Bombay High Court
Rajesh Dayashankar Pandey vs State Of Maharashtra on 12 October, 2022
Author: Bharati Dangre
Bench: Bharati Dangre
(5)BA-647-2022-connected.doc
rajshree
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.647 OF 2022
WITH
BAIL APPLICATION NO.274 OF 2022
WITH
BAIL APPLICATION NO.273 OF 2022
WITH
BAIL APPLICATION NO.259 OF 2022
WITH
BAIL APPLICATION NO.562 OF 2022
Rajesh Dayashankar Pandey ] .. Applicant
vs.
State of Maharashtra ] .. Respondent
Mr.Ashok Saraogi a/w Mukesh Mishra i/b Lawmatics India for the
Applicant in all Applications.
Mrs.A.A. Takalkar, APP for the State.
PI Ware-Kandivali Police Station, PI Madye- Borivali Police Station, PI
Anchalwar-Khar Police Station, PSI Sonawane-Versova Police Station
and PSI Gavkar-Amboli Police Station present.
CORAM : BHARATI DANGRE, J
DATE : 12th OCTOBER, 2022.
P.C.
1] In all the five Applications which are listed before me, the
Applicant/accused is the same and he seek his release on bail in five
distinct CRs registered with five distinct Police Stations. He face more
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or less similar accusations in all the five CRs and common offences are
invoked against him, which involve Section 268, 270, 274, 275, 276,
308, 419, 420, 465, 467, 468, 470, 471, read with 34, 188 of the Indian
IPC. The said CRs also invoke Section 3 of Epidemic Disease Rules
as well as Section 52 of the Disaster Management Act. In two of the
CRs, provisions of Section 18, 18A, 18B, 24, 27 and 28 of the Drugs
and Cosmetics Act, are also invoked.
2] The distinct complaints came to be lodged in Kandivali, Borivali,
Versova, Amboli and Khar Police Stations, alleging that in the Covid
vaccination camp that came to be organized in different parts of the
city, fake vaccines were administered to certain individuals, without
their names being recorded on the Covin APP, despite the Government
instructions providing that the persons who are registered, shall only be
administered the vaccine.
In Kandivali and Versova Police Stations, the allegation is also
levelled that fake certificates came to be issued.
3] The investigation revealed that the contains of the vial, which
was projected to be the vaccine was actually not, what was projected
i.e. Covishield vaccine. In this transaction,huge amount has been
received by the accused persons and this resulted in filing of charge-
sheet against 10 accused persons in CR No.252/2021 registered with
Versova Police Station. On similar lines charge-sheets were filed in
other CRs.
4] Heard the learned counsel Mr.Ashok Saraogi alongiwth Mukesh
Mishra i/b Lawmatics India, representing the Applicant in distinct
Applications and learned APP Mrs.A.A. Takalkar, for the State. The
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Applications were heard in the presence of Investigating Officers of all
the five police stations.
The learned counsel Mr.Saraogi would submit that when charge-
sheets placed on record, filed in five distinct cases are carefully
perused, the Applicant is not attributed any mens rea and from the
charge-sheet what has clearly surfaced on record, is role in assisting
the organization of the camps for the purpose of vaccination, but he is
not the entity who actually operated the camps where vaccines were
administered. He would further assertively submit that not a single
penny is received by the Applicant and the prosecution do not even
accuse him of any monetary gain. He would further submit that
vaccines were arranged by Shivam Hospital and even the doctors of
the said hospital are arraigned as accused and there is no material in
the charge-sheets establishing that the applicant had knowledge that
the vaccines were fake as it is only when the vaccine was forwarded to
Halfkine Institute, it was revealed, they were fake.
In absence of any mens rea attributed, the learned counsel
would submit that since the investigation is complete and charge-sheet
is already filed, his custody will serve no purpose and, therefore, he
deserve his release on bail in all the CRs.
5] Per contra, the learned APP has strongly opposed the
applications. Her submission is that the Applicant alongwith co-
accused inoculated fake vaccine doses to number of people without
recording their names in the Covin App and without giving any
intimation to the Municipal Corporation. The offence, according to her
is serious in nature and there is every possibility that on release of the
Applicant, the prosecution case can be tampered by him.
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6] On hearing the learned respective counsel, I have perused the
charge-sheets filed in distinct CRs and since the allegations faced by
the Applicant are identical, I prefer to reproduce the facts as alleged in
the complaint, which resulted in registration of CR No.252/2021
registered, with Versova Police Station.
The complaint Sanjay Rautrai allege that he was known to the
Applicant and somewhere in May 2021 the Applicant called him and
informed him that Kokilaben Hospital has started vaccination drive for
the corporate sector and housing societies and therefore if the
complainant is desirous of having his employees or those residing in
the society to be vaccinated, he can help with that. In pursuance to
the offer, the complainant requested the Applicant to arrange the
vaccination drive in their society and for his employees. Accordingly,
the vaccination camp, as per schedule was held on 29.05.2021 at 11.00
a.m. The complainant transferred a sum of Rs.2,12,400/- in the IDFC
Bank account of S E & P Investments for 151 doses. As scheduled, on
the said date, Sanjay Gupta and two other persons arrived at the spot
and administered the vaccines. When the complainant inquired about
certificates to be provided, he was informed that on account of some
problem in the server, certificate delivery is delayed. To his dismay on
12.06.2021, 10 persons of those who were vaccinated received the
certificates in the name of Nanavati Hospital and this created a doubt
in the mind of the complainant and therefore he lodged complaint.
It is pertinent to note that in the similar fashion 13 FIRs were
registered in different Police Stations, out of which in five FIRs i.e
registered with Kandivali, Borivali, Versova, Amboli, Khar Police
Stations, where the present Applicant is arraigned as accused.
7] On completion of investigation, charge-sheet was filed in CR
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No.252/2021, where 10 persons are arraigned as accused and
Accused Nos.1 to 8 are charged for hatching a conspiracy of organizing
vaccination camp and administering doses other than the one capable
of preventing the virus and they are charged for defrauding the said
persons and accepting huge amount, possessing the knowledge that
not administering genuine drug may cause death of those persons.
They were also charged under Section 3 of the Epidemic Disease Act
as well as Section 52 of the Disaster Management Act.
Accused Nos.9 and 10 are also charged for conspiring with other
accused persons and recording entries in the computer system by
using fake Id's and passwords, gaining access to Covin Portal.
sub Similar charge-sheets are filed levelling almost similar allegations
against the Applicant and other accused persons.
8] On perusal of the charge-sheet, the role of the present Applicant
has clearly surfaced on record, as he is the one who assisted the
society/complainant for organizing camp, and it is the Accused No.2,
Sanjay Gupta, the proprietor of S E & P Investments who received the
money into his account. The vaccine came to be procured from
Shivam Hospital and doctors in the said Hopsital viz. Dr.Shiraj Pataria
and Neeta Pataria are arraigned as accused .
The charge-sheet do not reveal that the Applicant has played
any other role than this. The charge-sheet do not contain any material
which would be sufficient to infer knowledge on the part of the
Applicant, that the drug to be administered was fake.
On the other hand, the persons who would probably had
knowledge, are Dr.Shivraj Pataria, Neeta Pataria, Manish Tripathi,
Mahendra Singh and one Sanjay Gupta. They are charged as
masterminds for giving effect to the pre-planned strategy to inject
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different doses in the name of genuine doses.
In any case, the Applicant do not possess expertise to know
whether the vaccine was fake or genuine and the charge-sheet do not
accuse him of receiving a single farthing out of the transaction. Though
feebly the learned APP would argue that at the instance of applicant,
the amount was transferred in the account of S E and P Investments,
the Applicant is not beneficiary of any monetary transaction and prima-
facie, I am convinced to accept the submission of Mr. Saraogi that like
other good Samaritans who lent out helping hand with good intention,
to see that maximum people are vaccinated, he suggested that since
the corporate group hospitals are ready to provide vaccines, camp can
be organized at the door step of the society for getting vaccines.
9] Considering the limited role attributed to the Applicant and
particularly when it can be seen that the vaccine was also administered
by the staff of Shivam Hospital and since material in the charge-sheet
falls short of any active participation of the Applicant in the entire
episode of administering fake vaccines in the camp which was
organized as a bonafide gesture, the Applicant cannot be further
incarcerated when the investigation is over and charge-sheet is already
filed.
10] It is informed that, Mrs.Neeta Pataria, Dr.Shivraj Pataria,
Chandan Singh and Nitin Monde, the co-accused, are already released
on bail by the Sessions Court. I am inclined to extend the benefit of the
said order to the Applicant since prima-facie no mens rea is attributed
to him, nor the prosecution has brought on record any material to
attribute knowledge to him, that the vaccine was fake and in any case
he was not the person who administered the vaccines, hence,
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Applicant deserve his release on bail.
11] The observations made above are prima facie in nature and
limited for the purpose of determination of the present Application and
the learned Judge trying the Applicant for the offences, with which he is
charged, shall not in any manner be influenced by the above order.
Hence, following order is passed :
ORDER
(a) Application is allowed.
(b) Applicant - Rajesh Dayashankar Pandey shall be
released on bail in connection with C.R.No.591/2021 in Kandivali Police Station, CR No.274/2022 in Borivali Police Station, CR No.647/2022 in Versova Police Station, CR No.534/2022 in Amboli Police Station and CR No.259/2022 in Khar Police Station, on furnishing P.R. bond to the extent of Rs.50,000/- in each CR, with one or more sureties of the like amount.
(c) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with facts of case so as to dissuade him from disclosing the facts to Court or any Police Officer and should not tamper with evidence.
(d) He shall not leave India without prior permission of the court.
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(e) The Applicant shall regularly attend trial, on every date, unless he is exempted.
(f) The Applicant shall provide his residential address and contact number to the Investigating Officer and keep him updated if there is any change.
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