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Delhi High Court took up an urgent hearing on Anticipatory Bail of Navneet Kalra, prime accused in hoarding and black marketing of oxygen concentrators.

Earlier this morning, ASJ Shri Sandeep Garg rejected the application of the accused.

A bench led by Justice Subramonium Prasad, while hearing the matter today, posed two interesting questions at the outset;

Court: Was there any restriction on you for selling on a higher price or not?

Court: If these Oxygen concentrators are drugs, do you have the ability to store these drugs without a license under Drugs and Cosmetics Act, 1940?

Learned Senior Advocate(s) Vikas Pahwa, Abhishek Manu Singhvi represented the Petitioner.

Learned ASG, SV Raju appeared for the State.

“Criminality cannot flow in ambiguity. Mi Lord has to be shown of the violation of a Statute Prima Facie. The Act clarifies the scope of Section 2 juxtaposed with Section 3. It doesn’t matter if you are put into a schedule or not. ‘Essential’ is meaningless unless there is an order mandating MRP, because Section 7 Essential Commodity Act operates only on an Order”, submitted Senior Counsel Singhvi.

Other questions formulated by the Court during the course of hearing;

Court: If schedule include drugs and by this notification of 31^st March, drugs include devices, and if devices are to be included in the Drugs Control Order then would it not lead to a conclusion that it is an essential commodity under the Act?

Court: Whether or not the Drug Control Order in question would apply to Imported Goods?

Court: If a Drug Control Order fixes price, will that be an Order under Section 3, Essential Commodities Act?

Senior Counsel, emphasizing on his argument that there is no Order mandating MRP, placed reliance of the CMM Court order delivered yesterday in the regular bail of Matrix Employees, which said, “Despite repeated directions by Hon’ble High Court of Delhi, the govt. is not coming forward to cap the price of essential medical devices. Nor any regulation has been made by the government for sale of the same by the importers to the Government for its equitable distribution to the needy persons for reasons best known to the Govt. Mere booking of the manufacturers/importers under the criminal law without a regulatory regime in place and without any evidence just to show that the state is concerned about the problems of citizens in procurement of life saving medical devices, in my considered opinion, will be counter-productive and shall create a further scarcity of already scarce medical devices as it will discourage the manufacturers and importers from pushing their resources so as to make the essential medical devices available to the needy citizens.”

Senior Counsel Singhvi: This is a classic case with compulsion to norm. Sometimes the biggest form of censorship is your own compulsion to perform as per the current standard set by the media and this a fit case.

Senior Counsel Singhvi: There is so much pressure on the police to arrest me. The media would prosecute the police if I am not arrested.

Learned Senior Counsel further referred to a Division Bench Order of Justice Sanghi and Justice Palli dated May 12, 2021, where Learned Amicus said, “Union of India should immediately proceed to fix the MRP of all products that fall within the definition of drugs under the Drugs and Cosmetics Act, since delay to do so may be taken advantage by those indulging in black marketing of such products…”

One there has to be an Order. Second there has to be a Contravention: Senior Counsel Singhvi

Second limb of the argument was on satisfying ingredients of Section 415, 420 IPC, submitting that (1) There was no Inducement to any party (2) There was no wrongful loss to any party. Moreover the offences that accused has been charged with are bailable in nature.

Senior Counsel went on to submit on reasons and grounds for Anticipatory Bail; reference was inter-alia drawn to Gurubaksh Singh Sibbia, calling it as “old is gold”, Division Bench judgment of Gauhati High Court, Arnesh Kumar Guidelines, Triple test of allowing Bail, Sushila Aggarwal v. NCT of Delhi.

 “I will cooperate fully but not by treating me a fleeting criminal all over the place”, submitted the Senior Counsel.

Para 7.1, 7.2 of Arnesh Kumar, (2014) 8 SCC 273 as relied by the Senior Counsel; “it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured.”

Learned ASG started his submissions, calling it a “classic case of black marketing by taking advantage of needy people”; The accused induced by claiming the products to be of a premium quality; “Out of the seized Concentrators, two samples were checked and I'm shocked to see that the output is only 32%”

“If we grant him Anticipatory Bail, Crucial evidence will go missing. What is also required is… society must also be taken with balance, as far as societal interest must be considered. Wrong message will be sent to all other Black Marketeers”, added ASG, SV Raju.

The hearing is adjourned for tomorrow, at 12 noon.