Final Order 1

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. 57/2024
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 Bipin Kumar Pathak
18.04.2024
This is a bail application u/s 439 Cr.P.C. moved
on behalf of the applicant/accused Bipin Kumar Pathak s/o
Laxmi Kant Pathak.
Present : Sh. Ajit Kumar Srivastava, ld. Chief P.P. for the State.
Sh. Sunil Dwivedi, ld. Counsel for the
applicant/accused.
IO/ACP Jarnail Singh.
Reply filed by the IO.
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 and he
has not been named 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 seven co-
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accused persons have already been granted bail vide orders dated
12.04.2024 and 16.04.2024. 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
authorized signatory of M/s Hydel Laboratories Pvt. Ltd., U.P. and it
is alleged that a forged lab report dated 18.01.2023 pertaining to
delivery of sanitizers in DDU Hospital on 18.01.2023 was prepared by
him. 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 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
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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
Authorized Pharmacist (Authorized Signatory) of M/s Hydel
Laboratories Pvt. Ltd., U.P., and he prepared a forged lab report dated
18.01.2023 pertaining to delivery of sanitizers in DDU Hospital. The
owner of M/s Hydel Laboratories Pvt. Ltd. i.e. co-accused Mohd.
Shahid Chaudhary was also arrested in this case. It is stated that the
relevant register of laboratory has been seized as per which no sample
was received on 16.01.2023 for testing. The payment regarding the
forged lab report was made on 30.01.2024 and the messages
indicating forwarding of forged report dated 18.01.2023 were found in
the email of co-accused Shekhar on 30.01.2024, thereby indicating
that the lab report was back dated and prepared on 30.01.2024 after
the vigilance check.
It is stated that bail application of applicant/accused as
well of co-accused Rajesh Malhotra were dismissed 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. The samples were 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.
170.2. There is no bar to the police officer,
however, to investigate and prosecute the person
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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 lab report was not in existence and it was prepared 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. Seven co-accused persons have already been granted bail
vide orders dated 12.04.2024 and 16.04.2024. 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 Bipin Kumar
Pathak 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
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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.
18.04.2024
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IN THE COURT OF DEEPALI SHARMA,
SPECIAL JUDGE (PC ACT) (ACB-01)
RADC: NEW DELHI
In Bail Application No. 57/2024
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 Bipin Kumar Pathak
18.04.2024
Present : Sh. Ajit Kumar Srivastava, ld. Chief P.P. for the State.
Sh. Sunil Dwivedi, ld. Counsel for the
applicant/accused.
Ld. Counsel for the applicant/accused Bipin Kumar
Pathak moved an application for reducing the surety amount.
Ld. Counsel for the applicant/accused submits that
vide order announced today applicant/accused is granted bail on
furnishing bail bond in the sum of Rs. 50,000/- with one surety in like
amount. It is urged that applicant/accused is very poor and unable to
arrange for surety of Rs. 50,000/-. Ld. Counsel prays to reduce the
bail bond and surety amount from Rs. 50,000/- to Rs. 30,000/-.
In view of submissions made and in the interest of justice,
present application stands allowed. Bail bond and surety bond amount
of accused Bipin Kumar Pathak is reduced from Rs. 50,000/- to Rs.
30,000/-. Application stands disposed of accordingly.
( Deepali Sharma )
Special Judge, PC Act(ACB-01)
RADC, New Delhi.
18.04.2024
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