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Ld. CMM Arun Kumar Garg adjourned hearing in the Bail Application of Navneet Kalra for tomorrow 10:30 AM, as Additional PP, Shri Atul Shrivastava sought time for an urgent hearing in Rohini Court.

Arguments were made by Senior Advocate Vikas Pahwa and Adv. Vineet Malhotra for the Accused, on

- no ingredients of Section 420 IPC being made out;
- no Price fixing by the Government therefore no proven black marketing;
- parity with co-accused(s), No power of Police to Arrest under the Drugs and Cosmetics Act;
- quality of concentrator;
- endeavour of various High Courts and the Supreme Court towards Decongestion of Jails; and 
- dismissing reports by Sri Ram Labs, a private lab, for no proven credibility.

Interestingly, Court hearing the matter was same which granted Bail to the Matrix employees, hence at the very outset learned CMM Arun Kumar Garg carved out significant differences between the two applications.

In the course of hearing, Court said,
“Your case is that you are not an importer. From importer, Matrix say you purchased 500 odd concentrators. Now you did not sold it through any app or chemist shops but through WhatsApp groups, in your friends and relatives. Matrix can be considered to have helped in increasing the supply within the country by importing, but you have purchased from them, kept it at your warehouse and sold in your known… at higher price also… in that sense will it not be covered under black marketing?”

Defence Counsel contended that 10% extra was charged only where the accused took an undertaking to get defected piece replaced, as the Importer did not provide any warranty. It was also added that if the concentrators are, so to say of a “sub-standard quality”, why did the Prosecution, the Delhi Police Officials provided the same to COVID centres or purchased it from the accused at the first place.

Reliance was placed on Union of India v. Ashok Kumar Sharma, 2020 SCCOnLine SC 683, Order dated 24.05.2021 by Justice Asha Menon, Order by Tis Hazari Court dated 19.05.2021, bearing similar facts, HPC guidelines, Arnesh Kumar judgment, previous order passed granting bail to the Matrix employees.

Further it was submitted that the quality of Oxygen Concentrator varies, essentially reduces with increase in Litres.

Senior Counsel Pahwa: Everything is mentioned. Flow chart showing Litre per minute says that oxygen level reduces with increase in quantity. With 9L, it will be between 20-30%. When we increase the Litre, Oxygen level reduces. This is represented everywhere.

Court was also apprised of the fact that the Prosecution/IO, was reaching out to several people, connected with Kalra, to lodge complaint against him for selling defective concentrators.

Senior Counsel Pahwa: Till date there is no allegation that I influenced any party… police is calling all the customers to file a complaint…They called Vineet Malhotra not knowing that he is representing him…They called his own son. There are no voluntarily complaints in the matter.

Six grounds were raised by the Prosecution, opposing the Bail Application, illustratively;

1. Accused is an Influential person and the probabilities of threatening or winning over the witnesses cannot be ruled out.
2. Investigation is at a very premature stage and any relief to the accused may hamper the process of investigation.
3. Total 137 concentrators have been recovered from three restaurants of the accused.
4. Applicant is the owner of the three restaurants from where recoveries have been made.
5. Accused is involved in black marketing of the concentrators which have been essentially categorised under Medical devises and drugs, amid this crucial time of pandemic.
6. Accused may tamper with evidence.

Hearing also saw unwanted interjections, which was addressed by the Learned CMM towards the end;

Court: When Senior comes in, we expect some concessions. It is not important to argue on everything…Only what is germane to decide the said application. There is a rule which says that a Senior Advocate placing overruled judgment will be liable for Contempt. I will not hesitate to issue contempt if there are irresponsible submissions. I will issue a show cause notice. You will have to maintain decorum and contain your arguments.

Court: Prosecutor is a neutral person. You should twist law to suit the facts but you cannot twist the facts to suit the law.

Laying down the propositions expected to be addressed by the Additional PP, Learned CMM listed the matter for tomorrow.

On locus of Third party in Bail Applications, as raised by complainant Dharmendra Mishra, orders will be pronounced at 10:00 AM, continued by arguments by the Additional PP from 10:30 AM.