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Chief Metropolitan Magistrate, South East District, Delhi grants bail to Navneet Kalra, accused of hoarding and black marketing of Oxygen Concentrators in the National Capital.
Learned CMM, Arun Kumar Garg, while granting bail, directed the accused to admit bail bonds of 1 lac each and restricted to contact purchasers of concentrator pending investigation.
“…Accused Navneet Kalra is hereby admitted to bail on furnishing of Personal bond and two surety bonds of Rs 100000 each to the satisfaction of Ld. Duty MM (SE) with the condition that the accused shall not directly or indirectly try to influence the witnesses, shall not try to contact the customers to whom he had sold the oxygen concentrators during pendency of the investigation, shall not in any manner temper with the evidence and shall join the investigation as and when directed by the IO”, order says.
During the course of hearing, Court raised the following pertinent remarks;
“Yesterday I indicated that I am not able to comprehend this report, in the manner that… suppose this is used by somebody... Now we know that these cannot be used for increasing SpO2 below 88... This also I am telling by reading on internet only I am no expert… now suppose if the purity of Oxygen is 44%, will that increase the SpO2 level? Because if the patient inhales normal air, it will only be 21% ... You need to ask the Right Questions. You will have to specifically ask that will this machine make any difference for patients having SpO2 below 88. (On Machine Efficacy to APP)
If it is a scheduled device on DPCO, there can be a price fixed… You have not declared it as a Scheduled devise… Once you put it there you can also regulate the price of the retailer, that you have not done… It can be unethical but to show illegal there should be something in law (On argument of APP on huge profit margins accrued by the accused)
What is the point of representing it as 9 Litres when it cannot give that oxygen level? (To Defence Counsel Mr. Pahwa)
If within a day there is increase of more than 10% in the selling price, how can you say there is no violation of para 20 DPCO Order (On price variance by accused, as produced by the prosecution)
Prima facie one thing is clear... 420 is made out, as far is 3&7 EC is concerned, they are also made out with imprisonment upto 7 years (To Defence Counsel while asking if his submissions limit to Bail Jurisprudence)”
Submissions were made by Additional PP, Mr Atul Srivastava followed by rebuttal arguments by Defence Counsel, Mr. Vikas Pahwa.
Grievance of complainant Dharmendra Mishra was dismissed by the Court for absence of locus in a Bail Application.
APP rested his arguments primarily on;
APP: This very cardboard (box of concentrator) comes to be when I purchase it. I see the website to know about what I have been told. There is a possibility of Inducement and Cheating.
APP: As of now, no recovery from his premises show any German collaboration. Lab reports prove it is neither premium, nor does it have any German Collaboration and the flow is below 35%. It is not even usable for a single person leave aside two (as claimed by the accused), and the price is 27999, but people are purchasing for lakhs.
APP: Police are no super humans. They are prone to cheating and inducement too (on why police officials have purchased from the accused).
APP: It is the decision of Division Bench of Delhi HC that you hand over concentrators to the COVID centres.
APP: Using these concentrator for even mild to moderate patients, will cause harm. As per WHO, an Oxygen Concentrator should produce oxygen between 82 to 88%.
APP: There was no quality Management. Cheating in normal case is cheating. But here due to the gravity, it has been enhanced. Their intention was to cheat and make profit…There is a class. There is a white collar crime. It is not as normal as projected.
Reliance was placed on State v. Anil Sharma, where the Top Court while deciding rules of pre arrest, post arrest bail, said, where there is an apprehension of influencing witnesses, post arrest bail should not be granted. Further reliance was placed on Para 33 of Matrix cellular judgment delivered on 27.05.2021, where the Delhi High Court said, “Prima facie the act of the petitioner (Matrix Cellular) is in violation of an Office Memorandum, Ministry of Chemicals and Fertilizers, Government of India, of dated 29.06.2020, which had directed the petitioners and others like him (the present accused), selling oxygen concentrators, to not increase prices of oxygen concentrators by more than 10% of the maximum retail price in a year of the Drugs Pricing Control Order, 2013….”
Senior Advocate Vikas Pahwa reiterated on absence of Criminal intent, no ingredients of Section 420 IPC being made out, all transactions through banking channels with GST duly paid to the Government, Bail Jurisprudence, No credibility of reports by Sriram labs and AIIMS as the latter was based on the former and no MRP being fixed by the Government, to assess the price at which the accused was selling.
Sr. Adv. Pahwa: I am not here seeking quashing of FIR or that no offence is made out against me. I am here for seeking bail. I am not agitating for no offence against me. Today I have to show my conduct and intent. I am certainly not seeking discharge
Sr. Adv. Pahwa: My major thrust is on Bail and I have taken instructions, they can give the list of people and I will not contact them
Sr. Adv. Pahwa: I am not going on HPC guidelines but they have given instructions that Arnesh should be followed. They have said that don't arrest people, left right and centre. Direction has been given to the Police.
Reliance was placed on Para 3, Zahur Haider v. CBI, decided on 05.04.2019.
Also Read: You can twist law to suit facts but you cannot twist facts to suit law: Delhi Court observes while hearing Navneet Kalra's bail plea
Case Title: State v. Navneet Kalra
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