Court No. - 1
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 16107 of 2019 Applicant :- Dr. Aradhana Pathak Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Gopal Swarup Chaturvedi,Prashant Vyas Counsel for Opposite Party :- G.A.,Gyan Prakash
Hon'ble Ramesh Sinha,J.
Counter affidavit filed on behalf of CBI which is taken on record.
Personal affidavit on behalf of DIG/SSP has also been filed today by learned A.G.A. which is taken on record.
Heard Sri Gopal Swarup Chaturvedi, learned Senior Advocate assisted by Sri Prashant Vyas, learned counsel for the applicant, Sri A.R. Chaurasiya, learned A.G.A for the State, Sri Gyan Prakash, learned Senior Advocate assisted by Sri Sanjay Kumar Yadav, learned counsel for CBI and perused the record.
It has been argued by learned counsel for the applicant that the applicant is posted as Resident Medical Officer (RMO Subcharge) in Cantonment General Hospital, Meerut, Cantt., District Meerut since the year 1998. She has performed he responsibilities/duties to the entire satisfaction of her superiors, with unblemished record. There is no complaint against her from any person. The applicant supervises day to day affairs of the said hospital and the demand for purchase of medicines was forwarded to the CEO of Cantonment Board on an annual basis. She has not participated in meetings of the Board regarding purchase of drugs/medicines she being a technical medical expert, sends the comparative statements to the Board and it is the Board which approves it, after getting it verified by the CEO. The demand of drugs/medicines is being informed by the store keeper and demand letter is being countersigned by Medical Officer Incharge, who is an Army Officer. The final approving authority is the Cantonment Board and the CEO is the sole authority regarding the purchase and payments of drugs/medicines in accordance with the approval of the Board. He is responsible for each and every payment for annual purchase of drugs. The payment of purchase is being done through cheques signed by the CEO after having been processed by the Cantonment Board. There is no evidence to prove that the applicant conspired with the co-accused persons for the purchase of medicines and drugs. The allegation against her is totally false and baseless. It was further argued that in view of Section 338 of the Cantonment Act, 2006 which provides protection from action against Board and its employees as no evidence of any malpractice has been specifically shown. The act of the applicant was in good faith in discharge of her duties as an employee of the Cantonment Board as well as of the doctor. Section 358 of the Cantonment Act states that the Cantonment Board is an independent autonomous body. It shall be deemed to be a Municipality under Clause E of Article 243 of the Constitution of India. A Joint Surprise Check Memorandum was made on 12th and 13th of May, 2015 but the FIR was subsequently lodged after a gap of about ten months for which there is no plausible explanation. The investigation of proceedings was suo moto by the CBI against the applicant without the consent of the appropriate authority which is Cantonment Board and thus without any proper authority and jurisdiction. In the present matter, neither any prior departmental inquiry was conducted by the Board nor the matter was referred to CBI by the Board. It was lastly submitted that the applicant is a lady and she is suffering from Relapsing, Remitting type of Multiple Sclerosis since 1999 which is a progressive disease and can lead to damaging symptoms to eyes and any other part of body due to involvement of the neurological system at any point of time because of involvement of nerves of the brain and spinal cord. She cannot stand or perform any activity without the support of others. A supplementary affidavit has also been filed annexing the documents regarding her treatment of the said ailment in the jail where she is confined. The ailment of the applicant has been verified by the Board of doctors which was also constituted by the DIG/SSP, Ghaziabad through CMO. A detailed report regarding her ailment has been submitted by the Medical Board on 25.05.2019 and while remained in jail, she was also referred to MMG Hospital, Ghaziabad on 19.03.2019 for her medical treatment. From there, she was referred for further treatment to G.B. Pant, Medical Institution, New Delhi on 23.03.2019 due to chronic advanced multiple sclerosis with acute relapse MS. Thus, it was argued that the applicant may be released on bail as she is in jail since 16.03.2019.
Learned counsel for the CBI vehemently opposed the prayer for bail and submitted that the applicant in collusion with M.A. Zafar, Officiating Office Superintendent entertained tender Form of M/s. Wellchem Pharmaceuticals which has not enclosed valid drug license certificate in the year 2011-12 during submission of tender form . The applicant while making recommendation, wrote "It is submitted that the lowest rate marked in the red circle are perused and verified from the market lowest rate mentioned at serial numbers...........seems to be reasonable and recommended for approval" with malafide intention. She dishonestly recommended the purchase of medicines on exorbitant rates and gave false certification to this effect. No market survey etc. whatsoever was conducted in this regard at her end. Similarly, she for procurement of medicines from M/s. Arora Pharma, proceeded the invalid tender Form without original tender Form issued by CEO office of Cantonment Board. She falsely informed Sri Parshotam Lal, the then CEO, Cantonment Board, Meerut with dishonest intention that the list provided by her contained only generic medicines/salt name. However, this list contained medicines of M/s. Wellchem Pharmaceuticals, Meerut with brand name/salt name. She dishonestly showed false enquiry for inviting quotations and entertained forged quotation in connivance with co-accused Sushil Kumar, compounder cum store keeper at exorbitant rates from M/s. Arora Pharma. In this procurement, the applicant and co-accused Sushil Kumar showed three firms i.e. M/s. Arora Pharma, M/s. Indochem Distributor and M/s. Ashish Pharmaceuticals, Meerut for supply of medicines and thus placed order on M/s. Arora Pharma through local purchase and sub charge impress thereby causing wrongful gain to M/s. Arora Pharma. In this regard, proprietor of M/s. Ashish Pharmaceuticals denied of having received enquiry or submitting quotation at CGH, Meerut under section 164 Cr.P.C and similarly some other quotations were invited by her from M/s. R.S. Medicals Agencies and M/s. Shakti Medicals Agency, Meerut for purchase of medicines. It was further pointed out that the total amount involved in the present case is to the tune of Rs. 23,46,436/- which pertains to the year 2011-15 but learned counsel for CBI could not dispute that the applicant is a lady suffering from Relapsing, Remitting type of Multiple Sclerosis since 1999 as referred above.
Without expressing any opinion on merits of the case and considering the fact that applicant is a lady suffering from Relapsing, Remitting type of Multiple Sclerosis since 1999; nature of accusation and the severity of punishment in case of conviction, the nature of supporting evidence, reasonable apprehension of tempering of the witnesses and prima facie satisfaction of the Court in support of the charge, the applicant is entitled to be released on bail in this case.
Let the applicant Dr. Aradhana Pathak involved in Case Crime No. RC- 120-2016-A-0003 under Section 120-B (r/w 420, 468, 471 IPC), 420, 468, 471 IPC, Police Station CBI, ACBm, District Ghaziabad be released on bail on her furnishing a personal bond of Rs. 1,00,000/- with two sureties (one should be of her family member) each in the like amount to the satisfaction of the court concerned with the following conditions.
(i) The applicant shall file an undertaking to the effect that she shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through her counsel. In case of her absence, without sufficient cause, the trial court may proceed against her under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure her presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against her, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against her in accordance with law.
(v) The applicant shall surrender her passport, if any, before the Court concerned and shall furnish an undertaking not to leave the country until permission is obtained by her from this Court or till the conclusion of the trial.
Order Date :- 30.5.2019/Madhurima