IN THE COURT OF LD. DISTRICT & SESSION JUDGE, SAKET COURT, SOUTH DISTRICT, NEW DELHI

BAIL APPLICATION NO.__________ OF 2021

IN THE MATTER OF:

XXXXX                         Versus                        XXXXX

INDEX

APPLICANT

                                                    Through

Date:

New Delhi

COUNSEL

XXXXX & ASSOCIATES

Office No.- XXXXXXX

Mob- XXXXXXX

Email - XXXXXXX

IN THE COURT OF LD. DISTRICT & SESSION JUDGE, SAKET COURT, SOUTH DISTRICT, NEW DELHI

BAIL APPLICATION NO.__________ OF 2021

IN THE MATTER OF:

XXXXX                

Versus

______________________

S/o XXXXX

Age: XXXXX, Occupation: XXXXX,

R/o XXXXX

Aadhar Card No.: XXXXX                         

FIR No._______ dated __________

PS: XXXXX

U/s- 3/7 Essential Commodities Act, 1995, Sec 3 of Epidemic Diseases Act, 1897

Sec 420/468/471/188/120B/34 IPC

      APPLICANT is in custody since _________

FIRST BAIL APPLICATION ON BEHALF OF APPLICANT/PETITIONER U/S: 439 OF Cr.P.C IN FIR NO._______, PS: _____________

MOST RESPECTFULLY SHOWETH:-

1.           That the applicant is a law-abiding citizen of India, residing at the above-given address, who by way of present Criminal bail application U/s-439 of Cr.P.C. is seeking regular bail in respect of applicant’s arrest in FIR No._______, dated _______ registered with Crime branch Police Station,_________ in the following facts and circumstances of the present case.

2.           That the applicant approached the Ld. Chief metropolitan Magistrate for regular bail and Ld. CMM was pleased to dismiss the bail application on _________ and the dismissal order is annexed as Annexure-A.

3.           That the applicant submits that he was falsely implicated from HIS Hotel Lemon Tree, __________ and on _________, his younger brother XXXXX made a sent a complaint to higher authorities regarding the his brother’s illegal arrest from his hotel and also the counsel of the applicant made a complaint to the commissioner of police, Delhi and Commissioner of police, XXXX regarding the illegal arrest and the said FIR has been annexed herewith as ANNEXURE-B and the copy of police complaints are annexed here as ANNEXURE-C (Colly).

4.           That it is clarified at the outset that Applicant’s father XXXXX (having qualification of D.Pharmacy) has License (Form-21C) as per Rule 63A issued by Asst. commissioner, Food & Drug Administration, XXXXX w.e.f. XXXX in the name of “XXXXX’’ AT XXXXX Same is still operational.

5.           That another license in Form-20B and Form-21B the name of “XXXX’’ was obtained from XXXX from Asst. Commissioner, Food & Drug Administration, at XXXX (Underground), Plot No. XXXXXXX Admittedly, said License has been renewed lastly on XXXXX which is valid upto XXXXX. The copies of “XXXXX’’ and License Renewal Letter of “XXXXX” issued by Assistant Commissioner, Food & Drug Administration, Jalgaon is annexed herewith as ANNEXURE-B (Colly).

6.           That the Applicant after completing his B.Pharmacy Course joined his father’s business in XXXXX. Thereafter he also obtained License (Form-D) under Rule 6 w.e.f. XXXX in the name of “XXXXX” through which he supplies Ayurvedic products to different Ashrams. The copy of License (Form-D) of XXXXX dt:- XXXX is annexed herewith as ANNEXURE-C.

7.           That the Applicant XXXX also doing business of procuring and supplying masks & medical gloves under “XXXXX” and also under “XXXXX”, wherein he was assisted by XXXX. That during the course of said business of masks & medical gloves, the applicant came in contact with XXXX from XXXX. It is pertinent to mention here that a Sale-Purchase Agreement between M/s. XXXXX & M/s. XXXXX dt. XXXX was executed and consequential transfer of amount through bank entries on XXXX (Rs. XXXX/-), XXXX (Rs. XXXX/-), XXXX (Rs. XXXX/-) by M/s. XXXX to M/s. XXXX Was made which clearly shows that Applicant was in legal business of mask & medical gloves and for that purpose only he along with Rajesh Indulkar had come to XXXX. The copies of Sale-Purchase Agreement dt. XXXX between M/s. XXXX & M/s. XXXX along with bank statements (showing transfer of amount of on XXXX, XXXX & XXXX) are annexed herewith as ANNEXURE-D (Colly).

8.           That it is pertinent to mention here that with the valid and existing license for M/s. XXXXX /Applicant herein also had Purchase Order dated XXXX of Remdesivir injections and for that purpose as well for the purpose of compliance of transaction with M/s. XXXX, the applicant and XXXXX together came to XXXX on XXXX. The copy of the Purchase Order dated XXXX of M/s. XXXX (for Remdesivir injections) is annexed herewith as ANNEXURE-E.

9.            That the Applicant on XXXX was staying with XXXX in Room No. XXXXX, when at about XX pm, the investigation team of Crime Branch Police Station came there under the pretext that arrested accused Mohan Kumar Jha in FIR No.XXXX has disclosed the name of XXXX and XXXX. It is pertinent to mention herewith utmost honesty & accountability that during personal interrogation as well as search of Room No. XXXX, no incriminating material was found. Even then, right from XXXX on XXXX, both XXXX and XXXX were taken into custody by investigation team of Crime Branch Police Station. That they were initially taken to XXXX and from there they were brought to Crime Branch Police Station, XXXX where they were badly beaten, physically tortured and mentally harassed. Shockingly, till XXXX, XXXX was illegally detained in police lock-up without showing his arrest, whereas Rajesh Indulkar was released from illegal detention on XXXX.

10.        That at this juncture itself it becomes the matter of great importance to mention before this Hon’ble Court that the guidelines laid down in para 35 of D.K.Basu vs. State of West Bengal: (1997) 1 SCC 416 were completely violated. Further to mention in the same way the Hon’ble Supreme Court in Arnesh Kumar vs. State of Maharashtra : (2014) 8 SCC 273 has clearly laid down as under:-

“As per section 41(1)(b)(ii) of Cr.P.C., when offence is punishable upto 7 years imprisonment; Police officer can only arrest a person,

(a)      If he is satisfied that person has committed offence;

(b)     Further he should be satisfied that arrest is necessary

(i)       to prevent commission of further offence OR

(ii)      for proper investigation of offence OR

(iii)     to prevent accused from tampering evidence OR

(iv)     to prevent accused from threatening witnesses OR

(v)      to ensure presence of accused in Court

Police officer has to record reasons in writing.

As per Article 22(2) of the Constitution of India & section 57 of Cr.P.C., within 24 hours of arrest, accused must be produced before Magistrate. If Magistrate is satisfied that arrest is legal [i.e. satisfying requirement u/s.41(1)] then Magistrate authorizes further detention u/s.167 Cr.P.C.. Magistrate has to record his satisfaction in writing. But if Magistrate feels that ‘arrest does not satisfy requirement u/s.41(1) then Magistrate cannot authorize further detention u/s.167 Cr.P.C. and has to release accused.

As per section 41A of Cr.P.C. when arrest of person is not required u/s.41(1), then Police Officer has to give him notice for appearance, then accused is obliged to appear before him. If accused complies with the said notice, then accused cannot be arrested. But, if police officer thinks that “arrest is necessary”. Then by recording reasons in writing, Police Officer can arrest him. Then also conditions in section 41(1)(b)(ii) will apply and it shall be subject to same scrutiny by Magistrate.”

That in the present case of the applicant, aforesaid decision laid down by Supreme Court is clearly violated thereby violating his fundamental rights under Article 14, 19(1)(d), (g), 21 & 22 of the Constitution of India.

11.        That again it is pertinent to mention here on XXXX, the concerned Police machinery started demanding Rs. XXXX/- for letting off applicant/XXXX & XXXX. That the Police machinery on XXXX took only the applicant/XXXX back to Room No. XXXXX and there from locker inside cup-board of the said room, cash amount of Rs. XXXX/-was taken out, out of which Rs.XXXX/- was handed over to XXXX for clearing hotel bill, whereas Rs.XXXX/- cash was retained by police personnel even without conducting seizure panchanama. Moreover it is pertinent to mention here the said amount of money was not referable to crime in question and hence could not possibly have been seized. It is pertinent to mentionhere that beside it the police personnel found 2 boxes of medical hand gloves at that time, which were taken away by them. That this clearly shows that applicant XXXX and XXXX had come to Delhi for dealing regarding medical hand-gloves only. That it is pertinent to mention, on the same day threatening of dire consequences of false implication in fake Remdesivir racket, the said investigation machinery demanded Rs.XXXX/- for letting of XXXX and XXXX. That with utmost honesty & accountability it is clarified that XXXX and XXXX were in touch with XXXX regarding the procurement of masks & medical hand gloves as well as genuine vials of Remdesivir injections.

12.        That it is pertinent to mention here the applicant XXXX is not absolutely aware of (i) XXXX; (ii) XXXX; (iii) XXXX; (iv) XXXX etc. That the applicant is absolutely not aware of these 4 persons and never met them at any point of time. That on XXXX, when Applicant’s brother namely XXXX came to Delhi and rushed to Crime Branch Police Station at XXXX, then the applicant disclosed his brother that he has been badly beaten up by police machinery and at that time also police machinery demanded additional amount. To save the applicant from false implication, XXXX had to borrow the amount from one XXXX friend residing in XX, and he then paid an additional Rs.XXXX/- to Police machinery at Crime Branch Police Station, XXXX.

13.        That it is pertinent to mention thereafter, on XXXX. XXXX was freed from illegal detention of Crime Branch Police Station, XXXX. That here the question arises, if XXXX & XXXX were together and were picked up on XXXX (at about XX pm)  from Room No. XXXX then very fact why that XXXX was freed (that too after illegal detention for 48 hours). It is again pertinent to mention here that if XXXX was freed then similarly placed XXXX too ought to have been freed, applying doctrine of parity. But, treating XXXX as milking cow, from whom so far Rs. XXXX /- has been extracted as an illegal gratification for showing favour while discharging public duties. Thatthe police machinery started insisting that the entire demand of Rs.XXXX/-should be complied with, otherwise XXXX shall be fixed in illegal racket of COVIPRI i.e. Remdesivir injections.

14.        That it is shown by the Police that XXXX with 6 Remdesivir injections and XXXX with 6 Remdesivir injections were arrested at XXXX is absolutely wrong and with utmost accountability & honesty it is submitted that XXXX never knew i) XXXX; b) XXXX; iii) XXXX; iv) XXXX. Further, XXXX was never in possession of 6 vials of COVIPRI i.e. Remdesivir injections and he was not at all with XXXX at Yamuna Vihar, New Delhi, on XXXX. Investigation machinery has created completely false record.

15.        That the applicant had never been to XXXX to meet XXXX, XXXX or XXXX at any point of time.

16.        That again pertinent to mention from XXXX to XXXX, Applicant was illegally detained, mercilessly beaten in police custody in fragrant violation of his fundamental rights under Article 14, 19(1)(d), 21 of the Constitution of India and directly in the teeth of law laid down by Hon’ble Supreme Court in D.K.Basu vs. State of West Bengal : (1997) 1 SCC 416 and Arnesh Kumar vs. State of Bihar : (2014) 8 SCC 273.

17.        That thereafter on XXXX the applicant was produced before Ld. Duty MM along with remand application by IO, Crime Branch Police Station, Chanakyapuri through video conference, when accused was admittedly in their police custody, and Ld. Duty MM was pleased to grant 3 days PCR to present Applicant i.e. upto XXXX.

18.        That thereafter, through VC hearing, Applicant XXXX was produced before Ld. Duty MM for remand on XXXX and it appears that he has been remanded to MCR for 14 days. It is clarified that on XXXX, Applicant’s brother was called at Crime Branch Police Station, XXXX, and 2 boxes of medical hand gloves as well as XXXX cell-phone was handed over to XXXX.

19.        That at this juncture it is clarified that Applicant is seriously suffering from life-time disease of Ulcerative Collitis (Ulcerative colitis is an inflammatory bowel disease (IBD) that causes inflammation and ulcers (sores) in your digestive tract. Ulcerative colitis affects the innermost lining of your large intestine (colon) and rectum. Symptoms usually develop over time, rather than suddenly). He is on continuous medication and the information received by the brother of applicant that the applicant’s is not well and seriously ill because of IBD stroke in the jail.

20.        That in view of facts and circumstances mentioned hereinabove, present Applicant begs to file regular bail application u/s.437 of Cr.P.C. in respect of his arrest in FIR No. XXXX dated XXXX registered with Crime Branch Police Station, XXXX on following amongst several other grounds which are without prejudice to each other.

21.        That the guidelines laid down in para 35 of D.K.Basu vs. State of West Bengal : (1997) 1 SCC 416 are completely violated, same way Supreme Court in Arnesh Kumar vs. State of Maharashtra : (2014) 8 SCC 273 clearly laid down as under:-

“As per section 41(1)(b)(ii) of Cr.P.C., when offence is punishable upto 7 years imprisonment; Police officer can only arrest a person

(a)      If he is satisfied that person has committed offence;

(b)     Further he should be satisfied that arrest is necessary

(i)       to prevent commission of further offence OR

(ii)      for proper investigation of offence OR

(iii)     to prevent accused from tampering evidence OR

(iv)     to prevent accused from threatening witnesses OR

(v)      to ensure presence of accused in Court

Police officer has to record reasons in writing.

As per Article 22(2) of the Constitution of India & section 57 of Cr.P.C., within 24 hours of arrest, accused must be produced before Magistrate. If Magistrate is satisfied that arrest is legal [i.e. satisfying requirement u/s.41(1)] then Magistrate authorizes further detention u/s.167 Cr.P.C.. Magistrate has to record his satisfaction in writing. But if Magistrate feels that ‘arrest does not satisfy requirement u/s.41(1) then Magistrate cannot authorize further detention u/s.167 Cr.P.C. and has to release accused.

As per section 41A of Cr.P.C. when arrest of person is not required u/s.41(1), then Police Officer has to give him notice for appearance, then accused is obliged to appear before him. If accused complies with the said notice, then accused cannot be arrested. But, if police officer thinks that “arrest is necessary”. Then by recording reasons in writing, Police Officer can arrest him. Then also conditions in section 41(1)(b)(ii) will apply and it shall be subject to same scrutiny by Magistrate.”     

In the present case of XXXX, aforesaid decision laid down by Supreme Court is clearly violated thereby violating his fundamental rights under Article 14, 19(1)(d), (g), 21 & 22 of the Constitution of India.

Investigation machinery has created completely false record. Therefore, as per parameters laid down by Hon’ble Supreme Court in S.W.Palantikar vs. State of Bihar: (2002) 1 SCC 241, provisions of section 420 of IPC are not attracted in the present case with regard to Applicant.

20.    That the FIR No. XXXX dated XXXX does not mention name of present Applicant. Only because accused XXXX, after getting arrested has falsely accused present Applicant and therefore as per provisions of section 25 & 26 of Indian Evidence Act, present Applicant has been illegally and falsely framed in the present FIR No. XXXX dated XXXX and needs to be released on bail.

21.    That the guidelines laid down by Hon’ble Supreme Court in Arnesh Kumar vs. State of Bihar : (2014) 8 SCC 273 are clearly violated. When the present offences in question mentioned in FIR No.70/2021 are punishable with less than 7 years imprisonment, then police officer was bound to issue notice U/s 41 of Cr.P.C. and ought to have called him before directly resorting to his arrest. Therefore, his arrest is illegal per se and in gross violation of mandate u/s.41 Cr.P.C. as well as law laid down in (2014) 8 SCC 273.

22.    That the parameters for grant of regular bail laid down by Hon’ble Supreme Court in Sanjay Chandra vs. CBI : (2012) 1 SCC 40 are as under:-

“21.   In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

22.    From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.

23.    Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.”

Applying the said parameters laid down by Hon’ble Supreme Court to the facts of the present case, it is most respectfully submitted that case for grant of regular bail to Applicant is clearly made out.

Admittedly, present Applicant satisfies those parameters in the facts of the present case and therefore entitled to be released on bail by applying the parameters laid down by Supreme Court in Sanjay Chandra vs. CBI: (2012) 1 SCC 40.

23.    That the present Applicant has fully cooperated with police machinery during the custodial interrogation right from the beginning.

24.    That the Applicant is seriously suffering from life-time disease of Ulcerative Collitis (Ulcerative colitis is an inflammatory bowel disease (IBD) that causes inflammation and ulcers (sores) in your digestive tract. Ulcerative colitis affects the innermost lining of your large intestine (colon) and rectum) and medical report on record clearly shows that Applicant is continuous medical treatment for the same and on these medical grounds also, present Applicant needs to be released on Bail.

25.    That the provisions of section 3 & section 7 of Essential Commodities Act, 1955 are not at all attracted in case of the present Applicant. It is clarified that present Applicant along with other family members runs “XXXX” at XXXX. Applicant is carrying on the business of procuring medical gloves and supplying the same to authorized dealers in XXXX. Since Applicant is pharmacist and his family operates licensed XXXX, therefore Applicant came to Delhi for placing certain orders of medical hand gloves. It is further clarified that the Applicant was never even found selling Remdesivir vials at higher prices. It is furthermore submitted that any order issued under section 3 of the Essential Commodities Act 1955 by Competent Authority having not been violated by Applicant himself, therefore provisions of offence u/s. 7 of the said Act are not attracted.

26.    That section 3 of Epidemic Diseases Act, 1987 is not at all attracted to the present Applicant. It is clarified that, present Applicant had come to Delhi with the sole purpose of placing order for medical gloves and that he is in no way involved in selling of Remdesivir vials at higher prices. Furthermore, present Applicant was never caught selling Remdesivir vials at higher prices. Therefore, present Applicant has not disobeyed any order under the said Act. Applicant is a law-abiding citizen and had come to Delhi only to conduct legitimate business activity only with related to medical gloves for his licensed concern “XXXX”. Therefore, neither section 3 of Epidemic Diseases Act, 1987 not section 188 of IPC are attracted to the facts of the present case.

27.    That the prosecution has no evidence regarding present Applicant being involved in any pre-planned conspiracy to sell Remdesivir vials at higher prices and therefore as per parameters laid down by Hon’ble Supreme Court in Rajiv Kumar vs. State of UP: (2017) 8 SCC 791, provisions of section 120B of IPC are not at all attracted to the facts of the present case.

28.    That as per parameters laid down by Hon’ble Supreme Court in Suresh vs. State of UP: (2001) 3 SCC 673, parameters of section 34 of IPC are not at all attracted to the facts of the present case.

29.    That the present Applicant has aged parents, young wife and 3 years old daughter to look after. All of them are solely dependent on the present Applicant. Further he himself requires continuous medication and doctors’ attendants for treating his Ulcerative Colitis. His family has immovable properties i.e. residential house (whose address is given in the cause title) and shops (whose address is given in License of XXXX). Therefore, there is no chance of Applicant absconding if he is released on bail. Applicant is ready to provide surety to the satisfaction of this Hon’ble Court. Applicant undertakes not to tamper with prosecution evidence, and not to threaten any prosecution witnesses. Applicant is ready to abide by conditions likely to be imposed by this Hon’ble Court while releasing him on bail including attendance, if any, before investigation machinery.

30.    That the documents filed herewith are true copies of their respective originals.

31.    That the applicant undertakes to cooperate in the police investigation and shall abide by the directions of this Hon’ble Court and would be present before any authority whenever s directed to be present. The copies of the ID Proof of applicant is annexed herewith as ANNEXURE-H (Colly).

32.    That the applicant therefore prays that:-

PRAYERS

It is therefore most humbly prayed before this Hon’ble Court that this Hon’ble Court in the abovementioned facts and circumstances of the present case will be pleased to :-

a)           release Applicant XXXX on bail [in respect of his arrest in FIR No. XXXX dated XXXX registered with Crime Branch Police Station, XXXX on such terms & conditions as this Hon’ble Court may deem fit in the interest of justice;

b)           during the pendency and final disposal of the present regular bail application, grant interim bail for a period of 90 days to applicant XXXX [in respect of his arrest in FIR No. XXXX dated XXXX registered with Crime Branch Police Station, XXXX on such terms & conditions as this Hon’ble Court may deem fit in the interest of justice;

c)            pass any other appropriate order, which this Hon’ble Court may deem fit and proper.

                                                                                  APPLICANT

                                             Through

Date

New Delhi                                                                      COUNSEL

XXXX & ASSOCIATES

Office No.- XXXXX

 Mob- XXXXX

Email- XXXXX