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. 59/2024
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 Hemant Joshi
20.04.2024
This is a bail application u/s 439 Cr.P.C. moved
on behalf of the applicant/accused Hemant Joshi s/o Mohan
Chandra Joshi.
Present : Sh. Masood Ahmad, ld. Chief P.P. for the State.
Sh. Aditya Singh, 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 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 nine co-accused persons have already been granted bail
vide orders dated 12.04.2024, 16.04.2024, 18.04.2024 and 19.04.2024.
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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 a GEM supplier
and he had to supply 48960 Cotton Bandages in LNJPN Hospital and
the applicant/accused placed 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 is supplier of
firm namely Vristi Technologies and after receiving GEM contract of
Cotton Bandages, applicant/accused approached firm R.J. Traders of
co-accused Rahul Chaurasiya for supply of cotton bandages. A tax
invoice was generated in the name of M/s R.J. Traders on 27.05.2023
and 05.06.2023 and at request of applicant/accused co-accused Rahul
Chaurasiya shipped the consignment of Cotton Bandages to LNJPN
Hospital.
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.
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Moreover, the allegation of forgery is based upon the premise that the
articles supplied to the hospital were sub-standard and since the IO
has failed to show in accordance with the DC Act, that the goods i.e.
Cotton Bandages 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
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 was the
supplier of firm namely M/s Vristi Technologies and he was involved
in one GEM Contract order pertaining to LNJPN Hospital. It is stated
that in terms of GEM contract order dated 16.05.2023,
applicant/accused was to supply quantity 48960 items Cotton
Bandages in LNJPN Hospital and for said purpose he contacted one
R.J.Traders and co-accused Rahul Chaurasiya on India Mart. It is
stated that the applicant/accused supplied the material to hospital as
supplied to him by co-accused Rahul Chaurasiya on 27.05.2023,
31.05.2023 and 05.06.2023, as per invoice. It is also urged that the
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applicant/accused provided a forged lab report after vigilance check
conducted on 18.08.2023 and the said report was got placed in the
records of the hospital. It is stated that as per Vigilance Check Sample
Lab Report the cotton bandages supplied by the applicant/accused
contained cotton as well as polyester.
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 LNJPN 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. 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
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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..........”
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. Nine co-accused persons have
already been granted bail vide orders dated 12.04.2024, 16.04.2024,
18.04.2024 and 19.04.2024. Considering the aforesaid and the fact
that sanction u/s 17A of PC Act is yet to be obtained against public
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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 Hemant Joshi 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.
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.
20.04.2024
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