Prof. Dr. V.S. Parmar vs State Govt. Of Nct Of Delhi
2011 Latest Caselaw 3821 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+       CRL.REV.P. 355/2011

%                          Judgment delivered on:9th August, 2011


        PROF. DR. V.S. PARMAR                  ..... Petitioner
                        Through : Mr. S.K. Sharma, Adv.

                      versus


        STATE GOVT. OF NCT OF DELHI          ..... Respondent
                      Through : Ms. Rajdeepa Behura, APP for the
                      State with IO

        CORAM:
        HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may   be allowed to
        see the judgment?                           NO
     2. To be referred to Reporter or not?          NO
     3. Whether the judgment should be reported     NO
         in the Digest?

SURESH KAIT, J. (ORAL)

1. By the instant petition, the petitioner has challenged the

order dated 28.07.2011 passed by the ld. MM.

2. The F.I.R. No.31/10 dated 08.04.2010 under Section 337 of

the IPC was lodged against six accused persons including the

petitioner.

3. Ms. Rajdeepa Behura, ld. APP for the State submits that

during investigation Sections 338/304 of the IPC and Section 24

of the Atomic Energy Act, 1962 were added. She further submits

that the charge sheet is almost ready and shall be filed within a

week from today.

4. The ld. counsel for the petitioner submits that the petitioner

had moved an application before the MM wherein he had prayed

that the 'Look Out Notice' issued against him be withdrawn.

5. The ld. counsel for the petitioner has argued before the ld.

MM that the charge sheet has not been filed, therefore, Section

24 of the Atomic Energy Act, 1962 is not applicable. He has

further submitted that the IO is not empowered by any law to

issue the 'Look Out Notice' and curtailing the movement and the

liberty of the petitioner.

6. The ld. MM has noted that Magistrate is a creature of a

statute, i.e., Cr.P.C., and there are no inherent powers vested in

the Magistrate. The present enactment, i.e., Cr.P.C., dos not

allow the Magistrate to interfere in the process of investigation.

As such in the absence of any provision empowering this court to

issue any directions to the IO, as prayed herein, the present

application can be held to be not maintainable. Accordingly, the

application was dismissed.

7. Ld. counsel for the petitioner submits that the petitioner is

booked under Section 24 of the Atomic Energy Act, 1962 and

the total punishment may extend to 5 years or with fine or with

both. Further, submits that under Section 24 of the Atomic

Energy Act, 1962, only the offences and the penalties are

prescribed. Further submits that violations of the sections

mentioned herein, i.e., Section 14,17 & 18, are not applicable to

the petitioner, therefore, he cannot be punished under Section 24

of the Atomic Energy Act, 1962.

8. He further submits that the 'Gama Cell Machine' was given

by the Canadian Government to the Indian Government in 1969,

without imposing any condition as to how it shall be disposed of.

9. Ld. counsel for the petitioner further submits that a

committee of 5 persons consisting of HOD from Department of

Chemistry and Zoology and 3 senior Professors was constituted

by the Vice Chancellor of Delhi University. Around 400 plus items

were to be disposed of including this machine. Mrs. Rita Kakkar,

Professor of Physical Chemistry, Department of Chemistry has

sent the list of scrap, wherein, this machine was also one of the

item. The said Professor/Rita Kakkar came to the conclusion that

these items are un-serviceable/obsolete items/equipments for

auction purposes. Accordingly, Smt. Rita Kakkar sent a list dated

08.02.2010 of scrap items, including the 'Gamma Cell Machine'.

10. Thereafter, one committee for disposal was constituted

wherein, two more members one from Engineering Department

and another from Internal Audit Department, were also added.

Thereafter, the Vice Chancellor of the University has also

approved the same. Thereafter, the said Committee disposed of

those items in auction, after completing the due formalities, in

the month of February, 2010.

11. Further it is stated that an information was received from

IG/Security, Department of Atomic Energy, Mumbai about

suspected radioactive emissions from shop No.D2/32 Mayapuri

Ph-II, New Delhi. Officers from Atomic Energy Regulatory Board

and other agencies visited the said shop and asked police officials

to cordon off the surrounding area as they noticed radioactive

radiation present in and around the shop.

12. During local enquiry at the spot, it was revealed that the

four workers who were working at the shop, i.e., D2/32, Mayapuri,

Phase-II were suffering from suspected radioactive radiation.

They were sent for medical examination at Deen Dayal Upadhyay

Hospital, Hari Nagar, Delhi and were admitted there and

subsequently shifted to All India Institute of Medical Science.

13. Accordingly, a case vide FIR No.31/10 under Section 337

dated 08.04.2010 was registered at PS Mayapuri, after

confirmation about the presence of radioactivity in an around the

said shop corroborated by the medical reports of the victims. The

persons who were affected with radioactive radiations were 8 in

number.

14. It is further stated that during the treatment at AIIMS, one of

the eight victims, namely, Rajender Prasad died on 26.04.2010

and, therefore, Section 304-A of the IPC was added in the case.

Other victims were discharged from hospital after treatment.

15. During investigation, it was found that one Gamma Cell

Machine was auctioned by the Delhi University in February, 2010

to Harcharan Singh Bhola, a scrap dealer in Mayapuri scrap

market. During the process of dismantling of Gamma Cell at one

of the shop in Mayapuri radioactive sources were exposed and

radiations so emitted started affecting human beings.

16. It was further found that the equipment of Gamma Cell

was kept in the room of Delhi University, which was given by the

Government of Canada in 1969 for education purposes. The said

machine, before auction, was under the supervision of Mrs. Rita

Kakkar, Professor of Physical Chemistry, Department of

Chemistry, Delhi University. In response to the letter by Prof. V.S.

Parmar, HOD Chemistry to identify un-serviceable/obsolete

items/equipments for auction purposes, Smt. Rita Kakkar sent a

list of scrap items, including Gamma Cell.

17. The Investigating Officer has mentioned in the status report,

which is on record, that after the process of auction was

completed and after due formalities the scrap items were allowed

to be removed by the successful bidder. Part of scrap items, of

Gamma Cell was brought in the area of PS Mayapuri, by the

scrap dealer of Mayapuri, through the original bidder.

18. During investigation it was found that there is sufficient

evidence against all the accused persons including the petitioner.

Further, it is mentioned in the status report by the IO that it was

a rare of the rarest case in India as well as, among the limited

nuclear disaster case, in the world.

19. Further mentioned, it certainly admire the capability of the

applicant in his field, which is evident from the contents of his

application, he had represented India in the topmost countries of

the world. But it certainly does not expunge his role in the

present case. His little ignorance turned into a disaster which

created a havoc, ended with one life and infirmity of seven others

through out.

20. Further he has justified his look out notice stating that the

petitioner may leave the country and get asylum in some of the

countries of the world who may take the advantage of his

capability in the interest of the growth of their own nation.

Admittedly, his whole family consisting of his wife, one son, one

daughter-in-law and one daughter, all are citizens of U.S.A.

21. Ld. APP for the State submits that the charge sheet will be

ready within a week and would be filed in the Court within 15

days. If the look out notice is withdrawn, then he may leave the

country and they have all apprehension that he will not return

back.

22. Ld. counsel for the petitioner submits that till date the

petitioner is a Professor in the University of Delhi and all his

service benefits are lying with the University. He has an ancestral

house in Rani Bagh, Delhi and he is ready to abide by the

conditions imposed by the Court.

23. I note, yesterday, i.e., 08.08.2011, the petitioner was

present in the Court on a wheel chair and he was in a very bad

condition being not well. He is undergoing treatment for various

ailments as mentioned in the discharge summery dated

21.05.2011 of Medanta, the Medi City, Gurgaon.

24. Ld. counsel for the petitioner has relied upon the judgment

of this Court in the case of Enforcement Directorate vs. Nemi

Chand Jain @ Chandraswami, 148 (2008) DLT 277 wherein

this Court has observed as under:-

"24. It is submitted that the respondent has been proceeded against under Section 8(1) read with Section 56 of the FERA and the punishment prescribed for such an offence if proved is a minimum of 6 months extended up to 7 years. Relying on the judgments of Gopal Rams case (supra) and Feroze Khatoons case (supra),the learned Counsel for the respondent states that the liberal rule of granting permission to remain absent from court at the time of hearing would apply since the

respondents case would fall not within the purview of long imprisonment.

25. As already stated that the right to travel abroad can only be curtailed under the Passports Act, 1967 (in short the said Act) under Section 6(2)(f) read with Sections 10 and 11 of the said Act.

26. It is the case of the respondent that the respondent has been granted permission to abroad on earlier occasions during (1987 to 1995) the pendency of investigations of more serious offences and had ultimately got acquitted in those matters and that the FERA matters have been pending in the Department since 1982 when he was given such permission. In so far as the respondent being not allowed to go abroad in 1998 is concerned, the learned senior counsel pleaded that at that time criminal proceedings were pending against the respondent in Lakhu Bhai Pathaks case instituted by the CBI but the respondent has been acquitted in the said case and hence, the decision of the Supreme Court has become otiose.

25. Ld. counsel for the petitioner has also relied upon the

judgment of this Court in the case of Nemi Chand Jain @

Chandraswami vs. Union of India and Ors., 146 (2008) DLT

641 wherein this Court has observed as under:-

"7. I consider that if any investigating agency investigating a crime considers that presence of any suspect was necessary within India and he should not be allowed to leave the country, the

investigating agency should request the State/Central Government for passing an appropriate order under the Appropriate provisions of law, for putting restrictions on the movement of the person. If investigation of a case continues for years together, without an iota of evidences having been collected, the personal liberty of a person cannot be jeopardized only on the ground of investigation being continued. Had there been any additional evidence collected by MDMA or CBI in last 9 years, CBI would have filed additional chargesheet before the Court concerned."

26. Ld. counsel for the petitioner submits that the situation in

present case is of more emergent in nature being the petitioner

unwell and he wants to spend some time with his family.

27. The ld. APP for the State submits that in the Nemi Chand

Jain's case (supra) in addition to violation of FERA and other

white color crimes were committed and it took out 9 years to file

the supplementary charge sheet. In that situation Nemi Chand

Jain was allowed to go abroad.

28. Admittedly, FIR in this case was lodged on 08.04.2010 and

till date the charge sheet is not ready, therefore, not filed in the

court.

29. Admittedly, the petitioner is highly reputed in his field. The

Gamma Machine though received in 1969 and for the last more

than 20 years, was lying without any use and the University

authorities wake up only in the year 2010, when some new

machines were to be procured.

30. No doubt, the petitioner is in a very bad medical condition.

Even otherwise, the liberty of any person cannot be curtailed to

move around the country or even to go abroad. He is not a

person who has no roots in the India and will not come back to

India, if he goes for medical treatment or to spend some time

with his family at the last juncture of his life.

31. Repeatedly, I asked the IO, who is personally present in the

Court, about the manner in which the Gamma Cell Machine was

to be disposed of. He has no reply. He stated that they were

supposed to take permission from the Atomic Energy Regulatory

Board under the Rules which are framed in the year 2004.

Further submits, petitioner is no more required in the

investigation. He was not arrested as nothing to be recovered.

32. Though this is not the stage to go in depth whether the

petitioner has committed any offence under any of the provisions

of the law enforceable as on date, since the charge sheet has not

been filed in the Court, as investigation is going on.

33. Keeping in view the above discussion and the health

condition of the petitioner, the order dated 28.07.2011 passed by

the learned MM is set aside.

34. The IO is directed to withdraw the look out notice within two

days.

35. The petitioner shall abide by the following conditions:

(i) Money lying with the University of Delhi, where the petitioner

is serving, shall not be released in case if he does not join the

trial;

(ii) Third party interest shall not be created in the ancestral

property of the petitioner bearing No. WZ 1039, Rani Bagh, New

Delhi qua his share, without the permission of the court or till the

disposal of the trial, whichever is earlier.

(iii) The petitioner shall be present as and when called by the

trial court.

36. Crl. Rev. P. No.355/2011 stands allowed in the aforesaid

terms.

37. Dasti under the signature of the Court Master.

SURESH KAIT, J

AUGUST 09, 2011 RS