Himachal Pradesh High Court
Surender Malik vs State Of H.P on 27 September, 2023
Author: Virender Singh
Bench: Virender Singh
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
Cr. MP(M) No. 2094 of 2023
Reserved on : 14.9.2023
.
Decided on: 27.9.2023
Surender Malik
...Applicant
Versus
State of H.P.
...Respondent
of
___________________________________________
Coram
Hon'ble Mr. Justice Virender Singh, Judge
rt
Whether approved for reporting?
________________________________________________
For the Applicant : Mr. Nitin Thakur, Advocate.
For the Respondent : Mr. Tejasvi Sharma,
Additional Advocate General
with Ms. Leena Guleria,
Deputy Advocate General.
Virender Singh, Judge (oral)
The applicant has filed the present application, under Section 438 of Code of Criminal Procedure (hereinafter referred to as 'the Cr.P.C.') in case No. 1 of 2023, dated 13.7.2023, under Sections 18(A)(I) read with ::: Downloaded on - 27/09/2023 20:35:26 :::CIS 2 Section 17 & 17B, 18(A)(VI), 18(C) read with Rule 62 D and 22(3), punishable under Section 27(C), 27(D), 27(B)(II) and Section 22 (3) of the Drugs ad Cosmetics Act, 1940 .
(hereinafter referred to as 'the Act"), pending in the Court of learned Additional Sessions Judge, Nalagarh, District Solan, H.P. of
2. According to the applicant, the complaint was filed by Drugs Inspector, in which it has been mentioned rt that secret information was received that one person, namely Mohit Bansal, who was running medicine business at Agra, was involved in manufacturing of spurious drugs, from his manufacturing premises, situated at Baddi and further sale of such medicine from his godown at Agra.
3. According to the applicant, he has made a written complaint against the main accused Mohit Bansal for cheating and forgery, in making false bills in the name of M/s Ackley Formulations to the State Drugs Controller, ::: Downloaded on - 27/09/2023 20:35:26 :::CIS 3 Baddi, H.P. Copy of the complaint was also submitted to the SHO, Police Station, Baddi, on 18.12.2022.
3. According to the applicant, he has been falsely .
implicated in the present case, as, he has nothing to do with the case and he has been named at the instance of some interested persons.
of
4. Asserting the fact that he is permanent resident of Panchkula, Haryana and has deep roots in the rt society, he has prayed for the relief, as claimed, in the application.
5. Apart from this, the applicant has given certain undertakings, for which, he is ready to abide by, in case, directions are issued to the Police/I.O., under Section 438 of the Cr. P.C.
6. On the basis of said application, respondent-
Drugs Inspector has been directed to file status report.
Consequently, he had filed status report on 18.8.2023, in which, it has been asserted that initially, the complaint ::: Downloaded on - 27/09/2023 20:35:26 :::CIS 4 was filed against four persons. Thereafter, four more persons have been added as additional accused, in the case.
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6.1 It is the case of the respondent-Drugs Inspector that on 22.11.2022, a huge stock of spurious medicines was recovered from vehicle No. UP 80FC7530 of at Baddi. The said vehicle was owned by Mohit Bansal, S/o Shri Vinod Bansal. The details of the drugs, so rt recovered, has been mentioned as under:
Sr. Product Quantity Value in Manufacturer No. name Rs. name (as per label claim) 1 Zerodol 190100 3973090 M/s IPCA TH 4 tablets Laboratories Ltd. Melli Jorethang Road Gom Block Bharikhola South District Sikkim
2. Roseday 28950 365638 M/s USV tablets tablets Private Ltd.10 Khara No.
1342/1/2 Hill Top Industrial Area ::: Downloaded on - 27/09/2023 20:35:26 :::CIS 5 Jharmajri Baddi, Solan, H.P.
3. MONTAIR 50720 1076684 Cipla Ltd.
10 tablets Unit II Taza .
Block Sikkim 737133 India 6.2 It is the further case of the prosecution that said Mohit Bansal was directed to produce the record of of medicine or any authorization or drug license to carry the medicines, as per provisions of Section 22(1) (cca) of the rt Act, but, said Mohit Bansal failed to produce any such record. Consequently, the aforesaid items were seized on 22.11.2022.
6.3 Thereafter, on the same day, godown of said Mohit Bansal was searched in the presence of Mohit Bansal, Atul Gupta, (brother-in-law of Mohit Bansal) and Vijay Kaushal. On the search of the godown, the following spurious drugs were found:
Sr. Product Quantity Value in Manufacturer ::: Downloaded on - 27/09/2023 20:35:26 :::CIS 6 No. name Rs. name (as per label claim) 1 MONTAIR 295800 6279245 M/s Cipla .
10 tablets Limited
tablets Sikkim
2. Atorva 31650 215874 M/s Zydus
tablets tablets Healthcare
10 Sikkim
3. Roseday 97420 1230414 M/s USV
tablets tablets Limited Baddi
of
10
4. Zerodol 71080 1485572 M/s IPC
TH4 Laboratories
tablets
rt Limited,
Sikkim
6.4 The stock of said drugs was identified by Mohit
Bansal as Calcium and Torsemide tablets and active raw material as Amplodimine alongwith excipients PvPK 30, plain foils, printed foils and packaging materials, used for manufacturing of spurious drugs.
6.5 Consequently, Mohit Bansal was arrested on 22.11.2022.
6.6 During investigation, they had disclosed the name and address of the manufacturing premises, where ::: Downloaded on - 27/09/2023 20:35:26 :::CIS 7 manufacturing and packaging of spurious drugs were conducted, i.e. M/s Trizal Formulation, Plot No. 29 HPSIDC, Industrial Area, Baddi. The said manufacturing .
unit was searched, where, huge quantity of allopathic spurious drugs (loose tablet), raw materials (API and excipients), rubber stereos, scrap of foils and processed of materials alongwith machinery was found. The said articles were seized on 24.11.2022.
6.7 rt On 25.11.2022, shop of accused Mohit Bansal was searched at Agra, along with Drugs Inspector and huge stock of spurious allopathic medicines was recovered.
6.8 On 27.11.2022, residence of accused Mohit Bansal and Atul Gupta, i.e. H. No. 262/3, ground floor, Mishra Villa, Phase-3, Baddi, Solan was searched, where also, huge stock of loose tablets and packaging material, used rubber stereos, active raw material alongwith die ::: Downloaded on - 27/09/2023 20:35:26 :::CIS 8 and punches were recovered. At that time, one Naresh Kumar has also been arrested, in this case.
6.9 Thereafter, on the basis of disclosure .
statement, made by accused Atul Gupta and Mohit Bansal, the following drugs were recovered from the car of Mohit Bansal:
of
(a) Invoice no. NOV03 dated 19/11/2022 from 'M/s Ackley Formulations near health dispensary ground floor, Vill. Narangpur, PO Thana Baddi Solan HP, rt billed to 'M/s MH Pharma 8 546/547/3 Hing Ki Mandi, Agra UP, for medicine 'Calcury 500 MG, along with 'Part A slip of e-way bill no.
311525632435 dated 21/11/2022 of transporter M/s TCI Express.
(b) Invoice no. 00000172 dated 18/11/2022 of 'M/s KFS Biotech Pvt Ltd., first floor, Vill Kalyanpur, Space 9 no. 102E Block E NH21 billed to 'M/s Bhagwati Drug House shop no. 5 Altafia Market Ground Floor, Kammu Tola Agra UP', for drug 'Calcury DSR Tablet' ::: Downloaded on - 27/09/2023 20:35:26 :::CIS 9
(c) Invoice no. 00000018 dated 18/11/2022 of 'M/s Heaven Formulations Khasra no. 551/3 Shivtoli Industrial Area Parwanoo Taksal Solan HP billed to .
M/s Pharma 8/546/547 Fountain Chock Near Gulab Band Agra UP for drug 'Calcury DSR'.
6.10 On 1.12.2022, the Assistant Manager, Zydus Life Sciences, Ltd. Ahmedabad joined investigation and of submitted that products and foils of their firm, which were allegedly recovered from the accused person, does rt not belong to said firm.
6.11. On 2.12.2022, M/s KFS Biotech Pvt. Ltd. was searched by the team of Drugs Inspector for verification of invoices and it was found that accused Mohit Bansal was working as a competent person of the said firm and it is disclosed that invoices of M/s KFS Biotech, recovered from accused Mohit Bansal, were not issued by them.
Accused Mohammad Idreesh was found absent from the spot.
::: Downloaded on - 27/09/2023 20:35:26 :::CIS 106.12. It is the further case of the Drugs Inspector that on 2.12.2022, firm M/s Ackley Formulations situated near Health Dispensary Narangpur, Thana Baddi, Solan, .
H.P., was visited for verification of invoices of M/s Ackley Formulations, recovered from accused Mohit Bansal, and it was found that proprietor of the said firm is Surender of Malik (applicant). He has disclosed that the firm was not in function and owner of the firm Mr. Surender Malik had rt left the premises, since long. Applicant Surinder Malik was contacted on his mobile phone, but, he has not joined the investigation.
6.13. It is the further case of the Drugs Inspector that the transport office of M/s TCI Express situated at Sai Road Baddi, Solan was visited for verification of E-way bill and tax invoice of M/s Ackley Formulations, bearing No. NOV03, dated 19.11.2022, which were found from the premises of accused Mohit Bansal and Sandeep Sharma.
Both of them have also confirmed that consignment ::: Downloaded on - 27/09/2023 20:35:26 :::CIS 11 transported through said invoice was pending at Sikandrabad, Agra depot of TCI Express.
6.14 On 4.12.2022, as per the further stand of the .
Drugs Inspector, team of the Drug Inspectors, also recovered the following spurious drugs, from the godown of transport company M/s TCI Express at Baddi:
of Sr. Product Quantity/Tablets Value in Manufacturer No. name Rupees (as per label claim) 1 Glimisave 66000 tablets rt 806652/- M/s Eris M2 Lifescience tablets Limited, Amingaon North Guwahati Kamrup Assam.
2. Roseday 43950 tablets 555088/- M/s USV 10 Private tablets Limited plot No. 6 & HPSIDC, Indl. At Baddi, Solan, H.P. 3 MONTAIR 67350 1429705 M/s Cipla 10 Ltd., Unit tablets Taza Block Rorathang Sikkim ::: Downloaded on - 27/09/2023 20:35:26 :::CIS 12 6.15 All the aforesaid drugs were seized, after taking samples. On 21.11.2022, the CCTV footage of M/s .
TCI Express was also obtained.
6.16 On the direction of the Drugs Inspector, applicant Surender Malik, the Proprietor of M/s Ackley of Formulations joined the investigation on 16.12.2022 and disclosed that Mohit Bansal is known to him. He has also rt disclosed that said Mohit Bansal, with the help of his employee Anil Kumar, has manipulated and obtained the invoices of M/s Ackley Formulations, but the said fact was not found to be correct, during investigation. He was also directed to submit the complete records of sale and purchase of raw materials and GST returns of M/s Ackley Formulations.
6.17 On 17.12.2022, the Chartered Accountant Punit Kumar joined the investigation and disclosed that ::: Downloaded on - 27/09/2023 20:35:26 :::CIS 13 purchase register and voucher register of M/s Ackley Formulations, maintained by him, were submitted.
6.18 From the perusal of records of M/s Ackley .
Formulations, it was found that applicant Surender Malik had purchased the huge stock of raw materials, from M/s R S Pharmachem Village Gullarwala, Baddi, Solan, and of M/s HD Pharma Guru Nanak Complex Chakkan Road, Baddi, in the name of M/s Ackley Formulations, using rt GST No. 02AKWPM2701L2Z0. During investigation, one more invoice, in favour of M/s MH Pharma was issued by the firm of applicant, vide invoice No.Sep 01, dated 13.9.2022. All these facts have been pointed out just to show that applicant Surender Malik is intentionally hiding the facts.
6.19 During investigation, on 24.12.2022, M/s R.S. Pharmachem, village Gullarwala, Baddi, Solan and M/s HD Pharma Guru Nanak Complex Chakkan Road, were directed to submit the sale record of materials/drugs etc. ::: Downloaded on - 27/09/2023 20:35:26 :::CIS 14 sold to M/s Ackley Formulations. Consequently, they have submitted their record/invoices. Perusal of the same shows that the following materials were purchased by .
applicant Surender Malik:
a. Sodium Starch Glycolate IP B. no. SS/210722 Mfg date 21/Jul/2022 Make- Dynamic. vide invoice no. RS-0967 dated Pharmachem. 25/08/2022 from M/s of RS b. Microcrystalline cellulose Powder Batch no. 181 Mfg date 27/04/2022, Make-Bharat vide invoice no. RS- 0967 dated 25/08/2022 from M/s RS Pharmachem. c. Starch IP batch no. 220604B mfg. date 04/06/2022 rt make- Bluecraft. vide invoice no. RS-0967 dated, 25.8.2022 from M/s R S Pharmachem.
d. Croscarmellose Sodium IP, b. no. CR-151 mfg date May-2022, Make- Prachin vide invoice no. RS- 0967 dated 25/08/2022 from M/s R S Pharmachem. e. Starch IP-b. no. 220604B mfg date 04/06/2022 Make- Bluecraft, vide invoice no. RS-0718 dated 20/07/2022 from M/S R S Pharmachem. f. Microcrystalline cellulose IP b. no. 182 mfg date dec- 2021 make- Bharat Polymers vide invoice no. RS- 2355 dated 25/02/2022 from M/s RS Pharmachem.
g. Alu-Alu foil vide invoice no. HD/2022-23/111 dated 10/08/2022 from M/s HD Pharma.
h. Dummy pellets vide invoice HD/2022-23/130 dated 06/09/2022 from M/s HD Pharma.
6.20 Despite the directions of the Drugs Inspector, applicant Surender Malik did not join the investigation.
::: Downloaded on - 27/09/2023 20:35:26 :::CIS 15However, on 16.1.2023, he has submitted one e-mail by making complaint against accused Mohit Bansal.
6.21 During investigation, it was found that .
applicant Surender Malik had supplied raw material to Mohit Bansal, for manufacturing the spurious drugs. He was directed to join investigation, through e mails on of 17.1.2023, 18.1.2023, 19.1.2023 and 6.2.2023, but, he intentionally remained absconded. However, on 18.1.2023, he rt has submitted the document 'Memorandum of Understanding', through e-mail, for sale of M/s Ackley Formulations, made between applicant Surender Malik and Swati Singh, wife of Ambuj Singh, Deoria, U.P. 6.22 One more 'Memorandum of Understanding', dated 14.12.2021, with Rakesh Kumar, was also attached with the e-mail. Consequently, on 31.3.2023, Swati Singh and Rakesh Kumar were directed to join the investigation. Swati Singh joined the investigation on ::: Downloaded on - 27/09/2023 20:35:26 :::CIS 16 2.5.2023 and disclosed to the Drugs Inspector that there were two GST numbers, issued for M/s Ackley Formulations, i.e. GST No. 02AKWPM2701L2Z0, vide .
which material was purchased from M/s R S Pharmachem and M/s HD Pharma. The another GST number was 02DTBPS6240D1Z2, which was used by of Swati Singh. It was disclosed by her that 'Memorandum of Understanding' with applicant Surinder Malik has rt become null and void, on 31.5.2022, due to default of payment. Thereafter, applicant Surender Malik was directed to provide correct residential address of Rakesh Kumar Pandey.
6.23 The absconding accused Mohammad Idreesh was arrested on 15.6.2023. He had disclosed that he used to purchase raw material, for manufacturing the spurious drugs from Dinesh Sharma, Director of M/s Stevels Pharma. From this firm, he obtained the printed ::: Downloaded on - 27/09/2023 20:35:26 :::CIS 17 foils of spurious drugs from M/s Adarsh foils Shivalik Nagar Jharmajri, Baddi, Solan.
6.24 The premises of M/s Adarsh foils Shivalik .
Nagar Jharmajri, Baddi, Solan were visited, where, Brijesh Kumar Gaur and Virender Kumar Gaur were found present. Brijesh Kumar disclosed that he was of proprietor of M/s Adarsh Foils and his brother Virender Kumar Gaur was looking after the work of printing and rt labelling. Accused Mohammad Idreesh disclosed that Virender was doing labelling and printing of spurious drugs for Trizal Formulations. Virender Kumar Gaur submitted the copies of payment receipt of Mohammad Idreesh.
6.25 Both Brijesh Kumar Gaur and Virender Kumar Gaur were arrested on 19.6.2023 and are stated to be in judicial custody.
6.26 The premises of M/s Stevel Pharma, Plot No. 576 Ind Area, Phase 9, Punjab, were inspected by Drugs ::: Downloaded on - 27/09/2023 20:35:26 :::CIS 18 Inspector alongwith accused Mohammad Idreesh and police officials, on 21.6.2023. A notice under Section 22(1)(cca) of the Act was served upon accused Dinesh .
Sharma to complete purchase and sale records of materials.
6.27 On 22.6.2023, Mr. Chander Kant Aggarwal, of authorized signatory of M/s Macleods Pharmaceutical Ltd. joined the investigation and disclosed that firm M/s rt Macloeds Pharma had never shared the artwork with M/s Adarsh foils for labelling and printing of foil of their product 'Bio-D3 plus'.
6.28 Accused Dinesh Sharma did not join the investigation. He was arrested on 25.7.2023 and his mobile phone was taken into possession and sent for forensic analysis.
6.29 Lastly, it has been submitted that complaint against four accused Mohit Bansal, Atul Gupta, Vijay Kaushal and Naresh Kumar is pending adjudication ::: Downloaded on - 27/09/2023 20:35:26 :::CIS 19 before the learned Additional Sessions Judge (Special Judge), Nalagarh, District Solan and supplementary complaint against accused Mohammad Idreesh, Dinesh .
Sharma, Brijesh Kumar and Virender Kumar has been filed on 11.8.2023.
7. On the basis of above facts, a prayer has been of made to dismiss the application.
8. On the basis of said status report, interim rt protection was given to the applicant with the direction to join the investigation. Thereafter, the matter was adjourned on various dates. In the supplementary status report, filed by the Drugs Inspector, it has been apprehended that in case, the interim order, is made absolute, in that eventuality, there are chances that the applicant may coerce the witnesses and he may not be available to join the investigation.
8.1. According to the Drugs Inspector, the applicant has not disclosed the details of other accused ::: Downloaded on - 27/09/2023 20:35:26 :::CIS 20 persons, involved in the transportation of the raw material. As such, his custodial interrogation has been sought.
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9. Interestingly, in the status report, a stand has been taken that according to the record, submitted by applicant Surender Malik, no manufacturing of materials of has taken place between April, 2022 to September,2022 at M/s Ackley Formulations. Even from GST returns, it rt was found that only one sale invoice was made by Surender Malik from April to September, 2022, vide no.
Sep 01, dated 13.9.2022, in favour of Mohit Bansal at M/s MH Pharma Agra.
10. In such situation, the material question, which arises for determination, before this Court, is, whether the interim order is liable to be made absolute or not?
11. The applicant, in the present case, has although joined investigation, but, according to the status report, he is not revealing the true facts to the ::: Downloaded on - 27/09/2023 20:35:26 :::CIS 21 Drugs Inspector. Admittedly, the custodial interrogation of a person is more result oriented, than the investigation of a person, who is having interim protection of bail, in .
his favour.
12. From the stand of the Drugs Inspector, according to which, a big haul of spurious drugs has of been recovered, in this case, the seriousness of offence is writ at large. Considering the multi-dimensional effects of rt the alleged offence, i.e. manufacturing and supplying of the spurious drugs, on the society, this Court is of the view that the applicant is not entitled for the relief, as claimed, in the application.
13. In case, the interim order is made absolute, it will give a wrong signal to the society, that after committing such a heinous crime, the applicant is moving freely in the society.
::: Downloaded on - 27/09/2023 20:35:26 :::CIS 2214. While deciding the question of bail, a delicate balance between the individual liberty and the larger interest of the society, has to be maintained.
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15. The act of the applicant, in not submitting the manufacturing record, packaging record and record of sale invoices of nutraceutical products to M/s MH of Pharma, is a fact, which also dis-entitles him, from the relief, as claimed, in the petition.
16. rt Even otherwise, the investigation of the case is at crucial stage, as such, the apprehensions, which have been expressed by the Drugs Inspector, in the status report, at this stage, cannot be said to be unfounded.
17. Considering the above facts, the present bail application is dismissed.
18. Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, ::: Downloaded on - 27/09/2023 20:35:26 :::CIS 23 only, to the disposal of the present bail application.
(Virender Singh) .
Judge September 27, 2023 Kalpana of rt ::: Downloaded on - 27/09/2023 20:35:26 :::CIS