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. 47/2024
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 Kapil Makhija
16.04.2024
This is a bail application u/s 439 Cr.P.C. moved
on behalf of the applicant/accused Kapil Makhija S/o Sh. Dilip
Makhija.
Present : Sh. Ajit Kumar Srivastava, ld. Chief P.P. for the State.
Sh. Yogesh Kumar Verma, 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
the applicant/accused is a supplier on the GEM Portal and 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
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mandate of Section 32 of DC Act and other provisions of the said Act.
It is further stated that the allegations of shortfall in the
supply of Absorbent Cotton I.P. to LNJPN Hospital is based on
assumption in as much as there is no complaint of the hospital
authorities that there was any shortfall in the supply of Absorbent
Cotton I.P. nor is the said fact substantiated by the hospital records.
The articles were supplied pursuant to orders placed on GEM Portal
which were also checked by hospital authorities before hand and at the
time of supply. It is argued that the IO has conducted the investigation
only on the basis of the documents supplied by the accused and there
is no independent investigation of the prosecution regarding the
allegations against the applicant/accused. It is stated that to
substantiate the allegation of supply of sub-standard quality of
Absorbent Cotton I.P. to the hospital, the IO has relied upon the
Vigilance Check Lab Report conducted by a private lab, which is not
in accordance with the mandate of DC Act. It is stated that quality
control which is governed by DC Act provides a detailed procedure to
be followed by the Drug Inspector and for determination of quality of
the articles by Govt. Analyst. The Act also provides the qualification
of the Drug Inspector. It is stated that the entire procedure under the
DC Act has been flouted and hence no reliance can be placed upon the
lab report allegedly provided by the Vigilance Department. 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.
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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. The
IO has failed to show in accordance with the DC Act, that the goods of
the applicant/accused were sub-standard, by placing reliance on
Vigilance Check Lab Reports which were conducted by some private
lab, without any opinion of the Drug Analyst, the entire allegation of
sub-standard goods would fail.
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 supplier 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 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 a
supplier and proprietor of the firm M/s S.K. Surgicals, H.R. His role is
connected with one GEM Contract Order pertaining to LNJPN
Hospital. During investigation it was revealed that the
applicant/accused had to supply Absorbent Cotton I.P. 4700 pieces in
terms of GEM Contract Order dated 21.04.2023. The
applicant/accused had ordered M/s Alpha Surgical, Rohtak, Haryana
for supply of 4700 pieces. On 06.05.2023, the applicant/accused got
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receiving of 4700 pieces from LNJPN Hospital but he could not
explain the source. Further investigation revealed that on 06.05.2023,
the applicant/accused had supplied only 350 pieces which were
purchased from another manufacturer. M/s Alpha Surgicals had
supplied 4350 pieces on 09.05.2023 against the order, however the
delivery was approved by the approval committee prior to the said
supply on 08.05.2023. Subsequently the payment was made to the
applicant/accused on 16.06.2023. It is also urged that the vigilance
check lab report revealed “found containing polyester”.
It is stated that bail application of co-accused Rajesh
Malhotra was dismissed on 01.03.2024. Bail application filed by co-
accused Arjinder Pal Singh and 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
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.
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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.
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..........”
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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. 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 Kapil Makhija 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;
(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.
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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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