Himachal Pradesh High Court
Mukesh Saini vs State Of Himachal Pradesh on 31 May, 2024
Author: Sushil Kukreja
Bench: Sushil Kukreja
( 2024:HHC:3072 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 503 of 2024 .
Reserved on: 17.05.2024 Decided on: 31.05.2024 Mukesh Saini ...Petitioner Versus State of Himachal Pradesh ...Respondent Coram The Hon'ble Mr. Justice Sushil Kukreja, Judge Whether approved for reporting?1 For the petitioner: Mr. Ashwani Dhiman, Advocate. For the respondent: Mr. Navlesh Verma, Additional Advocate General.
____________________________________________________ Sushil Kukreja, Judge The present bail application has been filed by the petitioner under Section 439 of the Code of Criminal Procedure (Cr.P.C.) read with Section 36 AC (Clause-III) of Drugs and Cosmetics Act for grant of regular bail in complaint case registered under Sections 18(a)(i) read with Sections 17B(e), 18(a)(vi), 18(c), 22(1) (cca), 18A, 18B, & 22(1) (d) of the Drugs and Cosmetics Act, 1940 (for short, 'DAC Act').
1Whether reporters of Local Papers may be allowed to see the judgment?
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2. Brief facts of the case, as per the status report filed .
by the respondent-State, are that on receipt of information about sale of spurious drugs through vehicle bearing registration No.HP93-3196 by the firm M/s Magnatek Enterprises, Baddi Solan, H.P., the Drugs Inspector, HQ Baddi, District Solan, H.P intercepted and followed the said vehicle upto the godown of M/s RS Roadlines. Thereafter, a team of Drugs Inspectors was constituted and the said team alongwith the witnesses and the police personnel visited the godown of M/s RS Roadlines, where owner of the transport godown, namely, Ram Sharan, was found unloading the shippers/cartons from the aforesaid vehicle. The team of the Drugs Inspectors checked the boxes, which were received by the said transporter from M/s Magnatek Enterprises and said Ram Sharan disclosed that he had also received some medicines from M/s Magnatek Enterprises on 14.07.2023, which were lying in his godown. Thereafter, the boxes were checked and a huge stock of spurious drugs was recovered, description whereof is as under:-
Sr. Name of Drug Batch No. Mfd. By as per label claim Quantity No.
1. GLIMESTAR- F05W002 M/s Mankind Pharma 1,51,200 PM1 Tablets Limited, Doring Block, tablets Bermiok Elaka, South ::: Downloaded on - 31/05/2024 20:37:06 :::CIS
3 ( 2024:HHC:3072 ) Sikkim-737 126.
2. Rejunex-CD 3 K2300485 M/s Intas Pharmaceuticals 96,000 Tablets Ltd., Bghhey Khula, Tablets .
Majhitar, Sikkim.
3. The GST invoices dated 14.07.2023/15.07.2023 and e-way bills, which were issued by M/s Magnatek Enterprises in favour of M/s Evo Lifesciences, Rohtak and M/s Sai Medical Agency Bhagirath Palace, Delhi and others were produced by said Ram Sharan However, the drugs on invoices of M/s Magnatek Enterprises did not match with the actual physical stock of drugs which were transported by the firm. Thereafter, the team of Drug Inspectors seized the spurious drugs and also took into possession the documents. Samples of the spurious drugs were sent for analysis. Said Ram Sharan telephonically contacted M/s Magnatek Enterprises to visit the spot/godown, but when no one came on the spot, the team of Drug Inspectors alongwith the police personnel visited M/s Magnatek Enterprises, Plot No.74C(II) HPSIDC, Industrial Area Baddi, H.P. to avoid any tempering of evidence by the accused persons at the aforesaid firm and when they reached at M/s Magnatek Enterprises, it was found that one Balraj was taking instructions over phone from the owners of the firm and it was also found that said Balraj had ::: Downloaded on - 31/05/2024 20:37:06 :::CIS 4 ( 2024:HHC:3072 ) dumped the scrap of the spurious drugs in two polythene bags .
near the firm on the directions of owner of firm, i.e., Mukesh Saini (petitioner herein). These polythene bags of scrap of spurious drugs were recovered and on opening the said bags, a huge stock of defoiled strips, empty strips and scraps of product Glimestar PM1 tablets Batch No.F05W002 Mfg. date 01/2023 Exp. date 01/2024 Mfg. by Mankind Pharma Ltd. and of Rejunex CD3 Tablets manufactured by M/s Intas Pharmaceuticals and other material were also recovered. During the inspection and search, aforesaid Balraj absconded from the premises and he did not sign any document. The team recovered a huge stock of spurious material, detail whereof is as under:-
1. Loose white & pink coloured oval biconvex bilayered tablets quantity 134.44 kg.
2. Glimi Save M2 tablets B.No.GGLV23010, MFG-Date-Apr.
2023, Exp. Date Mar, 2026, manufactured by M/s Eris Lifesciences Limited, Amingaon, North Guawahti, District Kamrup-781031 (Assam) quantity 15 tablets in one strip.
3. Empty blister, B. No. C35W010 and 7 de-foiled strips/blisters of product Glimestar PM I, labeled as manufactured by M/s Mankind Pharma Ltd, Doring Block, Bermiok Elaka, South Sikkim.
4. One strip of Glimestar PMI B.No. F05W002 labelled as manufactured by M/s Mankind Pharma Ltd. and 1 GST invoice No. MEDA000440 dated 21.03.2023.
5. DVR of CCTV cameras from the manufacturing premises of M/s Magnatek Enterprises, Plot No. 74C(II), HPSIDC Industrial area Baddi, District Solan, H.P. ::: Downloaded on - 31/05/2024 20:37:06 :::CIS 5 ( 2024:HHC:3072 )
4. On 16.07.2023, a notice was given to the petitioner, .
through his employee, namely Rajender Kumar, which was also displayed on the gate of M/s Magnatek Enterprises, whereby the petitioner was directed to join the investigation on 17.07.2023.
Statement of Shri Ram Sharan was recorded under Section 164 Cr.P.C., wherein he stated that he had received the medicines from M/s Magnatek Enterprises for transportation to Delhi. On 19.07.2023 a team of Drug Inspectors visited the office of Drugs Control Department Government of NCT, Delhi for verification of the sale invoices recovered from the aforesaid firm, however, the premises of M/s Sai Medical Agency, situated at Shop No.8, Second Floor, 1541/A-45 ICC Market Bhagirath Place Delhi, was found closed. It was found that said firm was in partnership with Deepak Kumar and Shyam Kumar and when contacted, their mobile numbers were found switched off.
5. Another team of Drug Inspectors visited firm M/s Evo Life Sciences Pvt. Ltd., Rohtak and one Dheeraj was found there, who disclosed that he never received any physical stock from the M/s Magnatek Enterprises and instead the material was directly sent to Delhi and feigned his ignorance that the drugs were ::: Downloaded on - 31/05/2024 20:37:06 :::CIS 6 ( 2024:HHC:3072 ) spurious. He also disclosed that the sale and purchase of drugs .
from M/s Magnatek Enterprises were maintained by another director of M/s EVO Life Sciences, Shri Tarun Sharma, who after receiving the drugs at Delhi, used to make bills in favour of M/s Geet Enterprises, situated at UGF-13 AC, Medicine market building No.110/51, Naya Gaon East, Aminabad, Lucknow and other firms. Thereafter, the team of Drugs Control Administration, Lucknow on being informed, visited the firm M/s Geet Enterprises on 19.07.2023,where Tarun Sharma, Prop. M/s Geet Enterprises, disclosed that he only received GST invoice from the firm M/s Evo Life Sciences and no physical stock was supplied by his firm.
6. On 20.07.2023 authorized signatory of M/s Mankind Pharma Ltd. joined the investigation and after comparative analysis of control samples of M/s Mankind Pharma Ltd. with the drugs recovered at M/s Magnatek Enterprises, the same were not found to be the true products of M/s Mankind Pharma Ltd., Sikkim and were counterfeit. M/s Anand Pharma, UGF-5, Surya Medicine Market Meerjan, Lucknow, U.P. was telephonically inquired about the supply of spurious drugs from M/s Sai Medical Agency Bhagirath Palace, Delhi and it was informed that the ::: Downloaded on - 31/05/2024 20:37:06 :::CIS 7 ( 2024:HHC:3072 ) drugs were returned back through M/s Mehta Interstate Transport .
Corporation, Delhi. Thus, on 05.08.2023 a team of Drugs Inspectors, Baddi, alongwith team of Drugs Control Department, Government of NCT, Delhi and CDSCO, Delhi, visited the premises of M/s Mehta Interstate Transport Corporation, Tees Hazari Metro Station Road, Delhi and recovered a consignment No.
1. Batch No. Glimestar M2 C31AV076 of spurious drugs, details whereof are as under:
Sr. Name of Drug M/s Mfd. By as per label claim Mankind Pharma Quantity 192x06x10 Tabs Limited, Doring Block, tabs (11520) Bermiok Elaka, South tablets Sikkim-737 126.
2. Candid Mouth 46220049 Glenmark Pharmaceuticals 450x2 5 ml paint Ltd., at Plot No. 38, 39, Sector-11, I.I.E., SIDCUL, Haridwar, Uttarakhand-
249403
3. Glimisave M2 GGLV22022 Eris Lifesciences Ltd., 44x10x15 Tabs Amingaon, North tablets (6600 Guwahati, District Kamrup- tablets) 781 031.
7. The representative of M/s Mankind Pharma Ltd.
joined the investigation at Delhi and on comparative analysis of drugs, he disclosed that the recovered drugs did not match with their original products, thus were counterfeit. On 07.08.2023, a team of Drug Inspectors, Baddi, alongwith the Drug Inspectors, Lucknow visited the premises of M/s Anand Pharma, Lucknow ::: Downloaded on - 31/05/2024 20:37:06 :::CIS 8 ( 2024:HHC:3072 ) and procured sale/purchase invoices of spurious drugs supplied .
by M/s Magnatek Enterprises, through M/s Sai Medical agency Delhi. Team of Drug Inspectors also visited M/s Shree Banke Bihari Pharma, Shop No.LGF-33, 110/25, Meerjan Lane, Naya Gaon, East Aminabad, Lucknow and M/s Sai Nirmal Enterprises, Shop No. 4, UGF 92/267, Azad Complex, GB Marg, Naya Gaon, East Aminabad, Lucknow, U.P. and took into possession GST invoices and stock details of drugs supplied by M/s Geet Enterprises.
8. On 12.08.2023 and 13.08.2023, the petitioner joined the investigation alongwith his counsel, but he could not produce any document/record/invoice etc. qua the raw material, foils, packing materials, manufacturing and sale of spurious drugs. On 18.08.2023 a team of Drug Inspectors visited the premises of M/s Magnatek Enterprises, Baddi and in presence of the petitioner, the premises was searched and the following recoveries were effected, including the recovery of spurious drugs:-
"1. 611 scrap blisters of spurious drug 'Montair LC', labelled as B.No. AFB22P18, Mfg. By M/s Pure & Cure Healthcare Pvt. Ltd. and Marketed By M/s Cipla Ltd.
2. One blister containing 15 tablets of spurious drug Triglimisave 2, B.No. GTMU23001 labelled as manufactured by Eris Lifesciences Ltd.::: Downloaded on - 31/05/2024 20:37:06 :::CIS
9 ( 2024:HHC:3072 )
3. Six blisters containing 15 tablets in each of ZEBIFLAM C, purported to be manufactured by M/s Silhos Pharma Ltd.
.
4. Four Brown coloured tape pre-printed with inscription 'Unichem Laboratories Ltd.'
5. Various invoices and e-way bills suspected of spurious drugs.
6. Printed cartons of products, 'OSTEOBEN, MECAL softgel capsules, ODOCAL-D3 Softgel capsules, CALBOR Softgel Capsules, labelled as manufactured by 'Sigma softgels & formulations Baddi, District Solan, H.P."
9. The representative of firm M/s Pure and Cure Healthcare Pvt. Ltd., Baddi, District Solan, H.P., also joined investigation, who after physical analysis, reported that the above products were not manufactured by M/s Pure & Cure Healthcare Pvt. Limited and were spurious in nature. The statement of the petitioner was recorded, wherein he neither disclosed anything nor produced any records qua the aforesaid spurious drugs recovered from his firm. During further investigation, it was found that spurious product Montair LC B.No. AFB22P18, 611 scrapped defoiled blisters whereof were recovered from the premises of M/s Magnatek Enterprises on 18.08.2023, was supplied by M/s Geet Enterprises to M/s Banke Bihari Pharma.
Spurious product Triglimisave 2, B.No.GTMU23001, manufactured by Eris Lifesciences Ltd., which was recovered ::: Downloaded on - 31/05/2024 20:37:06 :::CIS 10 ( 2024:HHC:3072 ) from the premises of the firm M/s Magnatek Enterprises on .
18.08.2023 was supplied by M/s Geet Enterprises to M/s Sai Nirmal Enterprises. On 18.08.2023 the premises of M/s Magnatek Enterprises was sealed and the petitioner was asked to join the further investigation on 19.08.2023, but he did not join the investigation on the said date and on 21.08.2023 machines used for manufacturing spurious drugs were seized and samples for analysis were lifted. On the same day, the representatives from M/s Pure & Cure Healthcare Pvt. Ltd. and M/s Cipla Ltd.
joined the investigation and submitted the control sample of same drugs which were recovered from M/s Magnatek Enterprises and further disclosed that the products recovered from M/s Magnatek Enterprises were spurious.
10. Subsequently, the anticipatory bail application preferred by the petitioner under Section 438, Cr.P.C was dismissed by this Court, vide order dated 24.11.2023 and the interim protection granted to him was withdrawn. However, thereafter the petitioner remained absconded and did not join investigation and then the learned JMFC, Nalagarh issued arrest warrant to ensure his presence before the trial Court, but the ::: Downloaded on - 31/05/2024 20:37:06 :::CIS 11 ( 2024:HHC:3072 ) same could not be served upon him, hence, proceedings to .
declare him as proclaimed offender were initiated. On 22.03.2024, the petitioner surrendered before this Court and he was sent to judicial custody. Thereafter, he was sent to the custody of Drug Inspectors for investigation and now he is stated to to in judicial custody.
11. The instant bail application has been filed by the petitioner on the ground that he is innocent and has been falsely implicated in the present case. Learned counsel for the petitioner contended that just because the petitioner was the partner of the firm, it is not necessary that he was aware about the day-to-day functioning of the firm and no spurious drugs, as alleged, were ever recovered from his exclusive and conscious possession. He further contended that the petitioner is suffering from disc space problem due to fusion of the anterior and posterior elements of L4-L5 vertebrae with loss of intervening disc space, therefore, he may be ordered to be released on bail keeping in view his health condition and also that the investigation of the case is complete and nothing remains to be recovered from him.
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12. Per contra, the learned Additional Advocate General .
opposed the bail application on the ground that the petitioner does not deserve to be released on bail as he has been found involved in a serious offence of manufacturing and sale of drugs which are found spurious. It is also contended that the aforesaid spurious drugs are consumed by the patients which could cause serious results and the minimum sentence provided for manufacturing/ selling and dealing with the spurious drugs is ten years, which may extend to life imprisonment, as such, the petitioner is not entitled to be released on bail.
13. I have heard the learned counsel for the petitioner as well as the learned Additional Advocate General for the State and also gone through the records carefully. For the disposal of this application for grant of bail, Section 36-AC of DAC Act is relevant, which may be quoted as below:-
"36 AC. Offences to be cognizable and non-bailable in certain cases.
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-
(a) every offence, relating to adulterated or spurious drug and punishable under clauses (a) and (c) of sub-
section (1) of section 13, clause (a) of sub-section (2) of section 13, sub-section (3) of section 22, clauses (a) and
(c) of section 27, section 28, section 28A, section 28B and sub-sections (1) and (2) of section 30 and other ::: Downloaded on - 31/05/2024 20:37:06 :::CIS 13 ( 2024:HHC:3072 ) offences relating to adulterated drugs or spurious drugs, shall be cognizable.
(b) no person accused, of an offence punishable under .
clauses (a) and (c) of sub-section (1) of section 13, clause (a) of sub-section (2) of section 13, sub-section (3) of section 22, clauses (a) and (c) of section 27, section 28, section 28A, section 28B and sub-sections (1) and (2) of section 30 and other offences relating to adulterated drugs or spurious drugs, shall be released on bail or on his own bond unless
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and
(ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail:
Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs.
(2) The limitation on granting of bail specified in clause
(b) of sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.
(3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 (2 of 1974) and the High Court may exercise such powers including the power under clause
(b) of sub-section (1) of that section as if the reference to "Magistrate" in that section includes also a reference to a "Special Court" designated under section 36AB."
14. This Section provides that notwithstanding anything contained in the Code of Criminal Procedure, every offence as mentioned in the provision shall be cognizable and no person ::: Downloaded on - 31/05/2024 20:37:06 :::CIS 14 ( 2024:HHC:3072 ) accused of such offence shall be released on bail unless the .
Public Prosecutor has been given opportunity to oppose the application for such release and where Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail.
15. to Section 27 of the DAC Act provides that the persons found guilty for the manufacture, sale etc. of the adulterated and spurious drugs shall be liable to be punished with imprisonment for a term which shall not be less than ten years and which may extend to a term of life with fine which shall not be less than rupees ten lakh or three times value of the drugs confiscated, whichever is more. It reads as under:-
"27. Penalty for manufacture, sale, etc., of drugs in contravention of this Chapter.- Whoever, himself or by any other person on his behalf, manufacturers for sale or for distribution, or sells, or stocks or exhibits or offers for sale or distributes.
(a) any drug deemed to be adulterated under Section 17A or spurious under Section 17B or which when used by any person for or in the diagnosis, treatment, mitigation, or prevention of any disease or disorder is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of S. 320 of the Indian Penal Code, solely on ::: Downloaded on - 31/05/2024 20:37:06 :::CIS 15 ( 2024:HHC:3072 ) account of such drug being adulterated or spurious or not of standard quality, as the case may be, shall be punishable with imprisonment for a term which shall not .
be less than five years but which may extend to imprisonment for life and shall also be liable to fine which shall not be less than ten lakh rupees or three times value of the drugs confiscated, whichever is more."
(b) xxx xxx
(c) xxx xxx
(d) xxx xxx."
16. Section 3 (f) of the DAC Act defines the terms 'manufacture', which reads as under:-
"(f) "manufacture" in relation to any drug [or cosmetic] includes any process or part of a process for making, altering, ornamenting, finishing, packing, labelling, breaking up or otherwise treating or adopting any drug [or cosmetic] with a view to its [sale or distribution] but does not include the compounding or dispensing [of any drug, or the packing of any drug or cosmetic,] in the ordinary course of retail business;
and "to manufacture" shall be construed accordingly."
17. To re-call the facts of the instant case, as per the investigation, petitioner Mukesh Saini is the partner of M/s Magnatek Enterprises, which was involved in manufacturing and sale of huge quantity of spurious drugs. The status report reveals that on the information received about sale of spurious drugs through vehicle bearing registration No.HP93-3196 by M/s Magnatek Enterprises Baddi, Solan, H.P., a team of Drug ::: Downloaded on - 31/05/2024 20:37:06 :::CIS 16 ( 2024:HHC:3072 ) Inspectors in the presence of witnesses recovered huge stock of .
spurious drugs, which is described as under:-
Sr. Name of Drug Batch No. Mfd. By as per label claim Quantity No.
1. GLIMESTAR- F05W002 M/s Mankind Pharma 1,51,200 PM1 Tablets Limited, Doring Block, tablets Bermiok Elaka, South Sikkim-737 126.
2. Rejunex-CD 3 K2300485 M/s Intas Pharmaceuticals 96,000 Tablets Ltd., Bghhey Khula, Majhitar, Tablets Sikkim.
18.
Perusal of the investigation reveals that above mentioned drugs on invoices of M/s Magnatek Enterprises did not match with the actual drugs which were transported by the firm. Thereafter, when the team reached the premises of M/s Magnatek Enterprises, one Balraj, who was found inside the firm, disclosed that he had dumped the scrap of the spurious drugs in two polythene bags near the firm on the directions of owner of firm Mukesh Saini (petitioner herein) and the team had recovered two polythene bags containing scrap of spurious drugs and when the said bags were opened, huge stock of defoiled strips, empty strips and scraps of product Glimestar PM1 tablets B No.F05W002 Mfg. date 01/2023 exp. 01/2024 Mfg. by Mankind Pharma Ltd. and of Rejunex CD3 Tablets manufactured by M/s Intas Pharmaceuticals and other material were recovered. The ::: Downloaded on - 31/05/2024 20:37:06 :::CIS 17 ( 2024:HHC:3072 ) team also recovered huge stock of spurious material, detail .
whereof is as under:-
1. Loose white & pink coloured oval biconvex bilayered tablets quantity 134.44 kg.
2. Glimi save M2 tablets B.No.GGLV23010, MFG-Apr.2023, Exp. Mar.2026, manufactured by M/s Eris Lifesciences limited, Amingaon, North Guawahti, District Kamrup- 781031 (Assam) quantity 15 tablets strip.
3. Empty blister, B. No. C35W010 and 7 defoiled strips/blisters of product Glimestar PM I, labeled as manufactured by M/s Mankind Pharma Ltd, Doring Block, Bermiok Elaka, South Sikkim.
4. One strip of Glimestar PMI B.No. F05W002 labelled as manufactured by M/s Mankind Pharma Ltd. and 1 GST invoice No. MEDA000440 dated 21.03.2023.
5. DVR of CCTV cameras from the manufacturing premises of M/s Magnatek Enterprises, Plot No. 74C(II), HPSIDC Industrial area Baddi, District Solan, H.P.
19. The investigating agency had also got recorded the statement of one Ram Sharan, the owner of transport godown, under Section 164 Cr.P.C. (Annexure R-5), who disclosed that he had received the medicines from M/s Magnatek Enterprises for transportation to Delhi. The invoices of M/s Magnatek Enterprises did not match with the actual physical stock of drugs which were transported by the firm. During investigation, the authorized signatory of M/s Mankind Pharma Ltd. was also associated on 20.07.2023 at the office of State Drugs Controller Baddi and after comparative analysis of control samples of M/s ::: Downloaded on - 31/05/2024 20:37:06 :::CIS
18 ( 2024:HHC:3072 ) Mankind Pharma Ltd. with drugs recovered at M/s Magnatek .
Enterprises, he submitted that the drugs which were transported and recovered from M/s Magnatek Enterprises were not truly the product of M/s Mankind Pharma Ltd. Sikkim and were counterfeit.
Thus, on 05.08.2023, a team of Drug Inspectors, Baddi, alongwith team of Drugs Control Department, Government of NCT, Delhi and CDSCO, Delhi, visited the premises of M/s Mehta Interstate Transport Corporation, Tees Hazari Metro Station Road, Delhi and recovered a consignment of spurious drugs, details whereof are as under:
Sr. Name of Drug Batch No. Mfd. By as per label claim Quantity No.
1. Glimestar M2 C31AV076 M/s Mankind Pharma 192x06x10 Tabs Limited, Doring Block, tabs (11520) Bermiok Elaka, South tablets Sikkim-737 126.
2. Candid Mouth 46220049 Glenmark Pharmaceuticals 450x2 5 ml paint Ltd., at Plot No. 38, 39, Sector-11, I.I.E., SIDCUL, Haridwar, Uttarakhand-
249403
3. Glimisave M2 GGLV22022 Eris Lifesciences Ltd., 44x10x15 Tabs Amingaon, North tablets (6600 Guwahati, District Kamrup- tablets) 781 031.
20. A representative of M/s Mankind Pharma Ltd. joined the investigation at Delhi and on comparative analysis of drugs, he disclosed that the recovered drugs did not match with their ::: Downloaded on - 31/05/2024 20:37:06 :::CIS 19 ( 2024:HHC:3072 ) original product, thus were counterfeit. On 18.08.2023, the team .
of Drug Inspectors visited the premises of the petitioner's firm, i.e. M/s Magnatek Enterprises, Baddi and during search, huge stock of the following spurious drugs were recovered from inside the manufacturing premises in presence of the petitioner/ accused:-
A. 611 scrap blisters of spurious drug 'Montair LC', labelled as B.No. AFB22P18, Mfg. By M/s Pure & Cure Healthcare Pvt. Ltd and Marketed By M/S Cipla Ltd.
B. One blister containing 15 tablets of spurious drug Triglimisave 2, B.No. GTMU23001 labelled as manufactured by Eris Lifesciences Ltd. C. Six blisters containing 15 tablets in each of ZEBIFLAM C, purported to be manufactured by M/s Silhos Pharma Ltd.
D. Four Brown coloured tape pre-printed with inscription 'Unichem Laboratories Ltd.' E. Various invoices and e-way bills suspected of spurious drugs.
F. Printed cartons of products, 'OSTEOBEN, MECAL Softgel capsules, ODOCAL-D3 Softgel capsules, CALBOR Softgel Capsules, labelledas manufactured by 'Sigma softgels & formulations Baddi, Distt. Solan H.P'.
21. The representative of the firm M/s Pure and Cure Healthcare Pvt. Ltd, Baddi, Distt. Solan H.P. also joined the investigation and they were asked to identify and verify the product, Montair LC Batch No. AFB22P18 labelled as Mfg. By ::: Downloaded on - 31/05/2024 20:37:06 :::CIS 20 ( 2024:HHC:3072 ) M/s Pure & Cure Healthcare Pvt. Ltd and Marketed By M/s Cipla .
Ltd, recovered from the premises of M/s Magnatek Enterprises.
The representative of the said firm after detailed physical analysis submitted that the above said product was not manufactured by M/s Pure & Cure Healthcare Pvt. Ltd and was spurious in nature. During further verification, it was found that the spurious product Montair LC Batch No. AFB22P18, whose 611 scrapped defoiled blisters were recovered from inside the firm M/s Magnatek Enterprises Plot No. 74 C(ii), HPSIDC Baddi, Distt. Solan H.P. on dated 18- 08-2023, was supplied by M/s Geet Enterprises to M/s Banke Bihari Pharma through GST invoice No. G0000213 dated 08-07-2023. It was also found that the spurious product Triglimisave 2, B.No. GTMU23001 manufactured by Eris Lifesciences Ltd. which was recovered from the premises of the firm M/s Magnatek Enterprises on 18.08.2023 was supplied by the firm M/s Geet Enterprises to firm M/s Sai Nirmal Enterprises vide GST Invoice No. G0000092 dated 10- 05-2023. On 21.08.2023, during search of M/s Magnatek Enterprises, the machines used for manufacturing of spurious drugs were seized and samples were taken for test and ::: Downloaded on - 31/05/2024 20:37:06 :::CIS 21 ( 2024:HHC:3072 ) analysis and on the same date, the representatives of M/s Pure .
& Cure Healthcare Pvt. Ltd and M/s Cipla Ltd., during investigation submitted the control sample of same drugs which were recovered from M/s Magnatek Enterprises and disclosed that the product recovered from M/s Magnatek Enterprises was spurious. The representative of the firm M/s Cipla Ltd, Baddi also joined the investigation and the representative of the said firm also submitted that Montair-LC is their registered brand and was being manufactured by M/s Pure and Care Healthcare Pvt.
Ltd., Haridwar on third party manufacturing basis and the representative of the said firm further submitted that the product was not manufactured by M/s Pure and Care Healthcare Pvt. Ltd.
and was spurious in nature. The representative of the firm M/s Sigma Softgel Formulations, Baddi had also disclosed that it had also filed a specific complaint against M/s Magnatek Enterprises with Superintendent of Police, Baddi and the petitioner's firm was involved in the manufacture of spurious drugs in the shape of soft gel formulations in the cartons with the name and style of Sigma Softgel Formulations.
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22. Thus, the investigation, prima facie, reveals that the .
petitioner, who is the partner in firm M/s Magnatek Enterprises, was knowingly involved in the manufacture and supply of the spurious drugs. Section 34(2)(1) of DAC Act provides that where an offence under this Act has been committed by the company and it is proved that the offence has been committed with the consent or connivance of any director, such director shall also be deemed to be guilty of that offence. The explanation provides that the director in relation to a firm means a partner in the firm.
The Section 34 (2) of DAC Act alongwith explanation reads as under:-
"(2) Notwithstanding anything contained in sub-
section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable o be proceeded against and punished accordingly. Explanation.--For the purposes of this section--
(a) "company" means a body corporate, and includes a firm or other association of individuals; and
(b) "director" in relation to a firm means a partner in the firm."
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23. Learned counsel counsel for the petitioner contended .
that as per the analysis reports of the sample received from the government analyst, Regional Drugs Testing Laboratory (Annexure R-22), the samples were declared to be of standard quality and the same were not spurious drugs, therefore, the petitioner deserves to be released on bail. Pertinently the definition of the 'spurious drugs' provided under the DAC Act is very wide. Section 17B of the DAC Act provides that a drug shall be deemed to be spurious if it is manufactured under the name which belongs to another drug, or if it is an imitation, or is a substitute for another drug, or if the label or the container bears the name of an individual or the company purporting to be the manufacturer of the drug, which individual or the company is fictitious or does not exist; or if it has been substituted wholly or in part by another drug or substance; or if it purports to be the product of a manufacturer of whom it is not truly a product.
Section 17B of the DAC Act reads as under:-
"17B. Spurious drugs.- For the purposes of this Chapter, a drug shall be deemed to be spurious.-
(a) if it is manufactured under a name which belongs to another drug; or
(b) if it is an imitation of, or is a substitute for, another drug or resembles another drug in a manner likely to deceive or bears upon it or upon its label or ::: Downloaded on - 31/05/2024 20:37:06 :::CIS
24 ( 2024:HHC:3072 ) container the name of another drug unless it is plainly and conspicuously marked so as to reveal its true character and its lack of identity with such other .
drug; or
(c) if the label or container bears the name of an individual or company purporting to be the manufacturer of the drug, which individual or company is fictitious or does not exist; or
(d) if it has been substituted wholly or in part by another drug or substance; or
(e) if it purports to be the product of a manufacturer of whom it is not truly a product."
24. In view of the above definition for the drug to be spurious, it is not necessary that it should be first subjected to any Chemical examination. It would be deemed to be a spurious drug if any of the above clauses are satisfied. Therefore, this contention of the learned counsel for the petitioner is devoid of any force.
25. As per Section 36 AC of the DAC Act, apart from giving an opportunity to the Public Prosecutor to oppose the application for release on bail, the other twin conditions (i) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; (ii) that he is not likely to commit any offence while on bail, have to be satisfied. The conditions are cumulative and not alternative.
The satisfaction contemplated regarding the accused being not ::: Downloaded on - 31/05/2024 20:37:06 :::CIS 25 ( 2024:HHC:3072 ) guilty has to be based on reasonable grounds. The expression .
"reasonable grounds" has not been defined in the Act but means something more than prima facie grounds. In the present case, the petitioner has failed to satisfy the conditions for grant of bail, as provided under Section 36 AC of the DAC Act.
26. Learned counsel for the petitioner next contended that the petitioner had undergone the rigors of police remand and now the investigation of the case is complete and nothing remains to be recovered from the petitioner, as such, he is entitled to be released on bail. However, this contention deserves to be rejected as from the investigation, prima facie, it is evident that the petitioner was knowingly involved in the manufacture and transportation of spurious drugs, knowing pretty well that the drugs were spurious and he has thus jeopardized the life of the innocent persons and therefore, the case would fall under the category of "heinous crime" affecting the life of innocent citizens and the fact that the investigation is complete does not entitle the petitioner to be released on bail keeping in view the seriousness of the offence. Moreover, the petitioner is resident of District Panchkula, Haryana and if released on bail, he may flee from ::: Downloaded on - 31/05/2024 20:37:06 :::CIS 26 ( 2024:HHC:3072 ) justice and it will be difficult to secure his presence during trial. It .
is needless to mention that the offences under the DAC Act are grave and serious in nature. Therefore, looking into the nature and gravity of offence and severity of punishment, in my considered view, the petitioner does not deserve to be released on bail.
27. Learned counsel for the petitioner lastly contended that the petitioner may be released on bail as he is suffering from disc space problem due to fusion of the anterior and posterior elements of L4-L5 vertebrae with loss of intervening disc space.
However, the ailment of the petitioner is not of such a nature which would call for his release on bail solely on health grounds.
Moreover, no material has been brought on record by the petitioner to show that he cannot be medically treated while in custody. Therefore, no case for the release of the petitioner on bail on medical grounds has been made out. However, keeping in view the ailment of the petitioner, the Jail Superintendent concerned is directed to provide him all sort of treatment as required and in case the situation demands, the Jail Superintendent is directed to make arrangements to take the petitioner under the ::: Downloaded on - 31/05/2024 20:37:06 :::CIS 27 ( 2024:HHC:3072 ) police escort to IGMC, Shimla for his treatment immediately.
.
One of the immediate family members of the petitioner is permitted to attend to the petitioner in case he is admitted in the hospital.
28. In view of the above discussion, the bail application is dismissed. Registry is directed to send a copy of this order to the concerned Jail Superintendent forthwith. Pending miscellaneous application(s), if any, also stands disposed of.
29. Be it stated that any expression of opinion given in this order does not mean an expression of opinion on the merits of the case and the trial Court will not be influenced by any ob-
servations made therein.
( Sushil Kukreja )
May 31, 2024 Judge
(VH)
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