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Delhi Excise Policy Case: AAP Leaders involvement in Liquor Scam

Introduction

The controversial Delhi Excise Policy 2021-22 was introduced on November 17, 2021 with an aim to revolutionize the liquor retail landscape in the capital. Its objectives were to maximize revenue for the state, combat liquor mafia and black marketing, improve the consumer experience and ensure equitable distribution of liquor vends. It marked the withdrawal of the government from the business of selling liquor and allowed only private operators to run the liquor shops. The government also made the rules flexible for licensees, such as allowing them to offer discounts and set their own prices instead of selling on MRP fixed by the government. These reforms increased the Government’s revenue by 27 percent, generating around Rs. 8900 crore.

Under the new policy, the city was divided into 32 zones inviting firms to bid on the zones. Instead of individual licences, bidding was done zone-by-zone. Each municipal ward would have 2-3 vends. Also, licenses for 849 retail vends were issued through open bidding by the Excise department as opposed to 475 liquors shops run by the four government agencies, and 389 by the private operators under the old liquor policy.

For the first time, shops were allowed to offer discounts to retail customers, which attracted crowds and reduced the number of dry days from 21 to 3. The new policy also had a provision for home delivery of liquor. It even proposed lowering the drinking age from 25 to 21. It also suggested the opening of shops till 3 am. However, these were not implemented.

However, after a series of vehement opposition and allegations of procedural irregularities the Government of Delhi withdrew the policy on August 1st, 2022 and reverted to the old excise regime.

Report of Chief Secretary

The Chief Secretary found procedural lapses and irregularities in the new policy and submitted a report on the same to the Lieutenant Governor and Chief Minister of Delhi. According to the report, Manish Sisodia, Head of the Excise Department was accused of making changes to the excise policy without the approval of the L-G, such as allowing a waiver of Rs 144.36 crore on the tendered licence fee. Further, the arbitrary and unilateral decisions taken by then Minister resulted in financial losses to the exchequer, estimated at more than Rs 580 crore.

The law governing this subject states that if any changes are made to a policy that has already been implemented, the excise department needs to place them before the cabinet, and forward it to the L-G for final approval. However, the changes made by the Deputy CM did not comply with these mandates. Therefore, the policy implemented without the approval of the cabinet and L-G was illegal, and violative of the Delhi Excise Rules, 2010 and the Transaction of Business Rules, 1993.

Timeline of Events leading to the Arrest of AAP leaders

July 8, 2022: Chief Secretary submits report to L-G office alleging procedural lapses in excise policy implementation. L-G writes to MHA recommending CBI inquiry in matter.

July 30: Sisodia says Government to revert to old excise policy

Aug 6: L-G nod to suspend ex-excise commissioner, IAS officer Arava Gopi Krishna, Dy Commissioner Anand Tiwari

Aug 17: CBI files FIR

Aug 19: CBI Raids Deputy Chief Minister Manish Sisodia and Others on Delhi LG’s Recommendation, followed by Enforcement Directorate’s money laundering probe on liquor policy.

Sept 28 : CBI arrests Vijay Nair, the Aam Aadmi Party’s Chief of Communications.

Oct 10: CBI arrests Abhishek Boinpally

Nov 14: ED arrests Boinpally and Nair

Nov 24: CBI files Cargesheet; names 7

November 26: ED files first prosecution complaint/ chargesheet. Alleges excise policy “formulated with deliberate loopholes”, which “promoted cartel formations through back door” to benefit AAP leaders

January 6, 2023: ED files second prosecution com- plaint/supplementary chargesheet claiming CM allegedly spoke to one of main accused, Sameer Mahendru, asked him to continue working with co-accused Nair who he referred to as “his boy”.

January 14: CBI visits Sisodia’s office. He calls it “raid”, CBI denies

February 19: Sisodia says CBI called him for questioning again. Seeks week’s time

February 26: Sisodia arrested

March 2023: The Enforcement Directorate detains Manish Sisodia, the former deputy chief minister of Delhi.

October: AAP Leader Sanjay Singh is arrested by the Enforcement Directorate, and the first summons is issued to Delhi CM Arvind Kejriwal in connection with the liquor policy fraud.

November 2023: On November 2, Kejriwal flies to Singrauli, Madhya Pradesh, to address a political rally instead of responding to the ED’s first summons.

December 2023: Kejriwal ignores the second summons, saying it is ‘illegal and politically motivated’. The ED sends Kejriwal a third summons to appear for questioning on January 3.

January 2024: Kejriwal misses the third summons for alleged conspiracy by the Central government. In the same month, the ED issues a fourth summons to the Aam Aadmi Party (AAP) convenor, asking him to appear for questioning on January 18. Kejriwal responds to the Enforcement Directorate’s summons to him, asking the agency why notices were issued. The ED follows up by issuing its fifth summons.

February 2024: For the fifth time, Kejriwal ignores the Enforcement Directorate’s summons. An ED court filing from February said that the AAP politician was not following the summons. Kejriwal was granted a one-day reprieve from making a personal appearance by a Delhi court in February.

March 2024: In response to two allegations from the ED against Kejriwal for allegedly ignoring its summonses in the case, a sessions judge grants him bail.

Chief Minister Arvind Kejriwal files a petition with the Delhi High Court challenging ED summonses. He informed the Delhi High Court that he will not appear before the Enforcement Directorate due to a “clear intent” to arrest him during the upcoming elections.

The Delhi High Court refused to provide Kejriwal any protection from coercive action. Consequently, Kejriwal petitioned before the Supreme Court for protection against any coercive action by the ED.

Therefore, on account of ignoring nine summonses issued by the agency for questioning, the ED arrests Delhi Chief Minister Arvind Kejriwal.

Matter referred to CBI

The report of the Chief Secretary was referred to the CBI, which subsequently, led to the arrest of the then Delhi Deputy CM Manish Sisodia. 14 members belonging to AAP party were also made accused in its FIR.

Enforcement Directorate role in the case

Two cases, one by CBI and one on alleged money laundering being investigated by ED, have been registered in relation to the excise policy. The ED told the court that the alleged proceeds of crime amounted to more than Rs 292 crore, and that it was necessary to establish the modus operandi.

Manish Sisodia arrested in February 2023

AAP leader Sisodia has been under judicial custody since February 26 last year, after he was arrested by the CBI, which is also probing the “procedural lapses” in the policy execution. Sisodia is alleged to have “destroyed evidence” by changing his phone frequently, and the profit margin for wholesalers has been changed from 5 per cent to 12 per cent, among other accusations.

The case investigation began two months after Delhi LG VK Saxena assumed office in May 2022. He recommended a CBI probe into the malafide activities around the repealed policy.

BRS leader K Kavitha arrested on March 15

The Bharat Rashtra Samithi (BRS) leader K Kavitha also approached the Supreme Court over a plea against her arrest in the same probe. However, the court refused to take up her petition and asked her to approach the trial court first. Kavitha is alleged to have “plotted” with Kejriwal and jailed former Delhi deputy CM Manish Sisodia to get “favours” in excise policy. The agency claims that she is linked to a “south group” which paid about Rs 100 crore to AAP for skewing the policy in their favour.

Kejriwal arrested on March 21st 2023

The Chief Minister filed a challenged his arrest before the Supreme Court. But, when the Court directed to try the case first before the lower courts in the similar matter involving Kavitha, the Minister withdrew his suit and contested before the High Court. A fresh plea in HC against ED, has been filed seeking protection from any coercive action by the ED.

References

  1. https://delhiexcise.gov.in/pdf/Delhi_Excise_Policy_for_the_year_2021-22.pdf
  2. https://www.thehindu.com/news/cities/Delhi/delhi-excise-policy-scam-more-high-profile-persons-can-be-arrested-cbi-submits-in-court/article67964861.ece
  3. https://www.business-standard.com/politics/explained-what-is-delhi-excise-policy-case-and-why-was-kejriwal-arrested-124032200283_1.html
  4. https://byjus.com/free-ias-prep/delhis-liquor-policy-upsc-notes/
  5. https://www.moneycontrol.com/news/politics/delhi-excise-policy-case-a-timeline-of-the-events-12505711.html
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Doctrine Of Forum Conveniens Is To Be Invoked To Determine The Most Appropriate Forum For Adjudication Of A Dispute: High Court Of Delhi

Title: Riddhima Singh V Central Board Of Secondary Education & Ors.

Citation: LPA 729/2023

Coram: Hon’ble The Chief Justice And Hon’ble Mr. Justice Tushar Rao Gedela

Decided On: 01.11.2023

Introduction:

The present LPA arises out of judgement dated 12.09.2023 passed in W.P.(C) No. 8383/2023 whereby the Ld. Single Judge dismissed the writ petition filed by the Appellant herein on grounds of forum non-conveniens without expressing any opinion on the merits of the matter.

Facts:

Appellant was a student in Respondent School (the „Respondent School‟). However, on 02.04.2018, the Appellant‟s father received a message from the Respondent School that due to non-payment of fees for the academic year 2017-2018, the Appellant was debarred from attending the Respondent School. Being aggrieved, the Appellant preferred W.P.(C) 6007/2019 (the „First Writ Petition‟) before this Court seeking issuance of directions against Respondent No. 1 („CBSE‟) to permit the Appellant to appear for Class X and Class XII examinations. During the pendency of the aforenoted writ proceedings, this Court, through interlocutory orders, directed the Respondent School to readmit the Appellant and directed the school to conduct Grade VII and Grade VIII examinations for the benefit of the Appellant. Both the examinations were conducted by the Respondent School and was cleared by the Appellant. It is pertinent to note that the Grade VIII examinations were delayed due to the COVID-19 pandemic.

Vide judgement dated 04.06.2021, the First Writ Petition was dismissed by the Ld. Single Judge on grounds that this Court was not the most appropriate forum to adjudicate the dispute. The Court considered that the Appellant was a resident of Uttar Pradesh and that the Respondent School was also located in Uttar Pradesh. As the grievances of the Appellant primarily pertained to the Respondent School, the Court held that the mere inclusion of CBSE as a respondent was not sufficient to enable this Court to exercise its jurisdiction under Article 226 of the Constitution of India. Aggrieved the Appellant preferred a review petition against this judgement which was also dismissed with costs of INR 30,000 imposed on the Appellant.

Subsequent to the events of the First Writ Petition, the Appellant preferred the underlying writ petition seeking compensation from CBSE for alleged “intentional harassment, mental trauma of holding back the Petitioner in Class VII for two academic years in violation of RTE Act.” Without adjudicating on the merits of the matter, the Ld. Single Judge dismissed the writ petition on the grounds of non-conveniens, noting that the Appellant has attempted to found territorial jurisdiction in Delhi merely because CBSE is headquartered in Delhi.

Learned Counsel for the Appellant contends that the Ld. Single Judge erred in not considering that Clause 18.3.2 of the CBSE Affiliation Bye-Laws explicitly states that the legal jurisdiction for suits filed against the CBSE shall be the Union Territory of Delhi.

Court’s Analysis and Judgement:

The principle emerging from Shristi Udaipur is squarely applicable to the facts of the present case. In essence, the basis of the Appellant‟s claim for compensation is the loss of an academic year due a delay in examinations for Grade VIII. As the responsibility for conducting the examinations fell on the Respondent School, it is plain that the most vital part of the cause of action arose in Uttar Pradesh, where the Respondent School is located. Moreover, it must also be noted that the Appellant is a resident of Uttar Pradesh. Therefore, on a holistic examination of these circumstances, as the Appellant has failed to produce any material establishing that the grievance caused to her is directly attributable to the actions of the CBSE.

doctrine of forum conveniens is invoked to determine the most appropriate forum for adjudication of a dispute and this exercise is undertaken not only for the convenience of the parties but also in the interest of justice. Therefore, this Clause cannot be read in a matter that would permit all cases filed against the CBSE, regardless of the existence of a more appropriate forum, to be adjudicated in the Union Territory of Delhi; the existence of such a clause cannot exempt Courts from invoking the doctrine of forum conveniens especially in cases like the present where no direct actions of the CBSE have been impugned by the Appellant. So the court did not find any eason to interfere with the Impugned Judgement. Accordingly, the present LPA was dismissed.

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Written by- Sushant Kumar Sharma

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Throwing On Another Person Any Liquid Or Substance Other Than ‘Acid’ Not An Offence U/S 326B IPC: Delhi High Court

Title: Rashmee Kansal v. The State and Others
Citation: W.P.(CRL) 712/2022

Coram: JUSTICE AMIT BANSAL

Introduction:

In a recent ruling, the Delhi High Court provided a crucial clarification regarding interpreting Section 326-B of the Indian Penal Code (IPC). The court emphasised that for an offence to be established under this section, it is essential that a person throws or attempts to throw ‘acid’ on another person. Importantly, the court specified that Section 326-B is exclusively tailored to address acid attacks and does not encompass incidents involving any other liquid or substance. This clarification offers a distinct understanding of the scope and application of Section 326-B, particularly in cases involving the throwing or attempted throwing of harmful substances on individuals.

Facts:

The case involves a respondent accusing her sister-in-law, the petitioner, of throwing a hot liquid at her, which allegedly landed on her right shoulder, blouse, and saree. Justice Amit Bansal, presiding over the matter, highlighted that if the liquid were indeed ‘acid,’ there would likely be external injuries and traces of the acid on the respondent’s body.

The petitioner sought the quashing of the FIR, claiming shared residency on a common property with the respondent. The petitioner argued that the FIR was a tactic to harass her, citing an ongoing property dispute between them. Additionally, it was noted that two complaints had been previously filed against the respondent by other occupants of the property.

In response, the respondent contested the existence of a property dispute and criticised the police investigation. The court considered an FSL report indicating that samples of the liquid substance collected from the property were Hydrochloric acid. However, the court noted that there was no evidence to demonstrate that the substance was thrown directly at the respondent’s body.

Court analysis and judgement:

In this case, the court provided a thorough analysis leading to the decision to quash the FIR. The central point of consideration was Section 326-B of the IPC, which specifies that an offense is established only if a person throws or attempts to throw ‘acid’ on another person and not any other liquid or substance. This legal criterion set the framework for evaluating the allegations.

The court took into account crucial medical evidence, including the discharge summary that indicated no external injury on the respondent at the time of hospital admission. Additionally, the PCR Form recorded the doctor’s statement asserting the absence of acid signs, categorizing it as a case of an old illness. These medical findings played a pivotal role in the court’s determination. Regarding the charge of criminal intimidation, the court observed a lack of substantive allegations in the FIR to substantiate the offense, providing a comprehensive legal analysis.

The legal representation included Mr. Sunil K. Mittal, Mr. Anshul Mittal, Mr. Harshit Vashisht, and Mr. Sarthak Sharma, Advocates for the petitioner, and Mr. Yasir Rauf Ansari, ASC (Crl.) with Mr. Alok Sharma and Mr. Rohan Kumar, Advocates for the respondents. The court, based on its analysis, quashed the FIR, highlighting that the substance thrown was not confirmed to be ‘acid’ and suggested that the allegation stemmed from an ongoing property dispute between the parties. This judgment analysis underscores the court’s meticulous consideration of legal criteria, medical evidence, and the context surrounding the allegations.

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Appellate Court Upholds Appellant’s Business Rights in Arbitration Dispute: High Court of Delhi

Title: HAD FLAVOURS PVT LTD. Vs. DADDY’S HOSPITALITY PVT LTD.

Citation: ARB. A. (COMM.) 29/2023 & IA Nos.12437/2023, 12439/2023

Coram: HON’BLE MR. JUSTICE SACHIN DATTA

Decided on: 06-11-23

Introduction:

The appellant is appealing against an order passed by the Ld. Sole Arbitrator, disposing of an application under Section 17 of the Arbitration and Conciliation Act, 1996 (the “A&C Act”). The Ld. Sole Arbitrator was appointed by the court vide order dated 10.02.2023, at the parties’ joint request. While appointing the Ld. Sole Arbitrator, the court directed that the said petition under Section 9 of the A&C Act would be placed before the Ld—sole Arbitrator as an application under Section 17 of the A&C Act.

Facts:

The case involves a Business Transfer Agreement (BTA) dated 29.01.2022 between two parties. The BTA specifies the transfer of a “transferred undertaking” along with certain rights and assets, including the brand “34 Chowringhee Lane.” The purchase consideration for this transfer was detailed, with a lump sum amount to be paid, and the appellant alleged that the respondent violated the BTA by continuing to operate a competing brand.

Disputes between the parties led to legal notices and the purported termination of the BTA by the respondent. The matter was taken to arbitration under the Arbitration and Conciliation Act, and the Sole Arbitrator issued an order addressing various prayers made in the petition under Section 9 of the Act.

The impugned order by the Sole Arbitrator restricted the appellant from creating new franchises or entering into business agreements with third parties for the use of the name/brand “34 Chowringhee Lane.” This restriction aggrieves the appellant.

Court analysis and judgement:

In the judgment the court considered the contentions of both parties and reviewed the impugned order issued by the Sole Arbitrator under Section 17 of the Arbitration and Conciliation Act. The key points in the judgment are as follows: The Sole Arbitrator had found that after the receipt of the consideration amount, the conduct of the business was recognized as the right of the claimant (appellant), with the respondent’s directors assisting in the business for remuneration. The impugned order also made a prima facie finding that the respondent could not claim a right to interfere with the conduct of the business. The court noted that putting restrictions on the appellant’s right to create new franchises or enter into business agreements with third parties was unwarranted in light of the findings in the impugned order, which recognized the appellant’s right to conduct the business. The appellant contended that such directions were unwarranted, especially considering that the respondent had not filed an independent Section 17 application seeking injunctive orders against the appellant.

The court emphasized that a blanket embargo on creating new franchises or business agreements might harm the business’s value due to market stagnation or share depletion. Such a direction was deemed inappropriate when dealing with the appellant’s Section 17 application in the absence of a similar application from the respondent. The court, therefore, set aside the portion of the impugned order that restricted the appellant from creating new franchises or entering into new business agreements with third parties during the proceedings. However, the court directed that any such actions should be done with the prior approval of the Sole Arbitrator and subject to the terms and rationale being presented to the Sole Arbitrator to safeguard the rights of the respondent. The judgment disposed of the present appeal with these directions, and any pending applications were also disposed of. In summary, the court found that the restrictions placed on the appellant by the impugned order were unwarranted and lifted them. Instead, it required that any such actions be taken with the approval of the Sole Arbitrator and subject to the protection of the respondent’s rights.

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First-Time Offender’s Sentence Reduced Due to Commitment to Reform and Lower Socio-Economic Status: High Court of Delhi

Title:  Mohd Nasim vs. The State

Citation: CRL.REV.P.296/2017

Coram: HON’BLE DR. JUSTICE SUDHIR KUMAR JAIN

Decided on: 3-11-2023

Introduction:

The present criminal revision petition has been filed under sections 397/401 of the Code of Criminal Procedure, 1973, along with section 482 of the same Code. This legal action aims to challenge and set aside three specific legal orders and judgments: The order dated 27.03.2017, referred to as “the impugned order,” issued by the District and Sessions Judge of East, Karkardooma Courts (referred to as “the appellate court”). The judgment dated 17.03.2016, referred to as “the impugned judgment.” The order on sentence dated 15.07.2016, issued by the Metropolitan Magistrate-03, East, Karkardooma Courts (referred to as “the trial court”).These orders and judgments pertain to a criminal case that arose from the FIR numbered 151/2009, registered under sections 279/337 of the Indian Penal Code, 1860 (IPC) at PS Mandawli Fazad Pur. The purpose of this criminal revision petition is to seek a review and potentially set aside these legal decisions.

Facts:

The facts of the case are such that, The case pertains to an incident in 2009, where a road accident occurred involving a rickshaw used for carrying goods and a blue line bus with the registration number DL 1PB 9786 (referred to as “the offending vehicle”). The Investigating Officer, SI Yad Ram, arrived at the accident scene after receiving information about the incident. A statement from the complainant, Mohd. Sabir was recorded, in which he described that the rickshaw he was travelling in was hit from behind by the offending bus, driven in a rash and negligent manner.

As a result of the collision, the deceased, Mahesh, fell on the road, and the rear tire of the bus ran over him, causing injuries that led to his subsequent death during treatment. An FIR was registered based on the statement of the complainant, initially under sections 279/337 IPC, and later section 304A IPC was added due to the death of the deceased. The petitioner, identified as Mohd. Nasim was charged as the driver of the offending bus. The trial court conducted proceedings, and the prosecution presented its evidence, including 11 witnesses, including the complainant and the Investigating Officer. The petitioner pleaded innocence and claimed false implication during his statement.

The trial court, in its judgment, convicted the petitioner for offences under sections 279/304A IPC and imposed sentences, including imprisonment and compensation to be paid to the legal heirs of the deceased. The petitioner was also sentenced for an offence under section 279 IPC. The sentences were ordered to run concurrently.

 

 

Court Analysis & Judgement:

The Court concluded that, The present First Information Report (FIR) dates back to 2009, and the petitioner has been involved in legal and judicial proceedings related to this FIR since then. The petitioner is described as a first-time offender with a clear criminal record. They belong to a lower socio-economic stratum and are the primary provider for their elderly parents. The legal heirs of the deceased in this case have already received compensation. The petitioner has expressed a commitment to reform themselves. The petitioner’s actions, characterized as rash and negligent driving, led to the untimely death of a young man. This incident caused irreparable loss to the victim’s family.

 After considering all the facts, the court has decided that justice would be served by reducing the sentence imposed on the petitioner for the offence under section 304A of the Indian Penal Code (IPC) to simple imprisonment for six months. The remaining part of the sentence, as specified in the order on sentencing dated 15.07.2016, is to be maintained.  The court has directed the petitioner to surrender before the trial court on 20.11.2023 at 2:30 PM to serve the remaining portion of the sentence. The judgment is to be provided to the petitioner and sent to the relevant trial court for their information.

The present petition, along with any pending applications, has been decided and disposed of accordingly.

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