Final Order 3

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF DEEPALI SHARMA,
SPECIAL JUDGE (PC ACT) (ACB-01)
RADC: NEW DELHI
Bail Application No. 36/2024
FIR No. 01/2024
PS : Anti-Corruption Branch
U/s 7A Prevention of Corruption Act, r/w 420/467/468/471/120B/34
IPC and Section 18 of Drugs & Cosmetic Act
State Vs Rahul Chaurasiya
16.04.2024
This is a bail application u/s 439 Cr.P.C. moved
on behalf of the applicant/accused Rahul Chaurasiya s/o
Shambhu Nath Chaurasiya.
Present : Sh. Ajit Kumar Srivastava, ld. Chief P.P. for the State.
Sh. Siddharth and Sh. Gaurav Gulati, ld. Counsel for
the applicant/accused.
IO/ACP Jarnail Singh.
Supplementary reply filed by the IO.
Further arguments heard.
Present bail application has been filed on behalf of the
applicant/accused stating that the applicant/accused is innocent and he
has been falsely implicated in this case. It is stated that
applicant/accused is in JC since 13.02.2024. It is further stated that
there is no allegation against the applicant/accused in the FIR. It is
stated that there is no allegation against the applicant/accused u/s 7A
of Prevention of Corruption Act (hereinafter referred as PC Act) r/w
120B IPC and Section 18 of Drugs and Cosmetics Act (hereinafter
referred as DC Act). It is urged that no offence is even made out u/s
467/468/471/120B/34 IPC and these sections have been added later
during investigation by the IO/ACP Jarnail Singh and the proceedings
conducted by the IO in the present case is vitiated in view of the
mandate of Section 32 of DC Act and other provisions of the said Act.
It is stated that co-accused Harneet Singh Bindra has already been
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granted bail vide order dated 12.04.2024. It is prayed that the
applicant/accused may be enlarged on bail.
It is further stated that the allegations against the
applicant/accused are that the applicant/accused is stated to be the
manufacturer who had supplied 48960 Cotton Bandages in LNJPN
Hospital to the supplier accused Hemant Joshi and the
applicant/accused created a forged house test report dated 18.05.2023
in the records of the hospital after the vigilance check conducted on
18.08.2023. It is stated that the applicant/accused has been arrested by
the IO in clear violation of the mandate of DC Act and the entire
procedure under the DC Act has been flouted. It is urged that in the
present case the FIR has not been lodged in terms of the mandate of
Section 32 of DC Act and it has been lodged by the police at PS ACB
on the complaint of Sh. Raj Kumar, Deputy Secretary (Vigilance),
Health and Family Welfare Department, GNCTD. It is urged that in
light of judgment of the Hon’ble Supreme Court in
Union of India vs.
Ashok Kumar Sharma, 2021 12 SCC 674, a police officer has no
power to register an FIR and investigate the matter under Cr.P.C. with
respect to cognizable offences under Chapter IV of DC Act.
It is stated that the applicant/accused through its firm
R.J. Traders upon receipt of order of Cotton Bandages from Mr.
Hemant Joshi of M/s Vristi Technologies. After the receipt of the
order, the applicant/accused placed an order upon the manufacturer of
the cotton bandage M/s S.R. Enterprises. A tax invoice was generated
in the name of M/s R.J. Traders on 27.05.2023 and 05.06.2023. It is
stated that the applicant is a wholesale trader of medical equipments
and he cannot be held liable for selling a product to a customer. It is
stated that Vristi Technologies had requested the applicant to ship the
consignment to LNJPN Hospital. The invoice dated 05.06.2023 was
also issued to Vristi Technologies by the applicant/accused. It is stated
that the only involvement of the firm of applicant/accused was that it
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had supplied the product to its buyer from the manufacturer. It is
stated that the applicant’s firm is not the manufacturer of the said
product.
It is also stated that there is no allegation in what
manner the applicant/accused has tried to influence the government
officials to attract section 7A of PC Act and Section 7A of PC Act has
been added only on the basis of assumptions. It is also stated that
section 467/468/471/120B IPC have been invoked without basis.
It is stated that the investigation in the present case is
entirely lopsided against private individuals and the IO has failed to
place any tangible evidence to show a nexus between the
applicant/accused and the hospital authorities. It is stated that the
contention of the IO that sanction u/s 17A PC Act has been applied for
to commence investigation against the public officials would not apply
to offences under DC Act or for IPC offences. It is stated that the IO
has arrested only private individuals and no attempt has been made to
even investigate the public officials for the alleged offences. It is
stated that applicant/accused has clean antecedents and is the sole
bread earner of his family. He is ready to join investigation as and
when called by IO. It is accordingly prayed that the applicant/accused
be granted bail.
On the other hand, bail application is opposed by Ld.
Chief P.P. for the State by stating that the applicant/accused is the
proprietor of M/s R.J. Traders and is connected with one GEM
Contract Order pertaining to LNJPN Hospital. It is stated that as per
GEM Contract Order dated 16.05.2023, the supplier Hemant Joshi of
M/s Vristi Technologies was to supply 48960 Cotton Bandages to
LNJPN Hospital. The supplier contacted the applicant/accused Rahul
Chaurasiya through India Mart who had claimed himself to be an
exporter and manufacturer and hence, the order was placed thinking
that the applicant/accused was a manufacturer. Investigation revealed
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that the applicant/accused is not a manufacturer but he projected R.J.
Traders to be a manufacturer. On 27.05.2023, the applicant/accused
supplied 501 packets (6012 pieces) to co-accused Hemant Joshi
without invoice. On 05.06.2023, the applicant/accused supplied 2780
packets (33360 pieces) to Hemant Joshi as per invoice. On
18.05.2023, Hemant Joshi supplied 9600 pieces to LNJPN Hospital as
per the receiving and on 31.05.2023, Hemant Joshi supplied 39360
pieces to LNJPN Hospital as per the receiving.
It is stated in the reply filed by the IO that the
applicant/accused had purchased the aforesaid items from M/s S.R.
Enterprises and after purchase he put labels of his own stickers i.e.
R.J. Traders on the said items. It is also stated that the
applicant/accused at the instance of co-accused Hemant Joshi created
a forged house test report dated 18.05.2023, after the vigilance check
conducted on 18.08.2023. It is stated that as per the vigilance check
lab report, the sample contained cotton as well as polyester. It is
stated that the forged lab report was back dated for 18.05.2023 and
prepared after the vigilance check conducted on 18.08.2023.
It is stated that bail application of co-accused Rajesh
Malhotra was dismissed on 01.03.2024. Bail application filed by the
applicant/accused and accused Vipin Kumar Pathak were withdrawn
on 01.03.2024. The bail application of accused Rajesh Malhotra has
been disposed off as withdrawn on 01.04.2024 before the Hon’ble
Delhi High Court. It is stated that the sanction u/s 17A of PC Act
against the government officials has been applied for and is yet to be
granted. It is stated that considering the nature of allegations and the
fact that the matter involves lives of people and the fact that
investigation into the nexus between government officials and the
suppliers is to be probed, the bail application of the applicant/accused
ought to be declined.
It is also argued that the investigation is underway and
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charge sheet has yet not been filed. It is stated that Vigilance
Department, Health and Family Welfare Department, GNCTD, had
constituted several teams for inspection of various items and govt. run
hospitals in Delhi on 18.08.2023. These teams visited different
hospitals including DDU Hospital. It is stated that the Drug Inspector
was involved at the stage of investigation by the Vigilance Department
and the samples were lifted on 18.08.2023 and sealed by the Drug
Inspector and they were handed over to ACB vide superdari memo
dated 18.01.2024. The sample was forwarded to authorized govt.
testing lab and thereafter their reports were received by the Vigilance
Department, GNCTD, and subsequently the complaints were filed by
Vigilance Department. The arguments regarding defective
investigation would be relevant at the stage of cognizance or at the
stage of framing of charge and not for the purpose of bail application.
Moreover, the provisions of DC Act have been also complied with. It
is stated that even as per the judgment of
Ashok Kumar Sharma
(Supra), there is no bar to police officers to investigate and prosecute a
person where he has committed an offence as stated u/s 32(3) of DC
Act i.e. if he has committed any cognizable offence under any other
law. It is stated that in the present case section 420/467/468/471/120B
IPC r/w Sec. 34 IPC as well as Section 7A PC Act are involved and
hence the investigation is being conducted by IO of PS ACB.
I have heard ld. Counsel for the parties and perused
the replies filed by the IO as well as the judgment of the Hon’ble
Supreme Court in
Ashok Kumar Sharma (Supra) wherein it is held as
under :
“170. Thus, we may cull out our
conclusions/directions as follows :
170.1. In regard to cognizable offences under
Chapter IV of the Act, in view of Section 32 of the
Act and also the scheme of Cr.P.C., the police
officer cannot prosecute offenders in regard to such
offences. Only the persons mentioned in the Section
32 are entitled to do the same.
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170.2. There is no bar to the police officer,
however, to investigate and prosecute the person
where he has committed an offence, as stated under
Section 32(3) of the Act i.e. if he has committed any
cognizable offence under any other law.
170.3. Having regard to the scheme of CrPC
and also the mandate of Section 32 of the Act and on
a conspectus of powers which are available with the
Drugs Inspector under the Act and also his duties, a
police officer cannot register an FIR under Section
154 CrPC, in regard to cognizable offences under
Chapter IV of the Act and he cannot investigate such
offences under the provisions of CrPC..........”
In so far as provisions of PC Act are concerned, the IO
is yet to obtain sanction u/s 17A of PC Act for investigation against
the public officials of the hospital who are equally involved in the
supply of less quantity or defective quality of the articles by the
applicant/accused. Admittedly, on the date of supply of the articles,
the forged house test report dated 18.05.2023 was not in existence and
it was placed on record only after vigilance raid on 18.08.2023. The
applicant/accused has already been in JC almost for the past two
months. The bail application was withdrawn by co-accused Rajesh
Malhotra before the Hon’ble High Court without addressing any
arguments as is manifest in the order dated 01.04.2024 wherein liberty
was also granted to approach the Trial Court. Co-accused Harneet
Singh Bindra has already been granted bail vide order dated
12.04.2024. Considering the aforesaid and the fact that sanction u/s
17A of PC Act is yet to be obtained against public officials due to
which investigation is not likely to conclude soon, I deem it fit to
grant bail to the applicant/accused. Accordingly, applicant/accused
Rahul Chaurasiya is admitted to bail on his furnishing a personal bond
in the sum of Rs. 50,000/- with one surety in the like amount subject
to following conditions :
(i) That applicant/accused shall join investigation with
the IO/SHO concerned as and when required;
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(ii) That applicant/accused shall not try to contact or
influence, directly or indirectly, any of the witnesses of
present case and shall not tamper with evidence;
(iii) That applicant/accused shall not misuse the liberty
of bail by indulging in commission of similar offences
in future;
(iv) That applicant/accused shall not leave the country
without prior permission of the Court;
(v) That applicant/accused shall intimate the IO/SHO
concerned in case of change of his address.
Accordingly, bail application stands disposed off.
Copy of order be given dasti to the ld. Counsel for the
applicant/accused as well as IO concerned. Copy of order be also sent
to the Superintendent Jail concerned.
( Deepali Sharma )
Special Judge, PC Act(ACB-01)
RADC, New Delhi.
16.04.2024
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