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Oxygen concentrator hoarding: Even if FIR is considered gospel truth, no case made out against 4 Matrix staff, says Delhi Court granting them bail

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A Delhi court has granted regular bail to four men accused in black marketing and hoarding of oxygen concentrator while noting even if all averments in FIR presumed to be “gospel truth” still no prima facie case made against the accused persons. 

The Court said at the best a case of breach of contract is made out and no prima facie case for cheating under section 420 IPC is made out against the accused more so when the allegations are specifically against co-accused Navneet Kalra. 

The Chief Metropolitan Magistrate Arun Kumar Garg has granted regular bail to Gaurav Suri, Gaurav Khanna, Vikrant & Satish Sethi. 

The Court said, “the accused is hereby admitted to bail on furnishing of PB and SB in sum of Rs. 50,000/- 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 in any manner temper with the evidence and shall join the investigation as and when directed by the IO. Bail Bonds not furnished.”

“It may be noted that the gravemen of the case of the prosecution is the alleged black marketing and hoarding of concentrators by the accused, however, the aforesaid terms are not defined in any of the Acts under consideration before this Court. The only relevant provisions which seems to regulate the black-marketing and hoarding (as per the meaning of the said terms in common parlance) in case of non scheduled drugs (which presently includes medical devices) in the DPCO seems to be para 20, 25, 26 and 28. Out of these para 20, 25 and 26 seems to take care of the black- marketing of the non-scheduled drugs such as oxygen concentrators and Masks and para 28 seems to have taken care of hoarding,” noted by the Court in its 21-page order. 

“However, as has been observed hereinabove, no evidence seems to have been collected by the IO qua the said violations till date. So far as para 28 of DPCA is concerned, admittedly M/s Matrix had been selling the concentrators through X factor App which is reported to be available on play store and mac since the year 2016,” said the Court. 

The Court further said, “Thus, in view of the aforesaid discussions, in my considered opinion, the accused is entitled to bail at this stage more so when admittedly as per the IO all the documents required by the IO from the accused at this stage have been supplied to the IO which are being verified by the IO and accused is admittedly having clean antecedents. The apprehension of the state that the accused may try to influence the witnesses and temper with the evidence can be allayed by imposing suitable conditions upon the accused. Similarly by directing the accused to join investigation, the plea of the state regarding investigation being at an initial stage and chances of the accused hampering the investigation can be taken care of. Merely because the IO can apply for PC remand of the accused during the first fifteen days can also not be the ground to deny bail to the accused.”

During the hearing the Senior Counsel appearing for accused said that the accused has been falsely implicated in the present case under the charges for alleged commission of offence u/ss 3/7 of the Essential Commodities Act, 1955, Section 3 of the Epidemic Diseases Act, 1897 and Sections 420/188/120B/34 IPC. He submits that although none of the offences alleged by the prosecution is made out against the accused based on averments made in the FIR, however even if, it is assumed for the sake of arguments that the offence u/ss 188 IPC and Section 3 of the Epidemics Diseases Act are made out, the same are bailable.

He submitted that the only allegations against the accused in the present case is that of black marketing and hoarding of certain medical equipments such as Oxygen Concentrators, N-95 Masks and thermal scanners in connivance and conspiracy with the other accused persons, however, the accused is merely a paid employee i.e. business head at Matrix Cellular (International) Services Ltd. (=M/s Matrix) which is engaged in the lawful business of import and sale of the aforesaid equipment so as to make the same available to the needy persons in the present grim situation arising out of COVID-19. In support of his submissions regarding the aforesaid company being a lawful importer and seller of the said devices Ld. Counsel for the accused has relied upon a number of invoices reflecting purchase and sale of the said equipment by the aforesaid company.

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