Delhi excise policy case in the thick of row over 'Agency Raj' targeting Oppn

New Delhi, Feb 4: In 2022, the Supreme Court, under the leadership of Justice A.M. Khanwilkar, broadened the Enforcement Directorate's (ED) powers, allowing searches and seizures in Prevention of Money Laundering Act (PMLA) cases without a formal complaint, effectively presuming the accused person guilty.

This decision has sparked concerns about the agency's autonomy, especially as it has been targeting opposition leaders, notably during election campaigns.

As the political climate intensifies ahead of the Lok Sabha polls, central investigating agencies are expected to intensify scrutiny on key opposition figures.

The Central Bureau of Investigation (CBI) and Enforcement Directorate (ED) have now been focusing on prominent leaders such as the Gandhi family, Lalu Prasad, Tejashwi Yadav, Arvind Kejriwal, and Abhishek Banerjee.

Media reports highlight a significant surge in ED cases since 2014, with 95 per cent involving opposition leaders.

Two senior AAP leaders, Manish Sisodia and Sanjay Singh, are already in custody for their alleged involvement in the excise policy.

Now, the investigative agencies are zeroing in on Delhi Chief Minister Arvind Kejriwal and despite facing CBI questioning in April, Kejriwal has received five summons from the ED.

Kejriwal has dismissed them as "politically motivated and illegal."

Further complications for AAP legislators may arise if probe agencies decide to implicate the political party itself in the case.

The counsel for the central government, representing CBI and ED, has indicated they are "contemplating" making AAP an accused.

In February, a local court took cognisance of the supplementary charge sheet filed by ED related to the money laundering probe into now-scrapped Delhi's liquor policy.

The charge sheet alleges AAP used funds from the policy to finance the Goa election campaign. It mentions an alleged conversation between Kejriwal and Sameer Mahendru, owner of Indospirits, an accused in the case.

Notably, the FIR in the alleged Delhi excise policy scam was registered in August 2017.

The CBI filed its charge sheet in November 2022 and Manish Sisodia was arrested in February 2023 and has remained in custody since then. To date, the CBI has filed 5 supplementary charge sheets.

Speaking to IANS, Advocate Shiv Chopra said that the 2018 amendments to the Prevention of Corruption Act (PC Act) have increased the severity of the punishments for the commission of offences punishable by the acts.

"Corruption must be nipped in the bud. The intention of the legislature is therefore clear, and it meets the needs of modern India," Chopra said.

However, he added, modern India also needs its criminal laws to be far more progressive and the liberty of an individual needs to be given the utmost importance.

The only authority that can decide whether an offence has taken place is the court of the Special Judge under the PC Act.

Chopra said: "The CBI has not been able to complete its investigation. Numerous documents have been collected and witnesses examined by the CBI and yet the first step in proceeding for a trial has not even begun."

On continued incarceration of leaders, Chopra said: "Whether politically motivated or not, his continued incarceration in my opinion is uncalled for. He is a public figure and chances of him fleeing from justice are absent."

Talking about the norm in such cases, he said that to ensure that leaders do not tamper with the evidence or influence any witness, stringent conditions can be imposed.

The entire purpose of bail is to ensure that a person will be present to face his accusations and defend himself during trial. Pre-trial incarceration is patently unfair because if the under-trial is found innocent nothing can be done to return the time spent inside jail.

"The presumption of innocence is the bedrock of the criminal justice system in India," Chopra said, adding that every accused, no matter how heinous the offence, is innocent until proven guilty.

This has been reiterated by the Supreme Court time and time again in famous precedents of bail jurisprudence such as Sanjay Chandra v. CBI and P. Chidambaram v. CBI.

Bail is the rule and jail is the exception.

"Allowing Sisodia to continue to languish in jail has far-reaching consequences. For example, he is an elected representative, and the members of his constituency are without their elected representative for no fault of their own. Who will tend to their civic needs and demands?" Chopra said.

Reportedly, the ED registered 5,906 cases until March 2023 but completed the probe and filed a chargesheet in only 1,142 cases – out of which it has disposed of only 25 cases, a mere 0.42 of the total number of cases. Of those 25 cases, the ED has managed convictions in 24 cases, which is around 96 per cent conviction rate as claimed by the agency.

Leveraging these raids, the BJP has skillfully employed them as platforms to propel its anti-corruption political narrative, often targeting opposition parties in the lead-up to elections.