IN THE COURT OF CHIEF METROPOLITAN MAGISTRATE

SOUTH DISTRICT, SAKET COURTS, DELHI

CR Case No. 5730 of 2021

IN THE MATTER OF:-

STATE (NCT OF DELHI) PROSECUTION
Vs.

MOHAN KUMAR JHA & ORS. ACCUSED

FIR NO. 70/2021

DATED:- 23/4/2021
SECTIONS 3&7 OF THE ESSENTIAL
COMMODITIES ACT, SECTION 3
OF EPIDEMIC DISEASES ACT
SECTIONS 420, 188, 120(B) & 34
INDIAN PANEL CODE
CRIME BRANCH SOUTH
DISTRICT SOUTH
APPREHENDED ON 22.04.2021
ARREST SHOWN ON 25.04.2021
BAIL GRANTED ON 16.11.2021
RELEASED ON 20.11.2021

WRITTEN ARGUMENTS SEEKING DISCHARGE OF

ACCUSED – PUSHKAR PAKHALE

THE APPLICANT MOST RESPECTFULLY SUBMITS AS UNDER:-

1 That it is alleged that the Accused Pushkar was

apprehended in the intervening night of 22/23.04.2021
from Gurugram and brought to the office of ISC, Crime
Branch and was released after interrogation. As a matter
of fact and record, in the present proceedings, the
investigating agency has nowhere contended/admitted
 that the Applicant/Accused was apprehended in the
intervening night of 22/23.04.2021 even before the
Courts below when reply to the bail applications were
filed. This contention is only for the purpose of
protecting the investigating agency from the rigors of
illegal detention contended by the Applicant/Accused all
throughout. Hence the said story of Applicant/Accused
being apprehended even before the arrest on 25.04.2021
is required to be completely overlooked.
2 The Accused submits that, it is the case of investigating
agency/prosecution that the Accused had purchased the
injections at the rate of Rs.10,000 (per injection) and
sold further at the rate of Rs.15,000 (per injection).This
case of the prosecution has been specifically mentioned
in the earlier replies filed in the bail application before
the Courts below however, conspicuously, the first part
of purchase of the injections by the Applicant/Accused
is absent in the present status report.
3 The Accused submits that, irrespective to the above
contentions, it is submitted that the entire Charge Sheet
or Status Report does not reveal that the instant Accused
was in any manner aware about the injections being fake
or spurious. Similarly, the Applicant/Accused has not
been booked for any offence punishable under section
272, 273, 274, 275, 276 of Indian Penal Code, 1860
(IPC) nor any offence punishable under relevant
provisions of Food Safety and Standards Act or Drugs
and Cosmetics Act. Even statement of the so-called
witness named Mr Vinod Kumar does not reveal of any
 reaction to persons who were administered the said
alleged fake injection; even assuming that the same were
purchased from the Applicant/Accused. It is not the case
of the prosecution that said injections were purchased by
the said witness/ person from the instant
Applicant/Accused.
4 That upon perusal of Charge Sheet and Status Report, it
is amply clear that Applicant/Pushkar has no relation
with the manufacture or labelling or packaging of the
alleged spurious drugs. There is no material to suggest
that Accused is involved in the manufacture of alleged
spurious or fake drugs. In fact it is the specific stand
taken uniformly by Applicant/Pushkar, that being
purchaser of spurious drugs without possessing any
knowledge of alleged drugs being spurious, fake and
non-genuine. Therefore, Applicant/Accused cannot be
made an Accused and tried for the alleged offence and
thus he is entitled for bail as prayed for in the present
case.
5 The Accused submits that, even on perusal of the What’s
App chats between Applicant/Accused and other co-
accused, it would be amply clear that the said
conversation does not spell any awareness of the
Applicant/Accused about the injections being fake.
6 That again it is pertinent to mention here on 23.4.2021,
the concerned Police machinery started demanding Rs.
20,00,000/- for letting off applicant/Pushkar Pakhale &
Rajesh Indulkar. That the Police machinery on
23.4.2021 took only the applicant/Pushkar Pakhale back
 to Room No. 402, Lemon Tree Premiun-II Hotel,
Gurugram and there from locker inside cup-board of the
said room, cash amount of Rs. 3,65,000/-was taken out,
out of which Rs.15000/- was handed over to Pushkar
Pakhale for clearing hotel bill, whereas Rs.3,50,000/-
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
Pushkar Pakhale and Rajesh Indulkar 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.20,00,000/- for letting of Pushkar Pakhale
and Rajesh Indulkar. That with utmost honesty &
accountability it is clarified that Pushkar Pakhale and
Rajesh Indulkar were in touch with Mohan Kumar Jha
regarding procurement of masks & medical hand gloves
as well as genuine vials of Remdesivir injections.
7 That it is pertinent to mention here the applicant Pushkar
Pakhale is not absolutely aware of (i) Manish Goyal; (ii)
Aditya Gautam; (iii) Vatan Kumar Saini; (iv) Sadhana
Sharma etc. That the applicant is absolutely not aware of
these 4 persons and never met them at any point of time.
 That on 23.4.2021, when Applicant’s brother namely
Pratik Pakhale came to Delhi and rushed to Crime
Branch Police Station at Chanakyapuri, 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, Pratik Pakhale had
to borrow the amount from one Pushkar Pakhale’s friend
residing in Delhi, and he then paid additional
Rs.2,00,000/- to Police machinery at Crime Branch
Police Station, Chanakyapuri.
8 That it is pertinent to mention thereafter, on 24.4.2021
Rajesh Indulkar was freed from illegal detention of
Crime Branch Police Station, Chanakyapuri, New Delhi.
That here the question arises, if Pushkar Pakhale &
Rajesh Indulkar were together and were picked up on
22.4.2021 (at about 10:30 pm) from Room No.402,
Lemon Tree Premium-II Hotel, Gurugram, then very
fact why that Rajesh Indulkar was freed (that too after
illegal detention for 48 hours). It is again pertinent to
mention here that if Rajesh Indulkar was freed then
similarly placed Pushkar Pakhale too ought to have been
freed, applying doctrine of parity. But, treating Pushkar
Pakhale as milking cow, from whom so far
Rs.5,50,000/- has been extracted as an illegal
gratification for showing favour while discharging
public duties. Thatthe police machinery started insisting
that entire demand of Rs.20,00,000/-should be complied,
 otherwise Pushkar Pakhale shall be fixed in illegal
racket of COVIPRI i.e. Remdesivir injections.
9 That it is shown by the Police that Manish Goyal with 6
Remdesivir injections and Pushkar Pakhale with 6
Remdesivir injections were arrested at Yamuna Vihar,
New Delhi is absolutely wrong and with utmost
accountability & honesty it is submitted that Pushkar
Pakhale never knew i) Manish Goyal; b) Aditya
Gautam; iii) Vatan Kumar Saini; iv) Sadhana Sharma.
Further, Pushkar Pakhale was never in possession of 6
vials of COVIPRI i.e. Remdesivir injections and he was
not at all with Manish Goyal at Yamuna Vihar, New
Delhi, on 25/26.4.2021. Investigation machinery has
created completely false record.
10 That the applicant had never been to Kotdwar,
Uttarakhand to meet Vatan Kumar Saini or Aditya
Gautam at any point of time.
11 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.
12 That no independent witness was present during the time
of arrest of the Accused and the guidelines of arrest, as
laid down by the Supreme Court in Arnesh Kumar v.
State of Bihar, (2014) 8 SCC 273, were not followed.
They further submit that the petitioners are mainly
charged with the offences punishable under Sections
420/188/120B/34 IPC and Sections 3/7 of the Essential
Commodities Act and Section 3 of the Epidemic Disease
Act. It is further stated offences under Sections 468 and
471 IPC were added later on.
13 That there is no relation of present Accused in
manufacture or labelling or packaging of fake injections
and even the seized injections. It was under good-faith
Accused had purchased the injections and he deals in
medical equipment and thus attempted to strike a deal in
selling genuine Injections purchased in good-faith.
There is no connection of present Accused with other
accused persons and WhatsApp chats only links the
availability of injections which were purchased by
Accused and nothing relates to illegal or fake
manufacture or illegal marketing of the same.
14 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
“Yogeshwar Medical Agencies” at Chalisgaon, District
Jalgaon, Maharashtra. Applicant is carrying on the
business of procuring medical gloves and supplying the
same to authorized dealers in Mumbai. Since Applicant
 is pharmacist and his family operates licensed
Yogeshwar Medical Agency, therefore Applicant came
to Delhi for placing certain orders of medical hand
gloves. It is further clarified that 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.
15 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 “M/s. Yogeshwar Medical
Agencies”. Therefore, neither section 3 of Epidemic
Diseases Act, 1987 not section 188 of IPC are attracted
to the facts of the present case.
16 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.
17 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.
18 That it is shown by the Police that Manish Goyal with 6
Remdesivir injections and Pushkar Pakhale with 6
Remdesivir injections were arrested at Yamuna Vihar,
New Delhi is apparently false and with utmost
accountability & honesty it is submitted that Pushkar
Pakhale never knew i) Manish Goyal; b) Aditya
Gautam; iii) Vatan Kumar Saini; iv) Sadhana Sharma.
Further, Pushkar Pakhale was never in possession of 6
vials of COVIPRI i.e. Remdesivir injections and he was
not at all with Manish Goyal at Yamuna Vihar, New
Delhi, on 25/26.4.2021. Investigation machinery has
created completely false record.
19 That it is beyond context and it is false to suggest that
222 injections are recovered at the instance of
Accused/Applicant, there is no such disclosure or
material available and all other Accused persons are not
known to present Accused/Applicant.
20 That the object of providing an opportunity to the
accused of making submissions as envisaged in Section
227 of the Cr.P.C., is to enable the court to decide
whether it is necessary to proceed to conduct the trial. If
the materials produced by the accused even at that early
 stage would clinch the issue, why should the court shut
it out saying that such documents need be produced only
after wasting a lot more time in the name of trial
proceedings. It was further observed that there is nothing
in the Code which shrinks the scope of such audience to
oral arguments and, therefore, the trial court would be
within its power to consider even material which the
accused may produce at the stage contemplated in
Section.227 of the Code
21 That In Satish Mehra cases stated supra, the Hon‟ble
Apex Court also observed that; Under Section.239 of the
Code (which deals with trial of warrant cases on police
report). The Magistrate has to afford the prosecution and
the accused an opportunity of being heard besides
considering the police report and the documents sent
therewith. The Code enjoins on the Court to give
audience to the accused for deciding whether it is
necessary to proceed to the next Stage. It is a matter of
exercise of judicial mind. There is nothing in the code
which shrinks the scope of such audience to oral
arguments. If the accused succeeds in producing any
reliable material at that stage which might fatally affect
even the very sustainability of the case, it is unjust to
suggest that no such material shall be looked into by the
Court at that stage. Here the "ground" may be any valid
ground including insufficiency of evidence to prove
charge.
22 That the test to determine a prima-facie case depends
upon the facts of each case and in this regard it is neither
 feasible nor desirable to lay down a rule of universal
application. By and large, however, if two views are
equally possible and the Judge is satisfied that the
evidence produced before him gives rise to suspicion
only as distinguished from grave suspicion, he will be
fully within his right to discharge the accused. At this
stage, he is not to see as to whether the trial will end in
conviction or not. The broad test to be applied is
whether the materials on record, if un-rebutted, make a
conviction reasonably possible.
23 That word “ground” in the context is not a ground for
conviction, but a ground for putting the accused on trial.
The ground may be that the evidence produced is not
sufficient for the judge to proceed against the accused or
it may be that the Sessions Judge finds that the accused
cannot be proceeded with as no sanction has been
obtained or that the prosecution is barred by limitation
or that he is precluded from holding the trial because of
a prior judgment of the High Court.
24 That it is settled principle of law that No one should be
punished for the offence which is not committed by him.
Therefore, the protection provided under Section 227
and 239 of CrPC are essential provisions of the law for
safeguarding a person against whom the false allegations
have been made. While considering and deciding the
application for discharge, the court is not to see whether
there is sufficient ground for conviction of the accused,
but it has to see whether the trial is sure to end in his
conviction. The purpose of Secs. 227 and 239 is to
 ensure that the Court should be satisfied that the
accusation is not frivolous and there is some material for
proceeding against him. The crystallized judicial view is
that the Court cannot conduct a deep roving enquiry into
the evidence at this stage.
25 It is humbly prayed that kindly Dischare the Accused
Pushkar Chandrakant Pakhale from the FIR No 70 of
2021, pending on the file of Chief Metropolitan
Magistrate (South), Saket Courts, Delhi, and further
discharge the Accused from the proceedings arising out
of charge sheet filed in FIR No 231 of 2021 registered as
CR Case No. 5730 of 2021 pending on the file of Chief
Metropolitan Magistrate (South), Saket Courts, Delhi.

NEW DELHI
07.11.2024

(RAKESH K. SHARMA
SANDEEP SUDHAKAR DESHMUKH
& NISHANT SHARMA)
Enrolment No. D/412/1983, MAH/2598/2004 & D/1877/2017
Address:- 142, Tower -10, Supreme Enclave,
Mayur Vihar Phase-I, Delhi-91
Phone No. 9811018549
Email:- [email protected]