Orissa High Court
Prof. Dr. Surendra Nath vs State Of Odisha ..... Opposite Party on 16 April, 2025
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.1628 of 2022
An application under Section 482 of the Code of Criminal
Procedure, 1973.
Prof. Dr. Surendra Nath ..... Petitioners
Senapati & Anr.
Mr. Prateik Parija, Adv.
along with
Mr.L.K. Maharana, Adv.
-versus-
State of Odisha ..... Opposite Party
Mr.Niranjana Maharana, A.S.C.
for the Vigilance Dept.
CRLMC No.1629 of 2022
Prof. Dr. Surendra Nath ..... Petitioners
Senapati & Anr.
Mr. Prateik Parija, Adv.
along with
Mr.L.K. Maharana, Adv.
-versus-
State of Odisha ..... Opposite Party
Mr.Niranjana Maharana, A.S.C.
for the Vigilance Dept.
Page 1 of 51
CORAM:
JUSTICE A.K. MOHAPATRA
Date of Hearing : 26.07.2024 ( in CRLMC No.1628 of 2022)
23.12.2024 (in CRLMC No.1629 of 2022)
Date of Judgment: 16.04.2025
A.K. Mohapatra, J. :
1. Heard learned counsel for the Petitioners as well as learned Additional Standing Counsel for the Vigilance Dept. Perused the CRLMC application, as well as other materials placed on record. Since the factual background of CRLMC No.1628 of 2022 is identical to that of CLMC No.1629 of 2022, both the matters are taken up together for consideration and the same are being disposed of by this common judgment. PRAYER:
CRLMC No. 1628 of 2022, filed with a prayer to quash the FIR registered as Vigilance Cell PS Case No. 89 dated 15.09.2016 corresponding to V.G.R. Case No. 86 of 2016 pending in the file of Ld. Special Judge (Vigilance), Cuttack for the commission of offences under Sections 13(1)(d) read with 13(2) of the Page 2 of 51 Prevention of Corruption Act, 1988 ("PC Act") along with Sections 120-B, 468, 471 of the Indian Penal Code, 1860 ("IPC"), CRLMC No. 1629 of 2022, filed with a prayer to quash the FIR registered as Vigilance Cell PS Case No. 87 dated 27.08.2016 corresponding to V.G.R. Case No. 82 of 2016 pending in the file of Ld. Special Judge (Vigilance), Cuttack for the commission of offences under Sections 13(1)(e) read with 13(2) of the Prevention of Corruption Act, 1988 ("PC Act") along with Sections 34 of the Indian Penal Code, 1860 ("IPC")
2. The present CRLMC applications, have been filed by invoking the inherent power of the court under section 482 of the Cr.P.C., by the petitioners who are not only doctors by profession are related to each other as husband and wife with a prayer to quash the proceeding borne out of the FIR registered as Cuttack Vigilance Cell PS Case No.87 and 89 respectively for offences as alleged in the FIRs files along with the respective CRLMC applications on the grounds as narrated in such applications. At Page 3 of 51 the outset, counsel for the Petitioner alleged victimization of the Petitioner and to block the promotional prospects of the Petitioner. It was also contended that the FIRs have been registered without event conducting a preliminary enquiry with regard to the veracity of the allegation. Although, the present Petitioner was arrested on 16.09.2016, but later on he was enlarged on bail by the order dated 04.10.2016 passed by this Court in BLAPL No. 5920 of 2016. Thus, the counsel for the Petitioners tried to demonstrate that the very continuance of the proceeding would be gross abuse of process of law.
3. Before proceeding with the adjudication of the matter at hand, it would be most expedient to enumerate the prosecution case, as gathered from the FIRs filed on 15.09.2016 and 27.08.2016, in a succinct manner.
FACTUAL BACKGROUND OF CRLMC No.1628 of 2022
4. Initially, an FIR was lodged against the present Petitioner No. 1, Prof. Dr. Surendra Nath Senapati and Petitioner No. 2, Prof. Dr. Dipti Rani Samanta, alleging that the present petitioners abused their official position and showed undue favour to M/s J.B.S.L Chemical & Pharmaceuticals, Mangalabag, Cuttack Page 4 of 51 (herein referred to as "JBSL"). The petitioners, Prof. (Dr.) Surendra Nath Senapati (Petitioner No. 1), HOD Radiation Oncology and his wife Prof. (Dr.) Dipti Rani Samanta (Petitioner No. 2), Asst. Professor, Medical Oncology, are renowned doctors who have been practising at the Acharya Harihar Regional Cancer Centre, Cuttack now Acharya Harihar Post Graduate Institute of Cancer (herein referred to as "AHRCC") for more than two decades.
5. It has been alleged that after the introduction of the Odisha State Treatment Fund ("OSTF") and the Biju Krushak Kalyan Yojana ("BSKY"), which enabled cancer patients in the state to claim reimbursements from the Government of Odisha for cancer medicines purchased under prescription by providing the patients with a cashless facility whereby the cost of the drugs was paid to the empanelled shops by the Government of Odisha after verification of the prescription/bills by a treating doctor, the present petitioners have been prescribing high-cost chemotherapy medicines manufactured by JBSL, which is a proprietorship concern of the above-named Sudhanshu Das. Further, to bolster such allegations, a comparative chart has been provided in the FIR showing the price of anti-cancer drugs under the JBSL and Page 5 of 51 those by other known companies sold by empanelled shops. Such a comparative table divulges the fact that anti-cancer drugs by JBSL were priced higher than other similar drugs by various drug manufacturers.
6. The FIR also reveals that the present petitioners have exploited the aforementioned government schemes by conniving with the above-named Sudhanshu Das, proprietor of JBSL, and manufacturing and marketing chemotherapy medicine under the brand name of J.B.S.L. Chemical and Pharmaceuticals Pvt. Ltd. from May of 2013 onwards. Additionally, the enquiry has revealed that even though JBSL marketed the Chemotherapy Drugs under the brand of JBSL, however, the Accused No. 3 Sudhansu Das instructed M/s Admac Life Sciences, Solan, Himachal Pradesh, one of the manufacturers of the chemo drugs in question, to print the name and address of the marketer of the said drugs as J.B.S.L. Chemical and Pharmaceutical (Oncology Division), SCF-46, Sec-70, Mohali (Punjab) and another manufacturer Celon Laboratories Pvt. Ltd. to also print the address of the manufacturer as J.B.S.L. Chemical and Pharmaceutical, Vyas Complex, Kotlanala, Dist. Solan, Himachal Pradesh. There has been a further insinuation that the above- Page 6 of 51 named Sudhansu Das (Accused No.3) had also instructed the aforementioned manufacturers to print the MRP of the chemo drugs in question at an exorbitant price despite the manufacturing costs of such drugs being low. Additionally, the FIR mentions that the investigating authorities have ascertained that not only does JBSL not have any drug licenses issued in its name in respect of its establishments at Mohali and Solan, but also that no such business establishments of JBSL exist at Mohali and Solan.
7. Additionally, the FIR alleges that the present petitioners, being fully aware of the aforesaid context, proceeded to prescribe only the anti-cancer drugs of the JBSL brand, which were available at an inflated price when compared to other similar types of anti-cancer drugs, by other competitors, that were available in the market during the period between May of 2013 to December of 2015 when the state government took a decision to instead procure anti-cancer medications directly from the manufacturers. The FIR further reveals that after such a decision of the state government, the present petitioners abruptly stopped prescribing Chemotherapy drugs under the JBSL brand and, the JBSL proprietorship concern also suddenly stopped marketing anti-cancer drugs under their brand name.
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8. In such backdrop, it has finally been alleged that the present petitioners have abused their official positions and have knowingly prescribed the Chemotherapy drugs under the JBSL brand that were ,exorbitantly priced, and by doing so they have connived with one Sudhansu Das i.e. the Accused No. 3, and have accumulated unlawful pecuniary gains to the tune of Rs. 26,85,557/- (Rupees Twenty Six Lakh Eighty Five Thousand Five Hundred and Fifty Seven only), thereby causing a resultant loss of an equivalent amount to the government exchequer which is not only against public interest but also has resulted in an exhaustion of funds under the OSTF and BKKY schemes of the government and in turn, incomplete treatment of many of the poor patients covered under the aforesaid schemes.
FACTUAL BACKGROUND OF CRLMC No.1629 of 2022
9. Similarly, CRLMC No.1629 of 2022 arises out of Cuttack Vigilance P.S. Case No.87 of 2016. In the Vigilance F.I.R., wherein both the Petitioners have been shown as accused, it has been alleged that the Petitioners, by abusing their official position and by showing undue official favour to M/s JBSL firm, have recommended the patients to purchase costly misbrand chemo injections of the abovenamed firm and thereby causing huge loss Page 8 of 51 of government money of Odisha State Medical Corporation Ltd. On such allegation, a Vigilance enquiry was conducted. During such enquiry, simultaneous searches were conducted on 09.08.2016 in the residential flat of the abovenamed accused persons i.e. Flat bearing No.301, Majestic Tower, Sana Zobra, Cuttack, AHRCC at SCB Medical College Premises, Cuttack as well as in the shop of M/s JBSL at Kathagola Sahii, Cuttack on the strength of search warrants issued by the Spl. Judge, Vigilance Cuttack.
10. The F.I.R. in Vigilance Case No.87 of 2016 further reveals that both the accused persons are in possession of huge assets disproportionate to their known sources of income. Hence, as per direction enquiry was conducted to work out the quantum of disproportionate assets in possession of the Petitioners. Such enquiry further reveals that both the Petitioners are employees of A.H.R.C.C., Cuttack which is an autonomous body and has been registered under the Societies Act. The employees of AHRCC are under the Payroll of State Government and as such they are Public Servants. It has also been alleged that both the Petitioners are filing IT returns regularly showing income from salary, profession (Private Practice and Clinical Trials), house property Page 9 of 51 and other sources. Although, they are required to submit their property returns as per the Government Servants' Conduct Rules, 1959, however, they have never submitted property returns during their service period. Moreover, on the basis of the search conduct on 09.08.2016 and on further enquiry, the assets, income and expenditure of the accused persons were ascertained by referring to different authorities. Their income from salary, profession, house property and other sources have also been duly considered after deduction of expenditure regarding payment of the tax liabilities and other heads. As per the table appended to the F.I.R., the assets of the Petitioners have been valued at Rs.3,35,35,022.00/-. Similarly, the total income of the Petitioners from all sources has been assessed at Rs.2,43,31,335.00/-. Whereas, the expenditure of the Petitioners has been assessed at Rs.2,02,99,012.00/-. Accordingly, the Vigilance authorities have come to a conclusion that the Petitioners possess asset disproportionate to their known sources of income to the tune of Rs.2,95,02,699.00/-. As such, a case has been registered against the present Petitioners for commission of an offence punishable under Section 13(2) read with 13(1)(e) of the P.C. Act, 1988 read with Section 34 of the I.P.C.
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11. On a careful analysis of the factual background of both the cases, this Court at the outset, would like to observe that the allegation made in the Vigilance P.S. Case No.87 of 2016 is consequential to the allegation made in Cuttack Vigilance P.S. Case No.89 of 2016. Moreover, the Petitioners in both the cases are same and that the factual background of both the cases are identical in nature. As has been observed hereinabove, as a result of the allegation made in F.I.R. No.89 of 2016, it is alleged that the Petitioners, by abusing their official position, have amassed ill-gotten money and have acquired assets from such ill-gotten money which are disproportionate to their known sources of income. Thus, for the sake of convenience, this Court is of the considered view that both the cases be decided together.
12. Heard Mr. Prateik Parija along with Mr. L.K. Maharana, learned Counsels appearing for the Petitioners. At the outset, learned Counsel appearing for the Petitioners unequivocally denied all allegations against the Petitioners, asserting that these accusations are false and, at best, fabricated. Regarding the prosecution's claim that JBSL's anti-cancer drugs are significantly more expensive than similar drugs available in the market, learned Counsel appearing for the Petitioners argued that these Page 11 of 51 allegations are merely speculative. To substantiate this position, learned Counsel appearing for the Petitioners contended that the methodology used by the opposite parties to demonstrate that JBSL's chemotherapy drugs are more expensive than the average price of comparable drugs produced by other companies is fundamentally flawed and unreliable.
13. Learned Counsel appearing for the Petitioners objected to the methodology employed by the Vigilance Dept. to calculate the average cost of chemotherapy drugs available in the market and alleged the same to be arbitrary and whimsical. Learned Counsel for the Petitioners further argued that the Vigilance Dept. simply added the prices of three different chemotherapy drugs from three different companies and divided the total by three to present an average price. It was further contended that this approach does not provide an accurate reflection of the actual prices of chemotherapy drugs in the market. Additionally, Learned Counsel for the Petitioners challenged the pricing information for various chemotherapy drugs provided by the Vigilance Dept., asserting that the Vigilance Dept. has arbitrarily assigned different prices rather than relying on the accurate price indicators available under the "PHARMA SAHI DAAM" section on the National Page 12 of 51 Pharmaceuticals Pricing Agency (NPPA) website. Moreover, it was submitted that it is also not known as to which experts, if any, were consulted by the investigating agency before arriving at the prices of the various chemotherapy drugs mentioned in the FIR. Learned Counsel for the Petitioner at this stage submitted that the investigating office should have consulted either the Drugs Controller of Odisha or the NPPA or the DPCO (Drug Price Control Orders), i.e. the only authorities on the price control of various chemotherapy drugs, before illustrating the prices of different chemotherapy drugs available in the market.
14. Learned Counsel appearing for the Petitioners further argued that within each category of chemotherapy drugs or anti- cancer medications, multiple companies manufacture and market similar drugs at varying prices. To illustrate this point, Learned Counsel for the Petitioners noted that the drug Paclitaxel, sold by JBSL under the name JBTAXEL-260, was priced at Rs.5,595 per vial. In contrast, the same drug, sold by Lupin Pharmaceuticals as PACLISTAR 260, was priced at Rs.9,280, and by Intas Pharmaceuticals Ltd. as CYTAX-260, at Rs.9,727. Learned Counsel appearing for the Petitioners emphasized that these prices are nearly double of what JBSL charged for the same drug. To Page 13 of 51 further substantiate this claim, Learned Counsel appearing for the Petitioners has presented a detailed comparative chart, included as Annexure-5 to the CRLMC application No. 1628 of 2022, showing the prices of various generic chemotherapy medications from different reputed brands vis-a-vis that of JBSL. Learned Counsel appearing for the Petitioners contended that a brief review of this chart demonstrates that JBSL's prices were generally reasonable and, in some cases, even lower compared to the prices charged by other reputed companies for similar chemotherapy drugs.
15. With regard to the pricing of the Chemotherapy drugs in question, Learned Counsel appearing for the Petitioners also contended that the price ceiling of various medicines in India has been fixed by the Ministry of Chemicals and Fertilizers, Department of Pharmaceuticals, Government of India, by adopting two different methods. Firstly, by DPCO (Drug Price Control Orders) issued under section 3 of the Essential Commodities Act, 1955 on 15.05.2013. Secondly, by the NPPA (National Pharmaceuticals Pricing Authority). In course of argument, he further referred to a comparative chart, containing the prices of various chemotherapy drugs by JBSL vis-a-vis the Page 14 of 51 price ceiling fixed under DPCO and NPPA, under Annexure 6 to the CRLMC application No. 1628 of 2022. Referring to the same, the Learned Counsel appearing for the Petitioners submits that a cursory glance at the chart will show that none of the anti-cancer drugs under the JBSL brand breached the prescribed price ceiling.
16. Learned Counsel appearing for the Petitioners further asserts that the Opposite Party (Vigilance Department) has not claimed that the anti-cancer medications marketed under the JBSL brand were ineffective, counterfeit, spurious, or less effective compared to other similar drugs available in the market. Moreover, during the investigation, the vigilance department seized the drugs in question from JBSL and sent them to the State Drug Testing and Research Laboratory in Bhubaneswar. Referring to the report from the drug testing authority, provided as Annexure-4 to the present application, Learned Counsel appearing for the Petitioners submitted that the report confirms that the tested drugs met the standard quality requirements as defined under the Drugs and Cosmetics Act, 1940.
17. In response to the above contentions, Mr.Niranjan Maharana, learned Additional Standing Counsel for the Vigilance Page 15 of 51 Dept., Odisha submitted that while prescribing a specific drug for treating any condition or disease is within the professional discretion of the treating doctor. But prescribing a particular brand of anti-cancer medication--especially one that lacks a legitimate manufacturing address and is priced significantly higher than similar drugs available in the market--can constitute an abuse of official position by the treating doctor. This is particularly pertinent when considering poor patients who benefitted from government schemes such as OSTF and BKKY. Learned Counsel Appearing for the State-Opposite Party argued that such practices could very well implicate the petitioners in offences punishable under the Prevention of Corruption Act, 1988 (PC Act). Consequently, it was contended that the petitioners' assertion that the prices of JBSL chemotherapy drugs are within the ceiling set by DPCO and NPPA is irrelevant to the issue at hand.
18. Additionally, Learned Counsel appearing for the State- Opposite Party raises concerns about how the petitioners acquired knowledge about the efficacy of the chemotherapy drugs and injections under the JBSL brand, particularly when other doctors did not have access to such information. He further contends that Page 16 of 51 the effects of other chemotherapy drugs available in the market are widely recognized and that these alternatives are offered at a lower cost compared to JBSL's drugs. This discrepancy raises questions about the basis for the petitioners' preference for JBSL products, suggesting a lack of transparency or justification for their choice.
19. Regarding the allegation that the petitioners exclusively prescribed expensive drugs under the JBSL brand, Learned Counsel Appearing for the Petitioners has contested the validity of these claims. It was argued that contrary to the allegations, the petitioners prescribed drugs from various other brands during the relevant period. Learned Counsel appearing for the Petitioners explained that drug prescriptions were made on a case-by-case basis, considering the dosage requirements and the health conditions of the patients. Furthermore, Learned Counsel appearing for the Petitioners provided evidence showing that the petitioners prescribed Paclitaxel from 19 different companies, Oxaliplatin from 15 different companies, Docetaxel from 11 different companies, Carboplatin from 10 different companies, and Epirubicin from 10 different companies. He further contended that these facts undermine the prosecution's allegation Page 17 of 51 that the Petitioners exclusively prescribed high-cost JBSL drugs for illegal enrichment. This assertion, according to learned Counsel for the Petitioners, is therefore unfounded and lacks merit in light of said submission.
20. Additionally, it was argued on behalf of the Petitioners has contended that the allegation that the present petitioners were the only doctors prescribing chemo drugs under the JBSL is wholly unfounded. It was clarified that, at the relevant time, three doctors from the Medical Oncology department and three doctors from the Radiation Oncology department were involved in prescribing chemotherapy drugs to patients. Given that Petitioner Nos. 1 and 2 were the senior-most doctors and heads of the Medical Oncology and Radiation Oncology departments respectively, they naturally treated the highest number of patients attending AHRCC. Consequently, they prescribed more JBSL drugs than their colleagues. Furthermore, Learned Counsel Appearing for the Petitioners highlighted that three other doctors at AHRCC--Dr. Niharika Panda, Dr. Prasanta Kr. Parida, and Dr. Lalmohan Soy--were also prescribing anti-cancer drugs under the JBSL brand during the relevant period. Thus it was contended Page 18 of 51 that the allegations of undue favouritism towards JBSL by the petitioners are baseless and unsubstantiated.
21. Learned Counsel appearing for the State-Opposite Party, while addressing the issue of the prescription of anti-cancer drugs by doctors at AHRCC, submitted that among the five Oncology doctors at AHRCC, Cuttack, a total of 2646 prescriptions for JBSL brand chemotherapy injections/drugs were made. Of these 2,646 prescriptions, 2641 were issued by the present petitioners, while the remaining five prescriptions only were made by the three other doctors--two each by Dr. Prashanta Kumar Parida and Dr. Niharika Panda, and one by Dr. L. M. Soy. Learned Counsel appearing for the State-Opposite Party contended that this distribution of prescriptions underscores that the petitioners accounted for the vast majority of prescriptions for JBSL brand chemotherapy drugs. Consequently, it was argued that the petitioners cannot justify their actions by claiming that other AHRCC doctors also prescribed JBSL brand drugs, given that the vast majority of such prescriptions were issued by the petitioners themselves.
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22. Learned Counsel appearing for the Petitioners, in response to the above, submitted that the prosecution has completely failed to address the fact that there was any guideline or instruction from either the Department of Health and Family Welfare, Government of Odisha, or any other department of the state government, or AHRCC regarding any particular chemotherapy drug which could be prescribed by the treating doctors or at what price should such drugs be prescribed (other than the price ceiling set by DPCO and NPPA as discussed earlier). Therefore, the present petitioners were free to prescribe chemotherapy drugs of any brand as long as the manufacturer/marketer of the said drugs possessed the appropriate licenses by the Drug Controller of the state, and such drugs were available at the empanelled shops, all of which JBSL adhered to. Learned Counsel appearing for the Petitioners further emphasized that DPCO and NPPA are the sole authorities responsible for regulating the pricing and quality of chemotherapy drugs. The NPPA works in coordination with state authorities to enforce these regulations, including the procurement and analysis of drug samples available in the market. During the relevant period from 2013 to 2016, no violations by JBSL were reported. Moreover, Learned Counsel Appearing for the Petitioners Page 20 of 51 contended that if any violations were to occur, the NPPA's remedy would involve sanctioning the offending party and recovering the overcharged amount, along with interest at a rate of 15% per annum. In cases of non-compliance, the concerned collector would be instructed to recover the outstanding amount under the Essential Commodities Act, 1955. Further while elaborating the factual background of the present case, the counsel for the Petitioners argued that the prosecution has not demonstrated any instance where JBSL was found in violation of these regulations.
23. At this stage, Learned Counsel appearing for the Petitioners addressed the prosecution's allegations that the petitioners' intentional prescription of higher-priced JBSL chemotherapy drugs, compared to similar drugs from other companies available in the market, resulted in many impoverished patients--who were enrolled as beneficiaries of the OSTF and BKKY schemes--being unable to complete their treatment. The prosecution's claim that the high cost of JBSL drugs depleted state funds allocated for these schemes, learned Counsel appearing for the Petitioners in reply, strongly disputed these claims as unfounded. It was submitted that typically, a patient Page 21 of 51 requires six rounds of chemotherapy for complete treatment, with each cycle averaging around Rs.10,000. This results in a total treatment cost of approximately Rs.60,000. Under the state government schemes, OSTF and BKKY, each patient was sanctioned a total sum of Rs.1,00,000 for their treatment. Therefore, Learned Counsel appearing for the Petitioners contended that the prosecution's claim that patients could not complete their treatment due to the high price of JBSL drugs is entirely untenable, given that the funds provided under these schemes were more than sufficient to cover the cost of treatment.
24. Learned Additional Standing Counsel for the Vigilance Dept. argued that, contrary to the petitioners' assertions, the costs associated with a typical cancer treatment protocol extends well beyond mere chemotherapy injections. Comprehensive cancer care entails substantial additional expenses, including pathological tests, supportive therapies, and various other essential medications. When these significant costs are factored in alongside the notably high and exorbitant prices of JBSL drugs, the financial support provided through state government schemes proves inadequate. Consequently, many patients, who are already in challenging circumstances, find themselves unable to complete Page 22 of 51 their cancer treatment. This inadequacy in financial assistance places these patients in a particularly vulnerable and disadvantaged position, exacerbating their plight and undermining the effectiveness of the available support schemes.
25. Additionally, learned Additional Standing Counsel for the Vigilance Dept. submitted that the investigation has found that the manufacturer's address that were printed on the JBSL drugs/injections, i.e. J.B.S.L. Chemical and Pharmaceutical (Oncology Division), SCF-46, Sec-70, Mohali (Punjab) and J.B.S.L. Chemical and Pharmaceutical, Vyas Complex, Kotlanala, Dist. Solan, Himachal Pradesh, as business addresses in Solan and Punjab, are actually non-existent and false. Moreover, Learned Counsel for the State-Opposite Party submitted that the concerned Drug Authorities of the State of Punjab and Himachal Pradesh have made it clear that no drug licenses were issued in favour of said addresses in their respective states.
26. In response to the prosecution's claims that JBSL was manufacturing drugs without the necessary licenses, Learned Counsel appearing for the Petitioners contended that JBSL is not, as alleged, the manufacturer of the drugs in question. Instead, Page 23 of 51 JBSL serves merely as the marketer of these drugs, which are actually manufactured by Admac Life Sciences in Solan and Celon Laboratories Pvt. Ltd. in Telangana. Furthermore, Learned Counsel Appearing for the Petitioners emphasised that these manufacturers do not produce the drugs exclusively for JBSL. Regarding the issue of appropriate drug licenses, Learned Counsel appearing for the Petitioners argued that JBSL holds all the necessary licenses issued by the State Government. It was also submitted that JBSL supplied their drugs to empanelled shops selected by the AHRCC.
27. Additionally, Learned Counsel appearing for the Petitioners asserted that all the drugs sold by JBSL were priced within the cap set by NAPA, as previously demonstrated. Moreover, in response to the allegations that JBSL lacks a physical office at the addresses listed on the packaging of its chemotherapy drugs i.e. in Solan and Himachal Pradesh, and that JBSL does not possess the required drug licenses for these locations, Learned Counsel appearing for the Petitioners contended that even if these claims are assumed to be true, the petitioners cannot be held accountable. This is because the petitioners are neither involved in the manufacturing or marketing Page 24 of 51 of the drugs in question nor are they partners in JBSL. However, Learned Counsel appearing for the Petitioners further submitted that it is an established fact that JBSL Chemicals and Pharmaceuticals, Cuttack, was duly registered with the Drug Controller of Odisha and was, therefore, authorized to supply its drugs within the state of Odisha.
28. Furthermore, regarding allegations of Criminal Conspiracy between the present petitioners and Accused No.3, learned Additional Standing Counsel for the Vigilance Dept., submitted that there exists a definite criminal conspiracy between the present petitioners and Accused No. 3, Sudhansu Das, who is the proprietor of M/s JBSL Chemical and Pharmaceuticals, Mangalabag, Cuttack. Learned Additional Standing Counsel for the Vigilance Dept. submits that there were prior acquaintances between Accused No. 3 and the present petitioners, especially Petitioner No. 2, who had a cabin near the proprietorship of the Accused No. 3 in the year 2008. Thereafter, it has been contended that the Accused No. 3 connived with the present petitioners and started manufacturing and marketing the Chemo Drugs under the brand name of JBSL, from May of 2013.
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29. To further substantiate the allegations that the petitioners deliberately showed undue favour to Accused No. 3, Sudhansu Das, learned Additional Standing Counsel for the Vigilance Dept. argued that the chemotherapy medications under the JBSL brand prescribed by the petitioners were exclusively available at JBSL Chemicals and Pharmaceuticals, Mangalabag, Cuttack. He further submitted that patients often faced difficulties in procuring the prescribed JBSL drugs. Furthermore, he would also argue that these chemotherapy drugs under the JBSL brand were not available under the "Nirmaya Scheme" or at any other government-empanelled shops, but exclusively through the proprietorship of Accused No. 3. It was also contended that the Petitioners continued to prescribe JBSL drugs until 2015 when the State Government decided to directly procure medications from the manufacturing companies.
30. Learned Additional Standing Counsel for the Vigilance Dept. further submitted that this conduct clearly demonstrates the petitioners' undue favour and accommodation towards co-accused Sudhansu Das, thereby establishing a criminal conspiracy between the parties. In course of argument, learned Additional Standing Counsel for the Vigilance Dept. also questioned how the Page 26 of 51 petitioners became aware of the chemotherapy drugs under the JBSL brand. It was argued that the petitioners have failed to identify any authorized or widely circulated source from which they could have obtained information about these drugs. In contrast, information regarding the efficacy of other chemotherapy drugs, which are priced more favourably than the JBSL brand, was readily available in various national and international journals and magazines.
31. Refuting the above claims of the Opposite Party regarding the allegation of a criminal conspiracy between the present petitioners and Accused No. 3, Sudhansu Das, Learned Counsel appearing for the Petitioners unequivocally controverted such claims by asserting that the petitioners have no involvement whatsoever in the proprietorship concern of Accused No.3. He further contended that the present petitioners are renowned doctors of Oncology practicing at AHRCC for more than two decades while Accused No.3-Sudhansu Das, who is the proprietor of JBSL, started marketing Chemotherapy drugs under the JBSL brand only in the year 2013. In such view of the matter, Learned Counsel Appearing for the Petitioners submitted that any illegalities committed by Sudhansu Das-Accused No. 3, if at all, Page 27 of 51 cannot be vicariously attributed to the petitioners, especially in the context of the fact that the present petitioners are practising professionals who do not have any role in either the manufacturing or the procurement, or even the marketing of the anti-cancer drugs in question.
32. Lastly, Learned Counsel appearing for the Petitioners submitted that the FIR against the Petitioners was filed in 2016. Since then, more than six years have elapsed, during which numerous investigations have been conducted without arriving at any definite conclusion. Additionally, a second FIR (arising out of Vigilance PS Case No. 87 which was filed against the petitioners on 27.08.2016) was also registered against the present petitioners wherein no chargesheet has yet been filed. Learned Counsel appearing for the Petitioners further contended that this prolongation of criminal proceeding has caused significant prejudice and hardship to the Petitioners, affecting both their personal and professional lives. It was submitted that due to the long pendency of the present case, the Petitioner No.1, who was in contention for being promoted to the post of Medical Superintendent, AHRCC and being appointed as Appraiser on the National Board of Examinations in Medical Sciences (NBEMS) Page 28 of 51 for NEET-PG 2021, could not get the posts due to the pendency of the present matter. Similarly, Petitioner No.2 has also suffered professional stagnation owing to the long delay in finalising the present criminal proceeding. The inaction of the Opposite Parties has also severely damaged the reputation of the petitioners, who are esteemed professionals in their respective fields. It has been further argued that the pendency of these proceedings has resulted in professional setbacks for the Petitioners, compounding the worries of the Petitioner.
33. The Opposing Party-Vigilance Dept., protesting the petitioners' prayer, have relied on a judgment of the Hon'ble Supreme Court in Niranjan Hermachandra Sashittal and Anr. Vs. State of Maharashtra reported in (2013) 4 SCC 642. Learned Additional Standing Counsel for the Vigilance Dept. submits that the Apex court in the above judgment has observed that in cases where Disproportionate Assets are involved or Misappropriation of money is involved, or in Corruption cases, more time is required for the completion of the investigation and Trial. Additionally, he also submitted that the investigation in the matter has taken a longer time to complete due to many reasons such as the transfer of Investigating Officers, collection and verification Page 29 of 51 of a large number of documents and materials, and the surge of COVID-19 cases in the state for a period of time.
34. Furthermore, reference was also placed on the decision of the Hon'ble Supreme Court in M/s Niharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and Ors. reported in (2021) SCC OnLine (SC) 315, wherein the Hon'ble Apex Court while fixing certain guidelines had held that when an offence is prima facie made out from the FIR/Investigation, the High Court while exercising power u/s 482 of CrPC or under Article 226 of the Constitution of India should not interfere with the investigation and should not quash the criminal proceedings at a nascent stage. In such view of the matter, the learned counsel for the Vigilance Dept. submitted that it is paramount in matters involving disproportionate assets that a thorough, fair and proper investigation is conducted, therefore, the High Court should dismiss the prayer of the petitioners for quashing the present criminal proceeding and instead issue appropriate directions for completion of the investigation and trial as expeditiously as possible or within a reasonable period of time so as to ensure that the right of the accused to a speedy trial is maintained vis-a-vis the larger societal and public interest at stake. Accordingly, Page 30 of 51 learned counsel for the Vigilance Dept. submitted that the prayer of the petitioners for quashing the criminal proceedings, at this stage, be rejected.
35. Learned Counsel appearing for the Petitioners, in reply, submitted that the law is fairly well settled that in cases where the continuance of the criminal proceedings against the accused persons would serve no purpose and the chance of conviction is bleak considering the fact that the quality of enquiry conducted is flawed, then, in such cases, the criminal proceeding is liable to be quashed. In support of his contention, Learned Counsel Appearing for the Petitioners referred to the pronouncements of the Hon'ble Supreme court in Santosh De Vs. Archana Guha & Ors. reported in 1994 2 BLJR 1271, wherein while entertaining the appeal, the Hon'ble Supreme Court declined to interfere with the order of the High Court, quashing the impugned Criminal Proceeding, and observed that :-
"12. In our opinion, this unexplained delay of eight years in commencing the trial by itself infringes the right of the accused to speedy trial. In the absence of any material to the contrary, we accept the finding of the High Court that this delay of eight years is entirely and exclusively on account of the default of the prosecution. Once that is so Page 31 of 51 there is no occasion for interference in this appeal. It is accordingly dismissed."
36. The Learned Counsel for the Petitioners has also relied on the judgment of this court in Nalinikanta Muduli Vs. State of Orissa reported in 2004 (I) OLR 402 and Mahesh Chandra Pattnaik Vs. State (Vigilance Department) reported in 2010 (I) OLR 631, wherein the right of the accused to a speedy trial has been upheld against an inordinate delay in concluding the trial and investigation respectively.
37. In addition to the above, the Learned Counsel Appearing for the Petitioners has also placed reliance on the following judgement of Hon'ble Supreme Court in Hasmukhlal D. Vora and Anr. Vs. The State of Tamil Nadu reported in AIR 2023 SC 102, wherein the Hon'ble Supreme Court while setting aside the impugned order of the High Court and quashing the impugned criminal proceeding have held that:
"24. In the present case, the Respondent has provided no explanation for the extraordinary delay of more than four years between the initial site inspection, the show cause notice, and the complaint. In fact, the absence of such an Page 32 of 51 explanation only prompts the Court to infer some sinister motive behind initiating the criminal proceedings.
25. While inordinate delay in itself may not be ground for quashing of a criminal complaint, in such cases, unexplained inordinate delay of such length must be taken into consideration as a very crucial factor as grounds for quashing a criminal complaint.
26. While this court does not expect a full-blown investigation at the stage of a criminal complaint, however, in such cases where the accused has been subjected to the anxiety of a potential initiation of criminal proceedings for such a length of time, it is only reasonable for the court to expect bare-minimum evidence from the Investigating Authorities.
27. At the cost of repetition, we again state that the purpose of filing a complaint and initiating criminal proceedings must exist solely to meet the ends of justice, and the law must not be used as a tool to harass the accused. The law, is meant to exist as a shield to protect the innocent, rather than it being used as a sword to threaten them.
CONCLUSION
28. It must be noted that the High Court while passing the impugned judgment, has failed to take into consideration to the facts and circumstances of the case. While it is true Page 33 of 51 that the quashing of a criminal complaint must be done only in the rarest of rare cases, it is still the duty of the High Court to look into each and every case with great detail to prevent miscarriage of justice. The law is a sacrosanct entity that exists to serve the ends of justice, and the courts, as protectors of the law and servants of the law, must always ensure that frivolous cases do not pervert the sacrosanct nature of the law."
38. In such view of the matter, Learned Counsel appearing for the Petitioners contended that the unexplained and inordinate delay of such a long period of over eight years constitutes a crucial ground that must be taken into account while considering the prayer for quashing the present criminal proceeding. It was further contended that even if the allegations in the FIR are taken at their face value and accepted in its entirety, no prima facie offence is constituted nor any case is made out against the present Petitioners. Therefore, it was contended that the preset criminal proceeding bearing Vigilance Cell PS Case No. 89 dated 15.09.2016 corresponding to V.G.R. Case No. 86 of 2016 pending in the file of Ld. Special Judge (Vigilance), Cuttack for the commission of offences under Sections 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 ("PC Act") Page 34 of 51 along with Sections 120-B, 468, 471 of the Indian Penal Code, 1860 ("IPC"), be quashed.
39. Before proceeding with the final adjudication of the matter at hand, this court would also like to place reliance on a few judgements which are relevant in the context of the present case in the following paragraphs;
40. In Directorate of Revenue and another v. Mohammed Nisar Holia, reported in (2008) 2 SCC 370, the Hon'ble Supreme Court explicitly recognises the right to not to be disturbed without sufficient grounds as one of the underlying mandates of Article 21 of the Constitution. Thus, the requirement and need to balance the law enforcement power and protection of citizens from injustice and harassment must be maintained. It goes without saying that the State owes a duty to ensure that no crime goes unpunished but at the same time it also owes a duty to ensure that none of its subjects are unnecessarily harassed.
41. In State of Andhra Pradesh v. Golconda Linga Swamy reported in (2004) 6 SCC 522, a two-Judge Bench of the Hon'ble Apex Court elaborated on the types of materials the Page 35 of 51 High Court can assess to quash an FIR. The Court drew a fine distinction between consideration of materials that were tendered as evidence and appreciation of such evidence. Only such material that manifestly fails to prove the accusation in the FIR can be considered for quashing an FIR. The Court held:-
"5. ...Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
6. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866 : 1960 Cri LJ 1239, this Court summarised some categories of cases where inherent power can and Page 36 of 51 should be exercised to quash the proceedings : (AIR p. 869, para 6)
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt should not be an Page 37 of 51 instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death....."
42. Next, the Hon'ble Apex Court in Pankaj Kumar v. State of Maharashtra reported in (2008) 16 SCC 117 quashed the criminal proceedings on account of "unwarranted prolonged investigations" that caused inordinate delay. It was held that;
"24. Tested on the touchstone of the broad principles, enumerated above, we are of the opinion that in the instant case, the appellant's constitutional right recognised under Article 21 of the Constitution stands violated. It is common ground that the first information report was recorded on 12-5- 1987 for the offences allegedly committed in the year 1981, and after unwarranted prolonged investigations, involving aforestated three financial irregularities; the charge- sheet was submitted in court on 22-2-1991. Nothing happened till April 1999, when the appellant and his Page 38 of 51 deceased mother filed criminal writ petition seeking quashing of proceedings before the trial court.
25. Though, it is true that the plea with regard to inordinate delay in investigations and trial has been raised before us for the first time but we feel that at this distant point of time, it would be unfair to the appellant to remit the matter back to the High Court for examining the said plea of the appellant. Apart from the fact that it would further protract the already delayed trial, no fruitful purpose would be served as learned counsel for the State very fairly stated before us that he had no explanation to offer for the delay in investigations and the reason why the trial did not commence for eight long years. Nothing, whatsoever, could be pointed out, far from being established, to show that the delay was in any way attributable to the appellant.
........
27. Be that as it may, the prosecution has failed to show any exceptional circumstance, which could possibly be taken into consideration for condoning the prolongation of investigation and the trial. The lackadaisical manner of investigation spread over a period of four years in a case of this type and inordinate delay of over eight years (excluding the period when the record of the trial court was in the High Court), is manifestly clear.Page 39 of 51
28. Thus, on facts in hand, we are convinced that the appellant has been denied his valuable constitutional right to a speedy investigation and trial and, therefore, criminal proceedings initiated against him in the year 1987 and pending in the Court of the Special Judge, Latur, deserve to be quashed on this short ground alone."
43. Moreover, it is a settled principle of law that according to Article 21 of the Constitution, the petitioner is entitled to the right to speedy investigation and trial. The Hon'ble Apex court in A R Antulay v. R S Nayak reported in (1992) 1 SCC 225 has identified that "Right to speedy trial is the right of the accused." in this regard reliance can also placed on Vakil Prasad Singh v. State of Bihar, reported in (2009) 3 SCC 355 (see paragraph 24).
44. Further, with regard to inordinate delay in filing the complaint it has been recently observed by the Hon'ble Supreme Court in Hasmukhlal D. Vora & Anr. vs. State of Tamil Nadu reported in 2022 SCC Online SC 1732, that though inordinate delay in itself may not be a ground for quashing of a criminal complaint, however unexplained inordinate delay must be taken into consideration as a very crucial factor and ground for quashing a criminal complaint.
Page 40 of 51
45. Lastly, in a case where a prayer has been made for the quashing of a criminal proceeding arising out of the impugned FIR, reliance must be placed on the parameters enumerated by the Hon'ble Supreme Court in Bhajanlal's judgement, reported in 1992 Supp. (1) SCC 335;
"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer Page 41 of 51 without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
46. Having heard the learned counsels for both the parties, on a careful scrutiny of the documents attached to the record as well as the factual and legal background of the present matter, this Court on a close scrutiny of facts observed that it is undisputed that the instant prosecution was lodged, without Page 42 of 51 conducting a preliminary Inquiry, as mandatorily required, by an Expert Committee of the concerned Field prior to registration of this Criminal case against the accused-petitioners, who are reputed doctors of the Premier Cancer Institute of the State of Odisha, as the allegation is prescribing a particular Chemo Drug, which relates to treatment of Cancer Patients under the OSTF Scheme. Law is well settled in the case of P.Sirajuddin vs. State of Madras reported in (1970) SCC 595 that in the matter of medical treatment /medical negligence, prior to registration of criminal Prosecution, there must be a Preliminary Inquiry by an Expert Committee. Similar view has also been taken by the Constitution Bench in the case of Lalita Kumari vs. State of UP, reported in (2014) 2 SCC 1, with respect to cases involving the allegation of corruption.
47. Furthermore, this Court is also of considered opinion that there should have been a Preliminary Inquiry of the allegations by an Expert Committee of doctors of the concerned Field and the Committee Members should not have any conflict of Interest with the accused-doctor. In the instant case, the aforesaid mandatory principle as envisaged has not been followed prior to the initiation of this criminal Prosecution. Page 43 of 51
48. It is also the admitted position of the Prosecution that none of the Rules or Provisions of the OSTF Scheme has been violated in this Case by the petitioners. None of the patients have also made any complaint against the accused-doctors regarding the lack of any treatment or non-completion treatment or any undue pressure for purchasing the Specific Drug in question. Similarly, there was no allegation that the drug(s) in question are of substandard quality or non-standard quality. Rather, the drugs in question are of Standard Quality and produce a comparatively better result, as per research studies conducted. Moreover, prescribing any Chemo Drug or medicine to any patient is the sole prerogative of the treating physician and depends on the expertise of the treating doctor. Similarly, in the matter of Cancer treatment, the patients have right to choose their line of treatment and Drugs as per the standard protocol, on the basis of counseling from the available different alternative Line of treatment /drugs. It is the ethical, moral and legal obligation of the treating doctor to prescribe best medicines to the patients as there is a thin gap between their life and death.
49. Furthermore, it is needless to mention that there should not be any discrimination amongst the patients in the matter of Page 44 of 51 treatment on the ground of rich and poor. It is also the Constitutional Obligation of the State to provide the best Medicine and treatment to the patients. So far as prescription of any particular drug is concerned, for prescribing any particular drug of any pharmaceutical company for treatment of a disease, a doctor should not be held criminally liable, unless the said drug(s) is/are hazardous or non-standard, of sub-standard quality or band, or have been restricted by the appropriate authority of the Govt. For that reason, if the Pharma Company is benefitted, the same cannot be treated as an undue favour or loss to the government ex-chequer. More specifically, when patients have paid for the said drug(s) from their own pocket. Similarly, the government cannot compel any patient to consume a particular drug, which might be less efficacious, purely because the said medicine/drugs were procured by the government, or because the said drugs are cheaper.
50. The fundamental allegation against the present petitioners is that the fake manufacturing addresses have been affixed to the said Chemo Injection/Drug. For that, the culpability would be attributed to the Proprietor/ dealer of the JBSL Pharmaceuticals i.e. the manufacturer of the drugs in Page 45 of 51 question. The petitioners or any treating doctors cannot be held criminally liable for the same.
51. In similar parlance, a doctor cannot be made to face criminal Prosecution if he/she has any acquaintance with any Pharma Company or if the doctor has engaged him/herself in consultancy agreement with the said Pharma Company as an advisor. Likewise no culpability or malafide can be attributed to the said doctor for attending any seminar or conference, as a speaker or advisor, conducted by any Pharma Company, merely because the said doctor has prescribed the drugs of that Pharma Company. Otherwise, each and every doctor would have to face criminal prosecution. If proceedings of the present nature are encouraged, then no doctor would be able to treat any patient fairly and by keeping the ultimate benefit of the patient in view. Moreover, the MCI guideline and government regulation permit the doctors to attend seminars and conferences. It also envisaged that the doctor, who is attending any such seminar and/or conference, as a Speaker or Advisor, is entitled towards hospitalities, transportation and other accommodations. As such, the petitioners cannot be made criminally liable on the ground that they have shown any undue favour to a particular company, Page 46 of 51 particularly in the absence of any specific evidence to substantiate such allegation.
52. As far as the quantum of disproportionate assets allegedly accumulated by the Petitioners is concerned, it can be seen that in the reply/objection filed by the Opposite Party- Vigilance Department, it has been stated that disproportionate assets is to the tune of Rs.1,60,39,404/-. Furthermore, on perusal of additional Objection Affidavit filed by the Opposite Party Vigilance Department, it can be ascertained that the Petitioners had earlier, on 03.02.2024, submitted a representation whereby the Petitioners have contradicted the assessment of disproportionate assets made by the Prosecution in the F.I.R. The aforesaid representation of the Petitioners was received by the prosecution on 05.02.2024. The Opposite Party-Vigilance Department have straightway controverted the claims of the Petitieoners made in their representation dated 03.02.2024 on the ground that the Petitioners have not provided any corroborative documents in support of their contentions. It is also the claim of the Opposite Party-Vigilance Department that they have issued repeated notices (on 09.02.2024 and later on 15.02.2024) under section 91 of Cr.P.C to produce the relevant Page 47 of 51 documents/registers/audited balance sheets etc. in support of their contention.
53. Moreover, as is evident from the aforesaid Additional Objection Affidavit filed by the Opposite Party-Vigilance Department, the amount of disproportionate assets attributable to the Petitioners stands at "approximately Rs.2,52,32,145/-". The said amount appears to be different from the amount of disproportionate asset mentioned in the F.I.R (i.e. Rs.2,95,02,699/-) and the amount stated by the Opposite Party- Vigilance Department in the reply/objection (i.e. Rs.1,60,39,404/- at paragraph 6). That said, it is also observed that the Opposite Party-Vigilance Department have admitted, in their Additional Objection Affidavit, that the actual DA amount has not yet been determined by them. Nevertheless, it appears that no definite quantum of disproportionate amount has been arrived at by the Opposite Party Vigilance Department as of yet. As such, a case of accumulation of disproportionate assets cannot be sustained on mere conjectures and surmises especially when there are no other compelling grounds to sustain the same. Page 48 of 51
54. Furthermore, a Criminal Case cannot be lodged against a Doctor merely because he/she has prescribed costlier drugs or chemo injections, which are not only beneficial but also produce a better result than the other competing drugs available. Moreover, in the instant case, other doctors of that Institution/ Department had also prescribed the similar drugs/ chemo injection to their patients availing benefits under the OSTF Scheme and they have not been arrayed as accused in the present case. Similarly, the Screening Committee have sanctioned the OST Fund in favour of the empanelled shop without any objection. The empanelled shops, who have obtained the said money in the form of the OST Fund, have not been made an accused in the present case. In fact, the Pharma Companies, who have allegedly been shown undue favour by the Petitioners, have also not been made accused in the present case. In the aforesaid factual background this Court has no hesitation to draw an inference that the Petitioners have been singled out and victimized by implicating them with a malafide intention. As such, the same is hit by the principles laid down in Bhanjanlal's case (supra).
Page 49 of 51
55. In view of the foregoing reasons, the very initiation of instant criminal proceedings, without conducting a preliminary inquiry by any expert of the concerned field, as observed above, is ex-facie illegal. Moreover, no prima facie case of the alleged offences is made out from the uncontroverted allegations narrated in the FIR against the petitioner. Furthermore, the arbitrariness, discrimination, malafides and blatant illegalities on the part of the prosecution are apparent on the face of the record in the present Case. It is fit case, which is squarely covered under the parameters of the ratio laid down in the case of State of Haryana vs. Bhajanlal, reported in AIR (1992) SC 604. Hence, allowing any further continuance of the present criminal prosecution would be most definitely amount to an abuse of the process of law. Accordingly, while exercising the inherent jurisdiction under section 482 of the Cr.P.C, and in the larger interests of justice, this Court is inclined to quash the Criminal Proceedings vide Vigilance Cell PS Case No. 89 dated 15.09.2016 corresponding to V.G.R. Case No. 86 of 2016 pending in the file of Ld. Special Judge (Vigilance), Cuttack and Vigilance Cell PS Case No. 87 dated 27.08.2016 corresponding to V.G.R. Case No. 82 of 2016, pending in the file of Ld. Special Page 50 of 51 Judge (Vigilance), Cuttack, so far as the present petitioners are concerned. Therefore, the same is hereby quashed.
56. The CRLMC applications are allowed accordingly.
(A.K. Mohapatra) Judge Orissa High Court, Cuttack The 16th April, 2025/ Anil/ Jr. Steno Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 24-Apr-2025 16:53:07 Page 51 of 51