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

#NavneetKalra #OxygenConcentrator

Hearing to take place before Justice Subramonium Prasad shortly.

Hearing begins.

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.

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

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

report by @aditi2118

#NavneetKalra #DelhiHighCourt

Hearing to resume shortly.

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

ASG SV Raju to appear for Prosecution.

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

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.

Hearing to start in 10 mins.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 3 gives scheme of the Act.. : Singhvi reads.
The word order is a statutory order.. : Singhvi

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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.

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

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

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

You can't do criminality on ambiguity: Singhvi

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

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

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

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

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

I will now come to bail considerations : Singhvi

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

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

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

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

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

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

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

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

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

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

ASG Raju begins.

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

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

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

I will give material to court in sealed cover : Raju

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

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

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

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

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

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

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

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


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