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Synopsis

A Delhi Court recently allowed the bail applications of Rajesh Joshi and Gautam Malhotra in the Delhi Excise Policy Scam case. Both the accused have been directed to furnish a personal bond of Rs. 2,00,000 each with one surety in the like amount subject to the satisfaction of the court.

M.K. Nagpal, Special Judge (PC) Act, while allowing the bail applications, reiterated that default bail under Section 167(2) is an indefeasible right of an accused and that the present facts and circumstances did not warrant further custody of the accused. Reliance was also placed on the Supreme Court decision in Vijay Madanlal Chaudhary v. Union of India, 2022 SCC OnLine SC 929, wherein it was provided that the twin conditions under Section 45 of PMLA, 2002, though restrict the right of the accused to grant bail but do not place an absolute restraint as such.

With respect to the role and evidence against Rajesh Joshi, court noted that the applicant was not a participant to any of the meetings which allegedly took place between the other co-accused or conspirators. He was admittedly not a part of the cartels which were formed in violation of the said policy nor he had any connection with any of the entities that were granted/applied license for liquor business in Delhi, it was added.

On the charge of illegal payments by Rajesh Joshi, Court observed that merely because an approver informed about the applicant’s involvement in some of the kickback amount from the South lobby and his mobile number was found in the phone of the approver, cannot lead to the conclusion that he was a party to such transactions, especially when no other incriminating material exists in that regard.

“In the absence of there being any satisfactory corroborative material and in view of the above material contradictions and deficiencies in the evidence relating to above transactions, the statement dated 01.10.2022 made by the approver Dinesh Arora regarding the above-said transactions of transfer or transmission of a part of the advance kickback amount through this applicant cannot be considered to be incriminating enough and sufficient to justify the attraction of bar and rigours contained u/s 45 of the PMLA and to justify his further detention in the case or denial of bail to him,” the Court held.

With respect to the allegations against Gautam Malhotra, it was observed that even the most important witness of prosecution is not supporting their case regarding payment of Rs 2.5 as a bribe – “even the star witness of prosecution case is not supporting their case regarding payment of the above amount of Rs 2.5 crores by him to the co-accused Amit Arora in his office, as bribe or towards repayment of the advance kickback amount and out of his profit margin as a wholesaler being beneficial owner/controller of wholesale entity M/s Gautam Wines and hence, what value can be given to the uncorroborated disclosures made by the co-accused Amit Arora in his above statement will be a matter of trial only,” the court said.

With respect to applicant’s involvement in formation of cartel, it was added under Para 70 of the judgment, that the evidence and statements on record might be sufficient to show cartelization on behalf of the applicant on all three levels of the liquor business in Delhi, however, the same could not be taken as sufficient to make the court prima facie believe that it was done in pursuance of a criminal conspiracy with the other co-accused. “Though the above cartel might have been formed in violation of provisions of the excise policy, but it appears to be a pure business cartel formed to push the sales of liquor brands of manufacturing units of the applicant…”, said the court.

The applicants are alleged to have committed offences under Section 120B r/w 477A of the Indian Penal Code, 1860 and Section 7 Prevention of Corruption Act, 1988.

Case Title: Rajesh Joshi and Gautam Malhotra v. ED