Thread by @barandbench

#Breaking: Navneet Kalra has moved Delhi High Court against order denying him anticipatory bail in oxygen concentrator black marketing case.

#NavneetKalra #OxygenConcentrator

@DelhiPolice

Hearing to take place before Justice Subramonium Prasad shortly.

#NavneetKalra

Hearing begins.

#NavneetKalra

I have instructions to appear on behalf of Respondent. I don't have a copy: ASG SV Raju

Court says if the counter filed before trial court is enough it can start.

#NavneetKalra

If you feel something more is to be added, we can have it tomorrow: Court

Just look at the brief, we'll assemble at 7 pm : Court

We'll serve the copy : Senior Adv Vikas Pahwa for Navneet Kalra.

We'll re join at 7 pm : Court

#NavneetKalra

[BREAKING] Navneet Kalra moves Delhi High Court for anticipatory bail in oxygen concentrator black marketing case

report by @aditi2118

#NavneetKalra #DelhiHighCourt

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Hearing to resume shortly.

#DelhiHighCourt
#NavneetKalra

Senior Advocates Abhishek Manu Singhvi, Vikas Pahwa, Mohit Mathur on the screen.

#NavneetKalra

ASG SV Raju to appear for Prosecution.

@DelhiPolice

Justice Prasad joins.

SV Raju says his briefing laywers are not able to join because of max limit on participants.

Interns are requested to leave. We'll start in 10 mins. You've bombarded me with 500 pages : Court

#NavneetKalra

The question would be whether interim order for one day, two day: Court on why it decided to hear the case today itself.

No interim protection was deliver till date : Raju

Court says the hearing should go on for at least 5 hours.

#NavneetKalra

Hearing to start in 10 mins.

#NavneetKalra

Court master again makes a request that those who are not in the matter should leave.

There are 20-25 people whom I can identify are not part : Senior Adv Mohit Mathur.

He names certain media persons.

Is one person from media not enough: Court

Some people exit.

There are so many media people...if they can share : Mathur

Senior Adv Abhishek Manu Singhvi begins.

We will not repeat anything: Senior Adv Vikas Pahwa

#NavneetKalra

This is a classic case which shows that we have to get rid of compulsion to conform.. what media would want us to do : Singhvi

#NavneetKalra

This person is a victim of media.. he has been hounded and for what. He is neither an importer nor a manufacturer: Singhvi

#NavneetKalra

I happen to be in business.. I have full roots in society. My family has been running Dayal Opticals for decades..: Singhvi

#NavneetKalra

I'm selling oxygen concentrators under invoices with GST payment.. openly, to help.. I have done no hoarding. There is no order under Essential commodities Act: Singhvi

#NavneetKalra

I've purchased most of these from Matrix Cellular under invoices: Singhvi

Singhvi asks court to take a look at the purchase invoices.

How many were found at premises: Court

9 at Town Hall.. they were mainly for employees. 96 at Khan Chacha: Singhvi

#NavneetKalra

If you say you are neither importer nor manufacturers, why would you have 105 oxygen concentrators: Court

If they are drugs, do you have the ability to store them without a licence: Court

No licence is required unless there is an order .. : Singhvi

I'm not on EC Act. I'm on notification saying they are drugs and then they can be stored, sold by a proper licence : Court

#NavneetKalra

I don't know if there is violation of Drugs and Cosmetics Act... punishment is 10 years : Court

#NavneetKalra

This has not been the focus of Prosecution: Singhvi

Just think over it : Court

The charges are EC Act..: Singhvi

Till now primary focus is EC Act, prices.. it was only when matter came at 3 pm when it struck me : Court

Focus was on EC Act adn cheating. There is an order that gives window on 18 months to register: Singhvi

#NavneetKalra

Process of registering gives a window of 18 months and doesn't contemplate any coercive action in the meantime: Singhvi

#NavneetKalra

There is no mens rea. Nothing is hidden..there are people who needed oxygen. I'm charging. : Singhvi

#NavneetKalra

There is nothing clandestine. Money is paid by credit card: Singhvi as he shows an invoice.

Singhvi refers to a message from Delhi Police asking for oxygen concentrators.

That doesn't matter that you sold to police at same price ...it is neither here nor there : Court

It is that my intention is not clandestine: Singhvi

If it was to be sold, it was to be sold from Pharmaceutical shop: Court

#NavneetKalra

I'm not in business of medicines: Singhvi

These are moral questions. There has to be an obligation on me to sell at price X : Singhvi

#NavneetKalra

If there is a restriction, you have committed an offence: Court

There is nothing of that sort : Singhvi as it takes the court through Essential Commodities act (EC Act).

It requires you to designate a list of items but not every item is regulated: Singhvi

Regulation can be different.. all that is decided separately. This has nothing to do with scheduling. Which is absent in this case : Singhvi

#NavneetKalra

There is no oxygen concentrator in the schedule. Let's take it is "drugs".. : Singhvi

#NavneetKalra

Section 3 gives scheme of the Act.. : Singhvi reads.

The word order is a statutory order.. : Singhvi

#NavneetKalra

Regulation is of a wide variety of things.. (it is) once you've taken action in an order.. : Singhvi

Singhvi takes the court through the EC Act.

There is nothing of this kind ..a order.. that you are now criminalising.. : Singhvi as he refers to a govt communication asking sellers to give MRP of oxygen concentrators that they are selling.

Where is March 31, 2020 notification? It is the Notification under Drugs Price Control Order ..: Court

It is an office memorandum.. it is only asking for information.. what is limitation is only a non increase of not more than 10% in a year : Singhvi

Which means there is a price.. where is that : Court

#NavneetKalra

If a devise is a drug and devise would be controlled by this order and you can't sell more than 10%...govt is trying to call for MRP.. trying to regulate: Court

The direction to not increase above 10% has nothing to do with MRP: Singhvi

But there has to be an MRP: Court

#NavneetKalra

There is no fixation of MRP for oxygen concentrators. It has to be simple. This is the govt cap and he is selling above.. that's it: Singhvi

#NavneetKalra

Singhvi shows the court notification declaring medical devices as drugs.

I'm here trying to show negative... I'm showing every notification in the field : Singhvi

#NavneetKalra

So we are ad idem that drugs include devices and are covered by DPCO order and are covered by Essential Commodities? : Court

Just pause on the last sentence: Singhvi

#NavneetKalra

If drugs are devises and they are to included in the DPCO which is covered under Essential Commodities act, would oxygen concentrators not come under the Essential commodities Act : Court

#NavneetKalra

This is over at section 2 stage. You are not wrong in calling it essential...but it may not be regulated: Singhvi

#NavneetKalra

Please come to 2(t): Court

Court refers to National List of Essential Medicines.

Oxygen is a part..if it is essential and it is part of the schedule...would be an essential commodity? : Court

Are we falling in Essential Commodities or not? : Court

#NavneetKalra

If product comes... schedule is given and it is in the list.. and it comes in the DPCO, will it ipso facto be essential commodity: Court

#NavneetKalra

Essential Commodities part is over .. the court need not spend any time.. it is semantics.. my point is that when there is any violation, criminality can't flow in ambiguity: Singhvi

#NavneetKalra

Court has to be shown a violation of a statute ... The Act makes it clear..the legislative mandate is that it doens't matter if you are in a schedule. Actionable is the order... under section 3(1): Singhvi

#NavneetKalra

Unless an order is passed under sec 3(1)..that order will include things in 3(2).. until it is not passed, even essential commodities can't be regulated? : Court

Yes : Singhvi

#NavneetKalra

Merely calling me Essential Commodity doens't activate anything.. admittedly there is no order qua price or sale.. please show the order, I'm out of court : Singhvi

#NavneetKalra

Look at the bizzare situation.. if you are not in schedule, you can't pass an order. Once you are in schedule, you have to form an opinion to regulate it : Singhvi

#NavneetKalra

Section 7 is for violation of order under 3.. suppose it said scheduled item..it doens't say so fortunately.. my friend is prosecuting me for order which he is not able to produce: Singhvi

#NavneetKalra

Can they change the structure of 3(1)?.. unless they are complying with 3(1), what is the point of all this : Singhvi

#NavneetKalra

So the question is.. whether the OM is an order and if it fixed a price : Court

#NavneetKalra

Even assuming this is 3(1) order.. I'm strongly opposing it.. the order has to fix a price. Price is not of any label. It is a price that you are imposing : Singhvi

#NavneetKalra

It doens't apply to importer but leave that aside.. para 1 of the OM (communication) does not fix price : Singhvi

#NavneetKalra

A price fixation for criminal consequences is a very simple thing : Singhvi

#NavneetKalra

Price fixation notification doens't ask you for MRP. It is not consensual: Singhvi

#NavneetKalra

They say thou shall...this is not the language and yet to fix criminality.. : Singhvi

They should have closed the matter with one notification... I'm not complete lack of clarity: Singhvi

#NavneetKalra

I'm on*

We'll spill arguments to tomorrow to think over it : Court

Essential is meaningless unless you follow it with the order. It is not there.. section 7 operates only on section 3. This exact submission in the common FIR.. for all other co-accused, the following order is passed : Singhvi

Singhvi refers to the trial court order granting bail to co-accused.

I'm challenging that it can't be produced..it has to be a very clear order : Singhvi

#NavneetKalra

DPCO doesn't have oxygen. My lord is saying drugs may include it : Singhvi

Oxygen is included: Court

They said tell me how are you selling it for. I'll make sure none you sell it with increase of over 10%.. that's it : Singhvi

How much are you selling*

Attempt was made to ensure that sellers don't jump by 10%, says Singhvi

Court questions ASG Raju on the notifications.

I'll come to that on my turn : Raju

Whether for imported goods this order applies: Court

It applies. I'll answer: Raju

#NavneetKalra

Singhvi reads trial court order.

There is a 7/5/2021 order (on masks).. it doesn't apply to me : Singhvi

Ex post facto: Court

Here they clearly become wise because if Delhi HC division bench saying why are you not doing it : Singhvi

If I sell above my MRP is different from saying that I can't sell above Rs 10 : Singhvi

Is there a labelled MRP: Court

Yes : Singhvi

#NavneetKalra

MRP is by importer Matrix: Singhvi

So you are selling above MRP ? : Court

The case is that you are selling above a cap.. second is that I cheated.. section 420.. charge is not that I'm selling above labelled price : Singhvi

#NavneetKalra

They may show by implication .. : Singhvi

Charge set up is not that my MRP was Rs 10. That it couldn't be more than Rs 12 and that I'm selling at Rs 15 : Singhvi

#NavneetKalra

Court asks for the FIR.

Singhvi reads the trial court order.

Why would the High Court lament if there was an order.. excatly for this case. To plug the loophole: Singhvi

#NavneetKalra

Unless you find a person hoarding, you will stop the supply.. : Singhvi as he continues to read.

Everything is documentary.. I'll come to triple test : Singhvi

#NavneetKalra

Why is the court saying this if already there is a cap on criminality.. this order is May 6, one day after the FIR: Singhvi as he refers to an order passed by the Division Bench.

#NavneetKalra

In the order, Division Bench asked Central Government to examine fixing profit margin to imported oxygen concentrators.

Pahwa says there is another order by the Division Bench day before yesterday.

#NavneetKalra

It is May 12th. Yesterday. Most latest : Singhvi as he reads Delhi HC division bench order.

#NavneetKalra

Singhvi reads that the Amicus in the matter had opined that Central Government should cap the prices.

Division bench is contemporaneously opining that process (of price fixation) was initiated but it was left incomplete: Singhvi

#NavneetKalra

The issue is coming up on Monday before Division Bench : Pahwa

You can't do criminality on ambiguity: Singhvi

#NavneetKalra

The charge is you are selling it.. exorbitant, high.. : Singhvi

#NavneetKalra

Court goes through the FIR.

What was the MRP? : Court

Rs 69,999 : Singhvi

All machines were at 69,999? : Court

That is Matrix price.. the importer: Singhvi

There are varying prices.. it is well below 70k. 70k is the importer price.. no allegation of selling above ..no charge of you selling above the price set by Mr Raju : Singhvi

Price fixed is X, sale is Y and this is the invoice.. that is absent in the entire FIR : Singhvi

#NavneetKalra

The charge of sec 420.. at least two elements must be there. I induce you and you take my equipment.. 100s have purchased and 2-3 are making this charge: Singhvi

#NavneetKalra

Singhvi reads trial court order granting bail to co accused.

I've breached a contract...have you made out 420 against me? The trial court was not hearing Kalra but there is only breach of contract by Kalra at best: Singhvi

Is it 250 or 115 concentrators ? : Court

There are Matrix concentrators also : Singhvi

The importer has a farmhouse near my farmhouse.. it's my misfortune .. I may have made a mistake that in troubled times I would sell oxygen concentrators: Singhvi

#NavneetKalra

Does the court arrest me today expecting more to come? This is because.. press is baying for blood : Singhvi

#NavneetKalra

I will now come to bail considerations : Singhvi

#NavneetKalra

Trigger is order under section 3(1).. Surpreme Court says the same thing: Singhvi

#NavneetKalra

Singhvi reads the judgement.

By now the State would have placed the order five times if it existed : Singhvi

#NavneetKalra

High Courts have repeatedly held that under EC Act, it is bailable offence: Singhvi as he refers to Guwahati High Court judgement

#NavneetKalra

They have now brought Black Marketing Act..where you can even detained.. : Court

Detention law is under art 20-21 when you don't have ground under law : Singhvi

Singhvi refers to other High Court judgements.

I'm ending in 10 mins. I must deal with criminal law : Singhvi

Old is gold is Sibbia. Constitutional Bench: Singhvi

Anticipatory bail is a facet of liberty.. : Singhvi as he reads a judgement.

Ultimately, the supreme court will decide it..barring exceptional category such as national security, child sexual offences.. the test for bail has to be triple test : Singhvi

#NavneetKalra

Absent heinous category, triple test should apply, Singhvi says

With press across India baying for his blood, was I to co-operate without protection: Singhvi

#NavneetKalra

Singhvi refers to P Chidambaram judgement to further argue on anticipatory bail.

This is for the triple test. That is important: Singhvi

Other is Arnesh Kumar.. the test has to ve readiness and willingness. All these cases are serious cases : Singhvi

#NavneetKalra

It says notice prior to arrest .. that is why exception is para 9-10 : Court

#NavneetKalra

Singhvi refers to Susheel Agarwal.

Try and protect against perception and threat of arrest .. there is so much pressure on the police to arrest me : Singhvi

#NavneetKalra

I've made out a case for anticipatory bail : Singhvi

#NavneetKalra

I'm deeply obliged: Singhvi

I would like to add a few points: Pahwa

Two counsel is not proper.. you can tell Me Singhvi in rejoinder : Court

It will spill tomorrow.. you tell Dr Singhvi: Court

Let me begin today.. : ASG Raju

#NavneetKalra

ASG Raju begins.

#NavneetKalra

This is an extraordinary where anticipatory bail has to be rejected. This is classic case of black marketing. You can't exploit people at this time : Raju

#NavneetKalra

You can't decide anticipatory bail based on FIR .. here something very serious is found after FIR: Raju as he refers to a WHO finding

#NavneetKalra

We tested two concentrators.. inducement was that these are premium, German made... thse are Chinese, third grade concentrators : Raju

#NavneetKalra

I will give material to court in sealed cover : Raju

Court asks Raju if a note can be given to the opposite side.

#NavneetKalra

We will give to by Tuesday. Not tomorrow: Raju

Out of the seized concentrators, two were sent to lab.. we were shocked and horrified to find that these machines give output of 32%.. : Raju

He is not an importer. He's just a seller. Can you impute it to him that concentrator is of a particular property: Court

#NavneetKalra

You must test your machine.. we are still investigating. Whether he is in conspiracy with the importer.. I don't at this stage see any distinction between them. Importers machines are stored at his place : Raju

#NavneetKalra

You have made a false representation.. he admits that he used to send messages. Can you say I don't know if I'm selling a fan.. he sold it saying it is oxygen concentrator: Raju

#NavneetKalra

Even Standard of 82 of WHO is not there... persons are induced to buy machines that are useless. We are yet to investigate persons who bought the machines..we have to find where it has been sold.. if we find that even in one case a person died.. : Raju

#NavneetKalra

It can be 302, 304 IPC, .. 308 IPC.. our investigation should not be scuttled: Raju

#NavneetKalra

It will send wrong message to hoarders that a person who is the biggest black marketer was granted anticipatory bail on technical grounds... societal interest has to be taken into account : Raju

#NavneetKalra

May I continue tomorrow: Raju

Yes : Court

Gujarat High Court Bar Association has passed a resolution that they would not handle any case of black marketer : Raju

The label of black marketer makes on a convict..: Singhvi

When we finish tomorrow.. within the end of the day, a short note can be given : Singhvi

Hearing adjourned till 12 noon tomorrow.

If you say you are neither importer nor manufacturer, why would you have 105 oxygen concentrators? Delhi High Court asks Navneet Kalra

report by @aditi2118

#DelhiHighCourt #NavneetKalra
#OxygenConcentrators

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