MUDIT GUPTA & ORS. vs STATE OF NCT OF DELHI & ORS.

2024-06-29 Information

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order reserved on : 28 June 2024 Order pronounced on : 29 June 2024 + CRL.M.C. 4875/2024 & CRL. MA 18585/2024 MUDIT GUPTA & ORS. ….. Petitioners Through Ms. Rebecca John and Mr. Mohit Mathur, Sr. Advs. with Ms. Harshita Gulati, Mr. Siddarth Chopra, Mr. Pravir Singh, Mr. Arpit Singh, Mr. Ravi Chaudhary and Mr. Harsh Gautam, Advs. versus STATE OF NCT OF DELHI & ORS. ….. Respondents Through Mr. Laksh Khanna, APP for the State along with IO/SI Dhananjay Dubey PS Special Cell, IFSO, Dwarka. + BAIL APPLN. 2178/2024 & CRL. M(BAIL) 1048/2024 SANDEEP GUPTA ….. Petitioner Through Mr. Mohit Mathur, Sr. Adv. with Ms. Harshita Gulati, Mr. Siddarth Chopra, Mr. Pravir Singh, Mr. Arpit Singh, Mr. Ravi Chaudhary and Mr. Harsh Gautam, Advs. versus STATE OF NCT OF DELHI & ORS. ….. Respondents Through Mr. Laksh Khanna, APP for the State along with IO/SI Dhanjay Dubey PS Special Cell.
CORAM: HON’BLE MR. JUSTICE DHARMESH SHARMA O R D E R % 24.06.2024 CRL.M.C. 4875/2024 and CRL.M.A. 18585/2024 (Stay) BAIL APPLN. 2178/2024 and CRL.M (BAIL) 1048/2024
1. The above-noted petitions filed by the parties emanate from the investigation being carried out in FIR1 No. 224/2024 dated 31.05.2024 in respect offence punishable under Section 420/120B of the IPC2 registered at Special Cell, IFSO3/CCU4, Dwarka, New Delhi, (hereinafter referred as the Special Cell, IFSO, Dwarka), which raise somewhat similar question of law and facts.

2. CRL. M.C. 4875/2024 is preferred under Section 482 of the Cr.P.C.5 seeking quashing of the aforesaid FIR by the petitioners, namely Mudit Gupta, Shubham Gupta and Sandeep Gupta while BAIL APPLN. 2178/2024 is preferred under Section 439 of the Cr.P.C. seeking bail by the petitioner, namely Sandeep Gupta, who is in the judicial custody since 22.06.2024.

3. It may be noted that Mr. Laksh Khanna, learned APP for the State appeared on an advance notice along with IO6/SI7 Dhananjay Dubey from Special Cell, IFSO, Dwarka who has produced the Case Diaries.

1 First Information Report 2 Indian Penal Code, 1860 3 Intelligence Fusion & Strategic Operations 4 Cyber Crime Unit 5 Code of Criminal Procedure, 1973 6 Investigating Officer

7 Sub-Inspector 8 Directorate General of Health Services

4. The petitioners, in CRL. MC No.4875/2024 are the three Directors of M/s. Tirupati Medilines Private Limited [TMPL] and petitioner No.3 Mr. Sandeep Gupta is common to both the petitions, who is proprietor of M/s. Brij Textiles.

5. Ms. Rebecca John, learned Senior Counsel for the petitioners, at the outset, urged that the present FIR has been registered at the behest of the business rivalries of the petitioners, namely Rajeev Rangeela in connivance with the respondent No.2, namely Dr. Hari Charan Birua, Additional Director, DGHS8 (HQ Cord), GNCTD9.

6. Shorn off unnecessary details, it appears that on 24.06.2021 GeM Bid No. GEM/2021/B/1306949 was issued for single use rubber examination gloves (non-surgical gloves) for manufacturers and distributors to apply at the Pan-India level. Admittedly, bid submitted by M/s. Brij Textiles, a proprietorship concern of petitioner No.3 Sandeep Gupta was accepted being the lowest one and during the period 13.09.2021 to 14.09.2021, 50,64,450 non sterile single use rubber examinations gloves were supplied to the DGHS office and evidently payment to the tune of Rs. 4,35,22,618/- had been made on or about 09.12.2021.

7. It appears that respondent No.2, on joining the concerned department, issued the order dated 31.01.2024 (Annexure P-2″), thereby issuing notice to as many as 10 firms including TMPL controlled by petitioners No.1 and 2, as well as, M/s. Brij Textile, a proprietorship concern of petitioner, Sandeep Gupta alleging that the

9 Government of National Capital Territory of Delhi
10 Central Procurement Agency Mechanism

firms had supplied sub standard medicines, consumables and equipments and in the process indulged in tender pooling/cartel formation thereby perpetuating fraud upon the institution and causing huge financial loss to the public exchequer and thereby blacklisting the firms named therein, including the one controlled by the petitioners.

8. On receiving the above notice, two companies named in the notice assailed the impugned notice dated 31.01.2024 in WP (C) No. 1871/2024 titled as M/s. Bioshield Life Sciences v. GNCTD and WP (C) 2076/2024 titled as Hospimax Healthcare Private Limited v. GNCTD, which came to be decided by this Court vide judgment dated 03.05.2024. Resultantly, the impugned order dated 31.01.2024 was quashed and the respondents/DGHS were directed to release the payments so withheld by the respondents/DGHS to the petitioners therein inter alia providing as under:-

15..However, the respondents/DGHS shall be at liberty to take appropriate action against the petitioners on allegations as stated in impugned order or otherwise including the recovery pertaining to the medicines already supplied by them and found to be of substandard quality after following the principle of natural justice including issuance of show cause notice and giving due opportunity to the petitioners to present and defend their case and after following the procure as laid down various clauses and provisions of Invitation of e-tender for supply of the medicines.
9. It is pertinent to mention here that the aforesaid order dated 03.05.2024 was in context of the Bids which were accepted for the procurement of medicines and equipments under the CPMA10.

However, despite the aforesaid directions passed by this Court, the respondent No.2/Dr. Hari Charan Birua proceeded to pass an order dated 16..05.2024 against the 10 firms/companies including the one run by the petitioners, calling upon them to submit certain documents and other information, and thereby again blacklisting the firms/companies with immediate effect. It is pertinent to mention that the aforesaid order was in respect of procurement of the medical equipments which had been carried out through the GeM Procurement Process. The aforesaid order was challenged by M/s. Bioshield Life Sciences, one of the company that was blacklisted in WP(C) 8085/2024 and this Court vide order dated 29.05.2024 passed the following order:

1. The Petitioners have approached this Court challenging the Order dated 16.05.2024 passed by Respondent No.2/Directorate General of Health Services, GNCTD blacklisting the Petitioners from participating in any future tenders. 2. The writ petition has been drafted in such a way which indicates that the Impugned Order dated 16.05.2024 amounts to Blacklisting Order. 3. Learned Counsel appearing for the Respondents, on instructions from Dr. Hari Charan, Additional Director, states that the Impugned Order dated 16.05.2024 is not a Blacklisting Order qua the Petitioners herein. However, it is stated that the Impugned Order dated 16.05.2024 is in the nature of a Show Cause Notice and the Petitioner should respond to the said Show Cause Notice. The statement is taken on record. 4. In view of the above, the writ petition 1s disposed of, along with pending application(s), if any.
10. Simultaneously, the petitioners in earlier WP (C) 1871/2024 moved CM APPL. No. 33578/2024 and the Court disposed of the application on 30.05.2024 and passed the following order:

1. The present application is filed under section 151 C.P. C. for compliance of order dated 03.05.2024 passed by this Court. 2. This Court while deciding the petition observed as under:- 15. In view of the above discussion, the present petitions bearing W.P.(C) 1871/2024 . and W.P.(C) 2076/2024 are allowed and impugned order dated 31.01.2024 is accordingly quashed. The respondents/DGHS are directed to release the payments so withheld by the respondents/DGHS in pursuance of the impugned order immediately. However, the respondents/DGHS shall be at liberty to take appropriate action against the petitioners on allegations as stated in impugned order or otherwise including the recovery pertaining to the medicines already supplied by them and found to be of sub-standard quality after following the principle of natural justice including issuance of show cause notice and giving due opportunity to the petitioners to present and defend their case and after following the procure as laid down various clauses and provisions of Invitation of e-tender for supply of the medicines. 3. It is stated in the application that after the judgment order dated 03.05.2024, another letter/notice dated 16.05.2024 was issued from the office of Directorate General of Health Services, but without issuance of show-cause notice and without following the principles of natural justice. 4. Mr. Avishkar Singhvi, Additional Standing Counsel for the respondent no. I/Government of NCT of Delhi on instructions of Dr. Hari Charan Birla, Additional Director, HQ, DGHS, stated that the respondent no.2/DGHS shall withdraw the notice dated 16.05.2024 immediately and shall also release the payment to the petitioners subject matter of the present petition. It is further stated that the necessary action may be taken against the petitioners after following the directions as given in judgment dated 03.05.2024. 5. Let the needful regarding the release of the payment be done within 15 days. 6. The application stands disposed of. W.P.(C) 1871/2024 7. The Registry is directed not to list this matter further.
11. Ms. Rebecca John, learned Senior Counsel invited the attention of this Court to the aspect that in both the writ proceedings, which

were taken up for hearing on 29.05.2024, as well as, 30.05.2004, respondent No.2/Dr. Hari Charan Birua was physically present in the Court. However, he deliberately concealed the vital fact from the Court that he had lodged a complaint with the Special Cell, IFSO, Dwarka on 24.04.2024, in which complaint, similar allegations had been levelled against the company/firm run by the petitioners alleging that they were not manufacturers but only distributor and work had not been performed in terms of the tender, inasmuch as the performance certificate was not issued and the petitioners had defrauded the institution in connivance with other administrative officials, who dealt with the process of accepting the tender and making the payment, besides government doctors working in GNCTD.

12. In the said background, learned Senior Counsel for the petitioners pointed out that the complaint had been lodged by the respondent No.2 on his ipse dixit without taking any approval from the Head of the Department in DGHS and the attention of this Court was invited to the order dated 01.04.2024 passed by the Head of the Department DGHS to the following effect:

GOVERNMENT OF NCT OF DELHI DIRECTORATE GENERAL OF HEALTH SERVICES F-17, KARKARDOOMA, DELHI-110032 No. F.PS/DGHS/2024/886-892 Dated: 01.04.2024 ORDER It has been observed by the undersigned that information/ orders related to the policy matters of DGHS are issued without the approval of the Director, DGHS. Hence, all the Sections/ branches of DGHS are hereby directed to seek approval of the Director, DGHS before issuing any such orders/ information.
Any external communication/ orders issued without the approval of the Director, DGHS will be considered null and void. This is for strict compliance by all Branches/ Sections of DGHS, GNCTD. (Dr. Vandana Bagga) Director General Health Services (Link Officer) No. PS/DGHS/2024/ 886-892 Dated: 01.04.2024 Copy to: 1. The Addl. Director (HQ)/HOO, DGHS, GNCTD 2. All CDMOs, DGHS 3. All Branch In-charges, DHGS (HQ) 4. All Section In-charges, DGHS (HQ) 5. In-Charge, SHS/ MHS/ CPA/ MSNH/ AAMC/ EWS/DAK Copy forward for kind information to:- 1. The Secretary (H&FW), GNCTD, Delhi Secretariat, New Delhi. 2. The Spl. Secretary (DGHS), GNCTD, Delhi Sectt., New Delhi. (Dr. Vandana Bagga) Director General Health Services (Link Officer)
13. In view of the above, it was urged that the respondent No.2, for some ulterior motives in connivance with the rivals of the petitioners, very conveniently found a suitable Forum to lodge the complaint on 24.04.2024 and getting the present FIR registered on 31.05.2024 with the Special Cell, IFSO, Dwarka which had no jurisdiction in the matter; and in this regard this Court has been taken through the standing order No. Special Cell/01/2021 delineating inter alia the territorial and functional jurisdiction of the Cyber Cell. It was further urged that this is a fit case where the investigation should have been transferred and handled by the Anti Corruption Branch of the Delhi Police.

14. Ms. Rebecca John, learned Senior Counsel was joined by Mr. Mohit Mahtur, learned Senior Counsel applicant/accused in BAIL APPLN. 2178/2024 and it was pointed out that as per the prosecution two notices under Section 41 (A) of the Cr.P.C. were issued: bearing book No. 2451 Serial No. 82 by the IO/SI Dhanajay Dubey dated 22.06.2024 calling upon the applicant/accused Sandeep Gutpa to appear before him on the same day i.e. 22.06.2024 at 01:30 p.m.; and then notice vide the same book No. 2451, No. 84 was issued dated 19.06.2004 having overwriting over 2″ so as to make 1″ for appearance on 20.06.2024 at 12:00 p.m. and when the applicant/accused appeared, he was arrested in complete violation of the constitutional provisions and in particular in complete disregard to decision in the case of Arnesh Kumar v. State of Bihar11.

15. Mr. Mathur, learned Senior Counsel for the applicant/accused Sandeep Gupta alluded to the order dated 23.06.2024 passed by the learned Metropolitan Magistrate [MM], New Delhi District, Patiala House Courts, New Delhi wherein a new twist was added to the entire story by the IO alleging that the complainant/respondent No.2 had been allegedly abducted on 29.05.2024 from the premises of the High Court of Delhi and taken to the office of the accused, for which a complaint had been lodged at the Police Station Tilak Marg. Any how, it appears that one day police remand was granted on the request of the IO by the learned MM vide order dated 23.06.2024 and thereafter the applicant/accused is in judicial custody. Additionally, Mr. Mathur argued that the allegations levelled in the complaint dated

11 (2014) 8 SCC 273

24.04.2024 are completely concocted and ill-motivated since on receiving notice dated 31.01.2024, which was received through the personal email ID of the respondent No.2/ complainant, they had taken up the matter with the DGHS and they were apprised that vide email dated 04.03.2024 by the In-charge SHIB12/CME13, DGHS (HQ) that the email dated 01.03.2024 received from Mr. Birua was not through the official email ID of the department, and therefore, it was intimated that it being an administrative matter, Dr. Birua has been suggested to contact the office of DHGS for further clarification and confirmation.

16. It was vehemently argued that there was no foundation/ground available with the IO to detain and arrest the applicant/accused and very conveniently the FIR was registered with the Special Cell, IFSO, Dwarka, as it was probably not possible to proceed under the Prevention of Corruption Act, 1988 in the absence of sanction for prosecution against the other government officials.

17. Per contra, learned APP for the State has urged that the present matter has been under active consideration of the Special Secretary (Vigilance), GNCTD and as far back as on 05.10.2023, an inquiry into the matter had been initiated at the administrative level. It was urged that the documents that had initially been submitted for approval of the tender by the parties herein, were forged and fabricated and the complainant/ respondent No.2 in all probabilities instructed the Counsel on 30.05.2024 to withdraw the impugned notices as he was

12 State Health Insurance Bureau 13 Continuing Medical Education

apprehending threat to his life and liberty.

18. It was vehemently urged that the investigation is at nascent stage and the same should not be curtained in any manner.

ANALYSIS & DECISION:
19. Having given my thoughtful consideration to the submissions advanced by the learned counsels for the parties and on meticulous perusal of the record, this Court finds that issues raised by the learned Senior Counsels for the petitioners certainly requires a deeper examination. At this stage of the matter, it manifestly appears that the allegations in the complaint lodged by the respondent No.2/complainant cannot be accepted on its face. The twist in the story that the respondent No.2/complainant was abducted apparently falls flat when it is considered that he had appeared before this Court on 30.05.2024 when the matter came up in the proceedings in WP (C) 2076/2024. It goes without saying that the respondent No.2/complainant appears to be an ill-motivated crusader, who had been issuing all sorts of notice/order without even taking the Head of the Department into confidence, and thereby throwing all the norms of official business to the wind.

20. This Court, at this stage, is not going into the merits of the case, except for pointing out that the manner in which the award of contracts to the petitioners can be re-examined so as to find out if there was any violation of norms or the conditions of the tender, have already been examined and commented upon by this Court in the aforesaid Writ Petition.

21. Assumption of jurisdiction in the present matter on the part of

the Special Cell, IFSO, Dwarka thereby proceeding to register the FIR and the manner in which IO/SI Dhananjay Dubey has conducted himself exemplifies absolute miscarriage of justice. Even if the version of the IO is believed that the petitioner No.3 did not appear consequent to the notices issued on 19.06.2024, arresting the petitioner No.3 on his joining the investigation on 22.06.2024 is in complete violation of Section 41(A) of the Cr.P.C. and against the directions passed by the Supreme Court in the case of Arnesh Kumar (supra).

22. What is really unconscionable is that the IO without conducting any inquiry whatsoever with regard to the tender documents, verifying the same from the department or even seeking any preliminary advice as to whether or not the investigation be proceeded against the government officials, audaciously proceeded to arrest the petitioner No.3 not even supplying him with the grounds of arrest in terms of decision by the Supreme Court in the case of Prabir Purkayastha v. State (NCT of Delhi)14.

23. It also goes without saying that the learned MM also passed the remand order in a mechanical manner. This matter certainly calls for a strict disciplinary action against respondent No.2/complainant. Hence, notice be issued to him to explain his actions.

24. In view of the foregoing discussion, pending a complete reply that needs to be filed by the respondents including respondent No.2, insofar as CRL.M.C. 4875/2024 is concerned, no further investigation shall proceed arising out of FIR No. 224/2024 dated 31.05.2024 with

14 2024 SCC OnLine SC 934

PS Special Cell, IFSO, Dwarka qua the petitioners till further orders of this Court. Resultantly, no coercive steps shall be taken against the petitioners No. 1 and 2 till further orders of this Court.

25. Lastly, based on the foregoing reasons BAIL APPLN. 2178/2024 is allowed and the applicant/accused Sandeep Gupta is enlarged on bail under Section 439 of the Cr.P.C. on his furnishing personal bond in the sum of Rs. 50,000/- with one surety of the like amount subject to the satisfaction of the concerned MM/Link MM/Duty MM.

26. The BAIL APPLN. 2178/2024 is disposed of.

27. The petition bearing CRL. MC 4875/2024 be placed for hearing before the learned Roster Bench on 20.08.2024.

28. As requested, a copy of this order be given dasti under the signatures of the Court Master.

DHARMESH SHARMA, J. (VACATION JUDGE) JUNE 29, 2024 Sadiq