Sarabjeet Singh Mokha vs The State Of Madhya Pradesh
2021 Latest Caselaw 8351 MP

         1                                          M.Cr.C. No.56477/2021


   The High Court of Madhya Pradesh: Bench at Indore
             SINGLE BENCH: JUSTICE SUJOY PAUL
                           M.Cr.C. No.56477/2021
                          Sarabjeet Singh Mokha
                                     Vs.
                          State of Madhya Pradesh
        Shri Manish Dutt, learned Sr.Counsel with Shri Pankaj Dubey
and Shri Rakesh Shukla, learned counsel for the applicant.
        Shri Aditya Garg, learned G.A. for the respondent / State.
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                    Whether approved for reporting: NO
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                                   ORDER

(Passed on 07.12.2021)

This is the first application filed by the applicant under Section 439 of the Code of Criminal Procedure, 1973 for grant of bail in connection with Crime No.252/2021 registered at Police Station - Omti, Distt. Jabalpur for the offences registered under Sections 274, 275, 308, 420, 120-B, 467, 468, 471, 201, 34, 304 of the IPC, Sec.53 of Disaster Management Act, 2005, u/S.3 of Epidemic Diseases Act, 1897, Section 65 of Information Technology Act and 05/13 of Madhya Pradesh Drugs Control Act. The applicant is in custody since 26/5/2021.

02. The story of prosecution is that the applicant has received fake Remdesivir injections in conspiracy with the manufacturers stationed at Morvi District of Gujarat and has utilised the same on the patients admitted in City Hospital, Jabalpur. When police noticed it, the injections were destroyed which amounts to destroying the evidence. The City Hospital is having capacity of 300 beds. It treated more than 300 Covid patients. During the Covid crisis, there was shortage of Remdesivir injections. The regular supplier of Remdesivir

injections to City Hospital was Bhagwati Pharma. The co-accused Sapan Jain, Proprietor of Bhagwati Pharma was requested to supply the injections by the Incharge of Medical Store of City Hospital namely Devesh Chorasia. The applicant never contacted Sapan Jain or anyone else who was introduced by him to Devesh Chorasia. There was no question of buying fake injections when sizable number of patients were getting treatment in the hospital.

03. Shri Manish Dutt, learned Sr.Counsel submits that the fake Remdesivir injections were supplied to the City Hospital is the case put up in challan. However, the challan papers do not contain any iota of evidence which shows any mens rea at any point of time showing applicant's participation or contact with the people of Gujarat who were involved in manufacturing the fake Remdesivir injections.

04. Kaushal Vora, Punit Shah and Nagesh @ Naguji are the main persons as per prosecution story who were involved in manufacturing the fake injections. The injections were supplied through another co- accused namely Sunil Mishra. In absence of any contact whatsoever between applicant and other persons, the question of conspiracy does not arise.

05. The applicant due to heart ailment coupled with Covid 19 infection was hospitalised on 3/5/2021. The applicant underwent an angioplasty which is clear from perusal of documents cumulatively filed as Annexure A/2. The applicant was arrested on 11/5/2021 in Crime No.252/2021. During entire investigation, nothing is seized or recovered from present applicant.

06. The wife of applicant namely Jasmeet Kaur Mokha, son of applicant Harkaran Singh Mokha and Manager of Hospital Sonia Shukul have been granted bail by this Court in M.Cr.C. No.39393/2021, 39409/2021 and 42511/2021 respectively (Annexure A/9 and A/10). This Court has also granted bail to the middle man

Rakesh Sharma who was the person between supplier of Gujarat and alleged supplier to the City Hospital. The bail order dated 17/8/2021 passed in M.Cr.C. No.36262/2021 is filed as Annexure A/11. It is further urged that this Court has granted bail to several persons. The bail application numbers are reproduced in M.Cr.C. No.40132/21 dated 8/9/2021 (Annexure A/12). The Supreme Court recently granted bail to Sarvar Khan pertaining to sale of fake Remdesivir injections by order dated 25/10/2021 (Annexure A/13).

07. The applicant was also detained under the National Security Act, 1980 and said order got stamp of approval by this Court. However, the said order of this Court was interfered with by Supreme Court and detention order has been quashed.

08. The applicant has no criminal record. Learned Sr.Counsel by taking this Court to the statement of Sapan Jain and Kshitij Rai recorded u/S.161 Cr.P.C contended that no one has stated that applicant was having any contact with the manufacturers of fake injections. There is no evidence whatsoever to establish that applicant 'knowingly' obtained fake Remdesivir injections. There is no element of 'agreement' between the applicant and the manufacturers of injections. Thus, necessary ingredients for invoking Section 274 and 275 of IPC are totally absent. In other words, it is urged that applicant was an end user. In absence of showing any 'agreement' with the manufacturer and end user regarding use of fake injections, the applicant cannot be held guilty.

09. The statement of Sapan Jain recorded u/S.161 of Cr.P.C is relied upon to contend that on 7/5/2021 only he came to know that injections were fake. For this purpose, many other statements were also relied upon.

10. Another limb of argument of learned Sr.Counsel for applicant is that as per statement of servants of applicant Avdhesh and another,

the injections were destroyed under the instructions of applicant and his wife. The said incident had taken place in the premises of applicant. Shri Dutt, learned Sr.Counsel argued that in absence of showing any live link between the manufacturer and the applicant and in absence of establishing that applicant was aware that injections are fake, the offence u/Ss.274 and 275 of IPC are not attracted. Shri Datt submits that if story of prosecution regarding destroying the injections in the presence of applicant and on his instructions is accepted as such for the sake of argument (without admitting the same) at best an offence u/S.201 of IPC is committed by the applicant. The said offence is a bailable offence. Apart from this, there is nothing which can be a reason to deny bail.

11. The statement of two more employees namely Saifuddin and Arup recorded u/S.161 of Cr.P.C during further investigation were highlighted to show that even these statements do not throw any light to attract Section 274 and 275 of IPC. At best, their statements will make out a case of disappearance of evidence on the part of applicant which again will attract Sec.201 of IPC only.

12. The applicant purchased the injections under a bona-fide belief that the same are genuine. The applicant is arraigned for committing similar offence in another case at Gujarat. The Sessions Court has granted him bail. Thus, applicant may be enlarged on bail. He will not tamper the evidence or influence the witnesses. The incriminating material even otherwise has already been seized by the prosecution.

13. Per contra, Shri Aditya Garg, learned G.A for the State submits that the fake injections were having a name of manufacturer i.e. 'Mylan'. The police by supplying batch numbers of injections enquired from 'Mylan' whether injections are genuine or not. The Mylan company informed that batch number are not tallying and,

therefore, injections cannot be said to be real/genuine injections.

14. It is submitted that the fake Remdesivir injections were recovered from applicant's wife. Applicant was hospitalised because of Covid and heart related problems. In absence of applicant, the recovery so made from his wife can be treated to be a recovery of material from applicant himself. The applicant was the Director of City Hospital whereas his wife, Sonia Shukul and Devesh Chorasia were only facilitators. On 28/4/2021 the statement of Sonia Shukul was recorded which shows that she and present applicant came to know on 28/4/2021 that injections are fake. Thus, story of applicant that he came to know about the same only on 7/5/2021 is untrustworthy. 17 patients died in the hospital because of use of fake injections.

15. In the bills also, there was a manipulation at the instance of applicant which is clear from 'audit trailed document'. At the cost of repetition, letter of Mylan dated 4/8/2021 is relied upon to submit that fake injections were not product of the said company. He has placed reliance on Masroor Vs. State of Uttar Pradesh & another (2009) 14 SCC (2009) 14 SCC 286.

16. In rejoinder submissions, Shri Dutt submits that the document which is projected as statement of Sonia Shukul is in fact a memorandum prepared u/S.27 of the Evidence Act. The said memorandum has no evidenciary value against the applicant.

17. It is urged that the Chief Medical officer issued the licence in the name of applicant's wife to run the hospital. Applicant's wife has already got bail. There is no cogent and substantive material to arraign the applicant. The statement of Saifuddin is a hearsay evidence which has no evidenciary value.

18. Shri Dutt, learned Sr.counsel by taking this Court to the invoice urged that hospital has paid full amount while purchasing

Remdesivir injections. Had it been fake injections and known to the hospital, there was no occasion for paying the full amount. However, this argument was denied by Shri Aditya Garg.

19. In nutshell, it is submitted that there is no element of 'conspiracy' or 'meeting of mind' or 'agreement' with applicant and manufacturers. Nothing is recovered from the applicant. At best offence u/S.201 of IPC which is bailable is attracted. The Gujarat Court has already granted bail. In support of these submissions reliance is placed on Jayendra Saraswathi Swamigal Vs. State of T.N. (2005) 2 SCC 13, Sanjay Chandra Vs. Central Bureau of Investigation (2012) 1 SCC 40, Dipakbhai Jagdishchandra Patel Vs. State of Gujarat and another (2019) 16 SCC 547, P.Chidambaram Vs. Central Bureau of Investigation (2020) 13 SCC 337, Arnab Manoranjan Goswami Vs. State of Maharashtra & Ors (2021) 2 SCC 427 and order of High Court passed in M.Cr.C. No.2643/2015 in the matter of Pratap Singh Vs. State of MP dated 14/7/2015.

20. The parties confined their argument to the extent indicated above.

21. I have heard the parties at length and perused the case diary.

22. Indisputably the applicant's wife, son and Sonia Shukul are also co-accused. Despite recovery of injections from applicant's wife the High Court has granted her bail. The Sessions Court Morvi (Gujarat) in CMA No.9/2021 has recorded as under:-

"4. Taking into consideration of the affidavit submitted by the T.K official with the number 05 on behalf of the Government, the Learned Public Prosecutor, has argued that the applicant for this matter is the owner of City Civil Hospital and Research Centre Jabalpur, co-accused of said Hospital, co-accused Dilip Chorasia works in the medical department and the co-accused of this crime is Sapan S/o Shri Surendra Kumar Jain from Jabalpur is the wholesaler of medical related foods and medicines of Bhagwati Pharma in Jabalpur Madhya Pradesh and he himself trades in permanent medicines and surgical goods at the applicant's City Civil Hospital and Research Centre in Jabalpur so that the present

applicant/accused and Devesh Chorasia S/o Dilip Chorasia are in contact so due to increasing demand of Remdesivir Injection, the applicant had ordered 500 units of Remdesivir injections through co-

accused Devesh S/o Dilip Chorasia. Despite knowing that it is a duplicate injection co-accused Sunil Mishra from that total no. of 465 duplicate Remdesivir injections were given to co-accused Devesh Chorasia and despite knowing that these were duplicate injections total no. of 225 injections were given to the Doctors on duty in his hospital for treatment and illegal financial benefits were obtained and a total no. of 225 injections were destroyed when the crime was declared. And the applicant of this matter committed a serious crime by helping in this said crime. Also, the chargesheet of the crime against the applicant of the matter has been done and the co-accused of this matter is yet to be arrest. If the present applicant is released on bail under such circumstances, the accused will not be present during the trial, there is a possibility of fleeing, as well as the complainant intimidating witnesses, tampering with evidence, and committing such serious offences again. There fore, considering the seriousness of the crime, the applicant has not been released on bail, such presentation is presented by the learned public prosecutor.

5. In this matter the representation of both the parties were taken into consideration. Considering the facts of the affidavit of the investigating officer submitted in his case from no.04, the applicant for this matter is the owner of the accused City Civil Hospital and Research Centre Jabalpur. And they have ordered 500 piece of Remdesivir Injections through co-accused Devesh S/o Dilip Chorasia who is working in the medical department of his hospital. So Sapan Jain has ordered 500 piece of duplicate Remdesivir injection from Co-accused Sunil Mishra and from that injections total no. of 465 duplicate Remdesivir injections had been given to co-accused Devesh S/o Dilip Chorasia and despite knowing that the injections are duplicate he had given treatment and illegally received the economic profit. And when crime was declared total 225 injections were destroyed, and stated the truth that by helping in prior in said crime he has committed a serious crime. However, in this case, the written statement from no.07 submitted by the applicant party in this matter with the list of documents alongwith the list of documentary evidence submitted with the number 08 and the invoice/bill in the documents alongwith the list should be taken into consideration. Whether the applicant/accused of this matter has obtained financial benefit by ordering total no.500 of duplicate Remdesivir injections through co-accused, cheating with infected patients of Corona, helping in crime and getting financial profit. As far as the evidence is concerned, at the present stage, apart from discussing the involvement of the applicant/accused in the offence or the merits and demerits of the case a well as the fact that the chargesheet of the said offence has been filed in the court here. The applicant is a permanent resident of the address mentioned above so there is reason to believe that if they are released on bail, they will not be able to escape anywhere and they will be present in the court on a regular basis during the trial. In view of all the above facts, in order to release the present

applicant/accused on certain conditions and appropriate amount of bail, the following final order is made in the interest of justice under the present bail application.

Order:

1. Applicant/accused Surabjeet Singh Manjeet Singh Mokha Age 55 years, Religion Hindu, Occupation- Business, resides at: 112, Panch Pedhi, South Lines, Jabalpur (Madhya Pradesh) At present the applicant for obtaining regular bail for the first time after chargesheet under section 439 o RCP Act for the crime Morbi City "B" Division Police Station "A" part G.R No.0934/2021 (sessions case no.67/2021) section 274, 275, 308, 420, 34, 120-B, 465, 467, 468, 469, 471, 304(b) of the Indian Penal Code and Section 3,7,11 of the Essential Act and Section 53 of the Disaster Management Act and section 27 of the Drug and Cosmetic Act, is approved on the following conditions.

2. The applicant/accused have to present a reliable and trustworthy, local bail and Rs.50,000/- (Fifty Thousand Only) to the court in the way that satisfy the conditions."

23. The applicant is a permanent resident of Jabalpur. There is nothing on record to suggest that applicant can flee from justice. Challan has already been filed. Custodial interrogation of applicant is no more required. The incriminating material has already been seized by the prosecution. There is nothing to suggest that applicant can influence or tamper the evidence. The bail can be cancelled if it is brought to the notice of this Court by filing appropriate application that applicant is influencing the witnesses.

24. In the judgments cited by learned Sr.Counsel for the applicant it was held that 'bail, not jail' is the general principle. If necessary ingredients for grant of bail are satisfied, bail should be granted. In my view, as noticed above, the necessary ingredients for grant of bail are indeed available. Hence, I deem it proper to enlarge the applicant on bail. Accordingly, the bail application is allowed.

25. The applicant Sarabjeet Singh Mokha is directed to be released on bail on his furnishing a personal bond in the sum of Rs.50,000/- (Rupees fifty thousand Only) with one solvent surety of the like amount to the satisfaction of the trial Court for his regular

appearance before the trial Court during trial with a condition that he shall remain present before the Court concerned during trial and shall also abide by the conditions enumerated under Section 437 (3) Criminal Procedure Code, 1973.

26. It is also observed that if the applicant is found to be involved in any criminal activities, after his release on bail, then the present bail order shall stand cancelled without further reference to the Court and the State / prosecution will be free to arrest the accused in the present case also. This order shall be effective till the end of the trial, however, in case of bail jump, it shall become ineffective. The applicant shall surrender his passport before trial court and not leave the country without express permission granted by the trial court.

c.c as per rules.

(SUJOY PAUL) JUDGE

vm

Digitally signed by VARGHESE MATHEW Date: 2021.12.09 11:55:50 -08'00'