The Supreme Court on Monday granted bail to businessman and Aam Aadmi Party’s former communications-in-charge Vijay Nair in the liquor policy case, Live Law reported.
Nair, who was also the former chief executive officer of event management company Only Much Louder, was arrested by the Central Bureau of Investigation in September 2022. He was the first one to be arrested in the case.
On Monday, a bench of Justices Hrishikesh Roy and SVN Bhatti said that the principle of “bail as the rule and jail as the exception” would be defeated if Nair remained in custody without a trial.
The court noted that the “right of liberty guaranteed under Article 21 of the Constitution is a sacrosanct right” required to be respected even in cases where stringent provisions were incorporated through special enactments.
Nair had been in custody for over 23 months and his incarceration as an undertrial could not be a mode of punishment without the trial having commenced in the case, the court noted.
“The universal proposition of bail being the rule and jail being the exception will be entirely defeated if petitioner is kept in custody as an undertrial for such long duration particularly when in the event of conviction, the final sentence can only be seven years in the maximum,” it added.
The court granted bail to Nair on a special leave petition filed by him challenging the Delhi High Court decision denying him bail.
Nair, along with co-accused Sameer Mahendru, Sharath Reddy, Abhishek Boinpally, and Benoy Babu, was denied bail by the Rouse Avenue court on February 16 on grounds of the ongoing investigation and the potential risk of evidence tampering, Live Law reported.
Following this, the High Court upheld the decision of the trial court after it found no illegality or perversity in the order.
During the proceedings in the Supreme Court, Senior Advocate Abhishek Manu Singhvi, representing Nair, said that Aam Aadmi Party leader Manish Sisodia and Bharat Rashtra Samithi leader K Kavitha, both co-accused in the liquor policy case, were granted bail.
While Sisodia was granted bail by the Supreme Court in the matter on August 9, Kavitha was granted bail on August 28.
Singhvi said that Nair was on a better footing than the two of them to be granted bail as he was already granted one in a predicate offence.
Additional Solicitor General SV Raju, representing the Enforcement Directorate, alleged that Nair was the middleman who took kickbacks from those who received liquor licenses for the other accused in the case, including Delhi Chief Minister Arvind Kejriwal, who is currently in jail, and Sisodia.
Raju also cited the threshold bar under Section 45 of the Prevention of Money Laundering Act, according to Live Law. Under Section 45 of the law, the court must be satisfied that there are reasonable grounds to believe the accused is not guilty of the offence in question, and it must also be satisfied that the accused is not likely to commit any crimes while out on bail.
The additional solicitor general said that the delays in the trial could not be attributed to the prosecution because multiple applications filed by the petitioner needed to be disposed of.
“Incarceration as an undertrial cannot be the punishment,” the court said. “There cannot be an absolute scenario of conviction happening. Suppose there is an acquittal. Then this is a punishment as an undertrial.”
The bench noted that persons who were higher than Nair in the party had been granted bail. Nearly 40 persons were listed as accused, the court said, adding that the prosecution intended to examine about 350 witnesses.
“When the case of the co-accused Manish Sisodia was taken up by this court, an assurance was given by counsel representing the Directorate of Enforcement on 30-10-2023 that the trial would get concluded within 6-8 months,” the order said. “As can be seen the trial is yet to commence.”
The Enforcement Directorate’s case is based on a first information report registered by the Central Bureau of Investigation alleging irregularities in the Delhi government’s now-scrapped liquor excise policy.
The policy came into effect in November 2021. It was withdrawn on July 30, 2022, with Delhi Lieutenant Governor Vinai Kumar Saxena recommending an investigation into the alleged irregularities of the policy.
The Central Bureau of Investigation and the Enforcement Directorate have alleged that the Aam Aadmi Party government modified Delhi’s liquor excise policy to ensure a 12% profit margin for wholesalers and a nearly 185% profit margin for retailers.
The Enforcement Directorate has also claimed that members of a “South Group” had paid at least Rs 100 crore in kickbacks to leaders of the Aam Aadmi Party through Nair.
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