wrong With It": Delhi High Court To CBI on Discharge Of Arvind Kejriwal, Manish Sisodia In Liquor Policy Case

"The judge has painstakingly gone through everything. Tell me what's wrong with it," Justice Sachin Datta told Additional Solicitor General (ASG) SV Raju.

At the close of the hearing, the Court directed the CBI to file fresh written submissions in a tabular format, setting out each paragraph of the impugned order under challenge, the findings disputed, and whether the complaint was that the wrong legal test had been applied or that material on record had been ignored or misread. The matter will next be heard on November 5 at 2:30 PM.

At the outset, the Court asked the ASG for an overview of the case. "Give me an overview of the case, what is the case against them," Justice Datta said.

When Raju sought to begin with the issue of maintainability, the Court declined. "No, on maintainability I'll hear them first. You give me a broad overview of the case," Justice Datta said.

Noting that the record was now before it and that preliminary objections had been raised, the Court emphasised that, in revisional jurisdiction, it had to examine whether there was anything palpably wrong with the order under challenge. It questioned the challenge to an order running into over 500 pages and asked counsel to identify the specific deficiencies that warranted interference, pointing to the relevant portions of the order and explaining how the challenge fell within the limited scope of revision.

Raju began by referring to the CBI's allegation that the policy was changed to facilitate the exchange of money before tenders and licences were awarded, allegedly enabling the accused and their associates to use the money for illegal purposes. The Court, however, asked him to move beyond the allegations and identify precisely what was wrong with the impugned order, given that the judge appeared to have examined the record in considerable detail.

Raju argued that the trial court, despite passing an order running into over 500 pages, had ignored crucial evidence and misinterpreted witness statements. Taking the Court to page 41 of his written submissions, he referred to allegations concerning suggestions attributed to the Lieutenant Governor, witness testimonies and file notings relating to the changes in the policy.

According to the CBI, the Lieutenant Governor had suggested only that the power to make changes in the policy should remain with the Council of Ministers, rather than being delegated to the Additional Advocate General. Raju argued that no other changes were suggested by the Lieutenant Governor, yet subsequent file notings recorded seven changes attributed to discussions with him, including a reduction in the turnover criteria.

He alleged that the policy was approved by the Council of Ministers through circulation on May 21, 2021, with unusual haste, while members of the alleged South Group were present in Delhi during the COVID wave. The reduction of the turnover criterion to ₹150 crore, he argued, benefited M/s Indospirit in obtaining an L-1 licence.

The ASG submitted that the trial court ignored a crucial statement of PW87, Ashita Mishra, who allegedly stated that only the broad policy framework was discussed and no figures were discussed in the relevant section. This omission was significant, Raju argued, because the changes recorded in the file concerned figures such as the turnover criteria and shop size.

Raju then raised the alleged disappearance of an earlier draft Cabinet note dated January 28, 2021, which, according to the CBI, contained legal opinions recommending that the status quo in the excise policy be maintained. He alleged that when these opinions did not suit the accused's plan, a fresh file was initiated without incorporating them.

Referring to witness statements, emails, file notings and mobile phone chats, the ASG argued that the earlier draft Cabinet note and the accompanying legal opinions were handed over to the concerned authorities but subsequently disappeared from the record. A fresh Cabinet note was then prepared, he submitted, incorporating only a summary of comments and omitting any reference to the earlier file and the legal opinions.

Raju contended that the trial court selectively read the witness statements and misinterpreted the evidence on this aspect, and that the CBI's case was that the opinions favouring the status quo were excluded because they did not support the alleged plan to change the policy.

At this point, the Court sought to distil the ASG's grievance. "So, in a single sentence, your difficulty with this order is that this entire evidentiary exercise is done at the stage of charge?" Justice Datta asked.

Raju agreed, arguing that the trial court had gone beyond the permissible scope of scrutiny at that stage. The Court asked him to show the law on what a court is required to do at the stage of charge, observing that it could not simply substitute one opinion for another, and asked counsel to establish why the impugned order warranted interference in revisional jurisdiction.

Raju clarified that his argument was not that the trial court must act as a "rubber stamp", but that it could not ignore relevant evidence or misinterpret it. "If the court has considered it and then given a finding, which is a reasonable finding, then it's a different matter," he submitted. He maintained that the trial court had completely ignored relevant material and said the points raised were only the beginning of his challenge, adding that he would demonstrate further instances of evidence allegedly overlooked.

Taking the Court through the impugned order in FIR 405, Raju asked it to compare the undertaking extracted by the trial court with the original undertaking submitted by Indo Spirit Marketing Pvt Ltd. Pointing to the last two lines, he alleged that the order added the name of Indo Spirit Distribution Ltd, which did not appear in the original document.

"How could the learned judge tweak a document and extract something which was not there, part of the document?" Raju asked. He also argued that the alleged addition was significant because it was relied upon to conclude that the South Group did not benefit from the excise policy.

Raju further urged the Court to examine the relevant judgments rather than rely on selective readings of isolated paragraphs of the impugned order.

Citing the Supreme Court's judgment in L. Khajan Singh Kumar v. CBI (as cited by counsel), he read out the principle that, at the stage of framing charges or considering discharge, the court is not expected to analyse the acceptability of evidence as it would at trial. The credibility of witnesses and the veracity of documents, he submitted, were matters to be assessed during trial, and the trial court had exceeded the permissible scope by undertaking an extensive evidentiary evaluation at the stage of charge.

Taking the Court through his chart, Raju alleged that the trial court overlooked evidence pointing to the role of the South Group in drafting the excise policy, including a 36-page printout, a meeting with accused Vijay Nair and digital records tracing the movement of the persons involved.

According to the ASG, the evidence showed that 36 pages were printed at the Oberoi hotel, after which a taxi was hired to travel to Oberoi Meadows, where members of the South Group allegedly met Vijay Nair and handed over the material. The final policy, he argued, subsequently contained the same 36 pages. He pointed to GPS records of the hired taxi and call detail records which, he said, placed the relevant person at the locations after the printout was taken.

Raju also relied on WhatsApp chats recovered from the phone of Guchhi Babu, submitting that certain paragraphs in the chats predated the policy but were identical to provisions that later appeared in the final excise policy. Referring to one paragraph of the final policy, he argued that the corresponding provision appeared in the recovered chats despite allegedly not being part of the earlier draft, and that the trial court failed to properly account for this digital evidence.

The ASG alleged that the policy increased the profit margin for private wholesalers from 5% to 12%, despite the Dawan Committee recommending a 5% margin and wholesale operations through government-owned entities. The shift from government entities to private wholesalers, coupled with the increased margin, he argued, conferred an undue financial benefit on private operators and formed a crucial part of the prosecution's case. He took the Court to a paragraph of the first supplementary chargesheet which, he said, specifically recorded the change and the departure from the committee's recommendations.

The Court, however, asked counsel to identify the precise provision in the final excise policy that fixed the margin at 12%, seeking to examine the policy itself rather than rely solely on the allegations in the chargesheet. Raju maintained that the margin was arbitrarily increased without any discussion in the relevant file notings. When the Court asked him to show the exact page and provision of the policy supporting the claim, the ASG continued to rely on the alleged departure from the Dawan Committee's recommendations.

The Court directed the ASG to file fresh written submissions in a tabular format before the next hearing, setting out the specific challenges to the impugned order. The submissions are to identify.

1. The paragraphs of the impugned order under challenge, along with the corresponding grounds in the original revision petition.

2. The findings challenged.

3. Whether the challenge is that the wrong legal test was applied, or that material on record was ignored or misread, identifying such material by its page in the trial court record.

4. The respondents to whom each challenge relates.

Where no specific paragraph in the original revision petition covers a particular challenge, the same is also to be indicated. The submissions are to be filed at least two days before the next hearing, with an advance copy to counsel for all respondents.

The Court declined, for the present, to call for written submissions from the respondents. "I don't want multiple written submissions at this stage. Once you conclude, then it'll be better for them (respondents) to file it in one shot at that point of time," Justice Datta said.

The matter is listed for further consideration on November 5 at 2:30 PM.

What has happened so far in the Delhi Excise policy case