Himachal Pradesh High Court
Ankit Singla vs State Of Himachal Pradesh on 20 September, 2023
Author: Sushil Kukreja
Bench: Sushil Kukreja
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr.MP(M) No. 1476 of 2023 & Cr.MP(M) No. 1477 of 2023 Reserved on: 21.08.2023 Decided on: 20.09.2023 ___________________________________________________ (1) Cr.MP(M) No. 1476 of 2023 of Ankit Singla ....Petitioner rt Versus State of Himachal Pradesh ...Respondent ___________________________________________________ (2) Cr.MP(M) No. 1477 of 2023 Ankush Singla ....Petitioner Versus State of Himachal Pradesh ...Respondent Coram Hon'ble Mr. Justice Sushil Kukreja, Judge Whether approved for reporting?1 In both the petitions:
For the petitioner(s): Mr. Ajay Kochhar, Sr. Advocate, with Mr. Sanjay Kumar Jain & Mr.Anubhav Chopra, Advocates.
For the respondent: Mr. Jitender Kumar Sharma, Additional Advocate General.
1 Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 20/09/2023 20:40:41 :::CIS 2
Sushil Kukreja, Judge .
Since both these petitions are offshoots of a complaint case under Sections 18(a)(i), 18(c) and 17B read with Section 36AC of the Drugs and Cosmetics Act, 1940 (for short, 'DAC Act'), hence, these are taken up together for consideration of and adjudication.
2. The instant bail applications have been moved by the rt petitioners, i.e., Ankit Singla (in Cr.MP(M) No. 1476 of 2023) and Ankush Singla (in Cr.MP(M) No. 477 of 2023), under Section 438 of the Code of Criminal Procedure (Cr.P.C.) for releasing them on bail, in the event of their arrest in case registered under Sections 18(a)(i), 18(c) and 17B read with Section 36AC of DAC Act.
3. The brief facts of the case, which emerge from the records, are that on 08.05.2023, pursuant to secret tip-off, a team of Drug Inspectors inspected the premises of M/s Pinnacle Life Sciences Private Limited, at Manpura, Baddi, District Solan, H.P. and found raw material of pharmaceutical use labeled as "Explotab (Sodium Starch Glycolate, Type A), Vivasol GF (Croscarmellose Sodium) & Flocel (Miscrocrystalline Cellulose) labeled as manufactured by M/s JRS Pharma and Gujarat ::: Downloaded on - 20/09/2023 20:40:41 :::CIS 3 Microwax P. Ltd., Unite-II, Nandasan, District Mehsana, Gujarat .
and it was suspected that the drug, i.e., Explotab was spurious, as there were differences in labels of spurious drugs and packing style of cartons as compared to genuine stock of drugs.
Thereafter, the team completed all the codal formalities. During of investigation, it was unearthed that the suspected stock of spurious drugs was supplied by M/s KC Overseas. Samples of rt drugs were sent to Regional Drugs Testing Laboratory, Chandigarh for test and analysis.
4. On 09.05.2023 a team of Drug Inspectors visited the premises of M/s Logos Pharma situated at village Maissa Tibba, Tehsil and District Nalagarh, H.P. and seized the spurious drugs in presence of representatives of M/s Logos Pharma and other witnesses. It was unearthed that the suspected stock of spurious drugs was also supplied by M/s KC Overseas. Samples of spurious drugs were also sent to Regional Drugs Testing Laboratory, Chandigarh for testing.
5. On 10.05.2023, a team of Drug Inspectors visited the premises of M/s Ultra Drugs Private Limited, Unit-II, at Katha, Baddi, District Solan, H.P. and suspected stock of aforesaid ::: Downloaded on - 20/09/2023 20:40:41 :::CIS 4 spurious drugs were also found and the samples were sent for .
testing. During the course of investigation, it was unearthed that the suspected stock of spurious drugs was also supplied by M/s KC Overseas to M/s Ultra Drugs. On the same day, a team of Drug Inspectors alongwith the police also visited the premises of of M/s KC Overseas situated at Khasra No. 169/2, Buranwala Chowk, Village Buranwala, P.O. Barotiwala, District Solan, H.P. rt and Harish Kumar alongwith two other employees was found present in the said premises, who produced the wholesale drugs licenses issued to M/s KC Overseas by Drugs Licensing Authority and it was verified that Harish Kumar was endorsed as a competent person on the wholesale drugs licenses of the firm as required under the provision of the DAC Act.
6. On 11.05.2023 Shri Jaya Prakash M. authorized signatory of M/s JRS Pharma alongwith one representative Mr.Anil Patel, visited the premises of M/s KC Overseas and he identified the drugs lying in the premises of M/s KC Overseas being genuine and were supplied by M/s JRS Pharma to M/s KC Overseas.Thereafter, Harish Kumar alongwith two other employees of M/s KC Overseas joined the investigation at M/s ::: Downloaded on - 20/09/2023 20:40:41 :::CIS 5 Pinnacle Life Sciences to identify the genuineness of drugs and .
also to separate the genuine drugs from the spurious drugs.
Thereafter, on the same day, a team of Drug Inspectors alongwith representatives of M/s JRS Pharma, representatives of M/s KC Overseas alongwith witnesses visited the premises of of M/s Pinnacle Life Sciences situated at Manpura, Baddi, District Solan, HP and during the visit, Jaya Prakash M verified that rt some of the material supplied by M/s KC Overseas labelled as "manufactured by M/s JRS Pharma" was not the original product of M/s JRS Pharma and was labelled as "manufactured by M/s JRS Pharma" but was neither manufactured nor supplied by M/s JRS Pharma to M/s KC Overseas. Moreover, M/s KC Overseas supplied these spurious drugs to M/s Pinnacle Life Sciences through sales invoices. A joint statement in this regard was given by Mr. Jaya Prakash M & Mr. Anil Patel on spot at M/s Pinnacle Life Sciences. Further, Harish Kumar confirmed that the spurious drugs lying at M/s Pinnacle Life Science were supplied by M/s KC Overseas. The stock of spurious drugs was seized by the respondent-Drug Inspector in the presence of the representatives from M/s JRS Pharma, M/s KC Overseas, M/s ::: Downloaded on - 20/09/2023 20:40:41 :::CIS 6 Pinnacle Life Sciences & associated witnesses. The investigation .
revealed that M/s KC Overseas had supplied a huge quantity of spurious drugs to M/s Pinnacle Life Sciences in contravention of Sections 18(a) (i), 17B read with 36AC of DAC Act. Therefore, Harish Kumar was arrested on-spot by the Drug Inspector, as the of offences as cited in Section 36AC of DAC Act are cognizable and non-bailable as he was not able to produce the complete rt purchase record of the spurious drugs supplied by M/s KC Overseas to M/s Pinnacle Science and other firms.
7. On 12.05.2023, the representatives of M/s JRS Pharma verified the stock of spurious Vivasol, which was not manufactured and supplied by them, however, it was found labeled as manufactured by M/s JRS Pharma and Gujarat Microwax P. Ltd., Unit II, Nandasan, District Mehsana, Gujarat.
On the same day, Harish Kumar was brought to the premises of M/s Ultra Drugs Private Limited situated at Katha and during the visit, representatives of firm M/s JRS Pharma and witnesses were present in the said firm. The representatives of M/s JRS Pharma verified the stock of spurious Vivasol which was not manufactured and supplied by them, but was found labeled as ::: Downloaded on - 20/09/2023 20:40:41 :::CIS 7 manufactured by "M/s JRS Pharma and Gujarat Microwax P Ltd, .
Unit II, Nandasan, District Mehsana, Gujarat" and Harish Kumar disclosed that the said spurious drugs were supplied by M/s KC Overseas to M/s Ultra Drugs Private Limited at Katha. Therefore, complete stock of spurious drugs were seized by the Drug of Inspector in the presence of representatives of M/s JRS Pharma, accused person Harish Kumar, representatives from M/s Ultra rt Drugs & associated witnesses.
8. On 16.05.2023, a team of Drug Inspectors visited the premises of M/s Logos Pharma and identified the spurious drugs on the basis of reference packaging material provided by M/s JRS Pharma and also seized the stock of spurious drugs in presence of the representatives of M/s Logos Pharma and other witnesses. On the same day, Sanjay Singh, Prop. of M/s Allied Pharma Chem, alongwith Pradeep Singh, Data Entry Operator, appeared in the office of SDC, Baddi and Sanjay Singh intended to join investigation, who disclosed that at the instance of M/s KC Overseas, he had provided spurious drugs to M/s KC Overseas, which were in the name of M/s JRS Pharma and thereafter accused Sanjay Singh was also arrested.
::: Downloaded on - 20/09/2023 20:40:41 :::CIS 89. On 31.05.2023, a team of Drug Inspectors of BBN .
area alongwith other witnesses visited the premises of M/s Park Pharmaceuticals situated at village Kalu Jhanda, Tehsil Baddi, District Solan, H.P., where they found 03 khakhi coloured corrugated boxes, containing Explotab and images of the boxes of were sent to M/s JRS Pharma Gujarat, through e-mail and the representatives of M/s JRS Pharma replied, through e-mail that rt Khakhi coloured corrugated box marked as M1 was supplied by M/s JRS Pharma and M2 and M3 were not supplied by them and the same were spurious. During the scrutiny of the records produced by the petitioners, it was found that M/s KC Overseas had purchased spurious drugs Explotab and Vivasol to the extent of 28,925 kgs from M/s Allied Pharma Chem, On being communicated, Ms/ JRS Pharma replied and confirmed that they had never supplied any SSG (Explotab) and CCS (Vivasol) to M/s Allied Pharma Chem. On 26.06.2023 the petitioners disclosed the complete sales of spurious Explotab and Vivasol, through sale invoices to M/s Pinnacle Life Sciences, M/s Ultra Drugs Private Limited, M/s Ultra Drugs Private Limited, M/s Logos Pharma, M/s Life Vision and M/s Laborate Pharma, total ::: Downloaded on - 20/09/2023 20:40:41 :::CIS 9 28700 kgs, but the firm could not submit sales record of 275 kgs .
of spurious drugs. On 27.06.2023 M/s KC Overseas, replied to notice dated 20.06.2023, but it could not disclose purchase bills of packaging material seized from the premises of M/s KC Overseas on 19.06.2023. Subsequently, on 30.06.2023 M/s of Ultra Drugs Private Limited replied to notice and disclosed that the firm is having stock of spurious Vivasol in hand. In sequel, rt the premises of the aforesaid firm was inspected and spurious Vivasol was found. Till date, 7275 kgs of spurious drugs manufactured and supplied by M/s KC Overseas and M/s Allied Pharma, in connivance were recovered from various drugs manufacturing firms at BBN Area and seized.
10. The bail applications have been filed by the petitioners on the ground that they are innocent and have been falsely implicated in the present case. Learned counsel for the petitioners contended that the petitioners are the directors of the company and are not responsible for the conduct of the business of the company. He further contended that the drug controlling authority granted the Drug licence to the company with the petitioners as directors of M/s KC Overseas and the said license ::: Downloaded on - 20/09/2023 20:40:41 :::CIS 10 was issued from 17.06.2020 to 16.06.2025 with Harish Kumar as .
competent person as required under Rule 61(1) and Rule 65(5) of the Drugs and Cosmetics Rules, 1945 and due to change of premises, the Drug Control Administration, Solan granted the drug licence with the changed address valid from 23.12.2022 to of 22.12.2027. He also contended that the head office of M/s KC Overseas was situated at Panchkula, whereas the competent rt person Harish Kumar as well as Deepak Gupta and one Shubham used to look after the business of the company from the godown office at Baddi and the competent person was in charge of and was responsible to the company for the conduct of its business and the offence, if any, was committed without the knowledge of the petitioners. He further contended that as per the analysis reports for the samples received from the government analyst, Regional Drugs Testing Laboratory, all the drugs samples were declared to be of standard quality and those were not spurious drugs.
11. Per contra, the learned Additional Advocate General opposed the bail applications on the ground that keeping in view the gravity of the offence alleged to have been committed by the ::: Downloaded on - 20/09/2023 20:40:41 :::CIS 11 petitioners, they are not entitled to be enlarged on bail. He .
further contended that the investigation in the case is in progress, more evidences are yet to be collected, therefore the custodial interrogation of the petitioners is required as the petitioners are not disclosing the purchase record of packaging of materials, purchase of imitative labels and corrugated boxes used for the manufacturing of spurious Explotab and Vivosol and rt the sales record of 275 kg of spurious drugs.
12. I have heard the learned Senior Counsel for the petitioners as well as the learned Additional Advocate General for the respondent-State and also gone through the records carefully.
13. It is a settled law that the anticipatory bail can be granted only in exceptional circumstances where the Court is, prima facie, of the view that the petitioner has been falsely implicated in the offence. Being an extraordinary remedy, it should be resorted to only in a special case. Though, it would be inappropriate to discuss the evidence in depth at this stage, because it may influence the trial Court, but the evidence collected during the investigation, prima facie, indicates the ::: Downloaded on - 20/09/2023 20:40:41 :::CIS 12 involvement of the petitioners in a serious offence under Sections .
18(a)(i),18(c) and 17B read with Section 36AC of DAC Act.
14. For the disposal of the instant application for grant of bail, Section 36-AC of DAC Act is relevant, which may be quoted as below:-
of "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),- rt
(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 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, ::: Downloaded on - 20/09/2023 20:40:41 :::CIS 13 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.
Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the of 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 rt"Magistrate" in that section includes also a reference to a "Special Court" designated under section 36AB."
15. 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 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.
16. Section 27 of the DAC Act provides that the persons found guilty for the manufacture, sale etc. of the adulterated and ::: Downloaded on - 20/09/2023 20:40:41 :::CIS 14 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:-
of "27. Penalty for manufacture, sale, etc., of drugs in contravention of this Chapter.- Whoever, himself or by any other person on his behalf, rtmanufacturers 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 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."
12. 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 ::: Downloaded on - 20/09/2023 20:40:41 :::CIS 15 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. It is not disputed that petitioners Ankush Singla and Ankit Singla are the directors of M/s KC Overseas. During of investigation, prima facie, it was revealed that M/s KC Overseas had supplied huge quantity of spurious drugs to M/s Pinnacle rt Life Sciences in contravention of Sections 18(a)(i), 17B read with Section 36AC of DAC Act. On 11.05.2023, a team of Drugs Inspectors, alongwith representatives of M/s JRS Pharma and M/s KC Overseas, alongwith witnesses, visited the premises of M/s Pinnacle Life Sciences at Manpura, Baddi, District Solan, H.P., where it was revealed that some material, supplied by M/s KC Overseas, labelled as "manufactured by M/s JRS Pharma"
was not the original product of M/s JRS Pharma but was labeled as "manufactured by M/s JRS Pharma and the same was neither manufactured nor supplied by M/s JRS Pharma to M/s KC Overseas and the competent person of M/s KC Overseas Harish Kumar confirmed that spurious drugs found at M/s Pinnacle Life Science were supplied by M/s KC Overseas. He ::: Downloaded on - 20/09/2023 20:40:41 :::CIS 16 was arrested on the spot by the respondent, as he could not .
produce purchase record of spurious drugs supplied by M/s KC Overseas to M/s Pinnacle Life Science and other firms. On 12.05.2023 representatives of M/s JRS Pharma verified the stock of spurious Vivasol, which was not manufactured and supplied by of them, however, it was found labeled as manufactured by M/s JRS Pharma and Gujarat Microwax P. Ltd., Unit II, Nandasan, rt District Mehsana, Gurajat. Accused Harish Kumar revealed that said spurious drugs were supplied by M/s KC Overseas to M/s Ultra Drugs Private Limited at Katha. On 31.05.2023 a team of Drugs Inspectors of BBN area alongwith other witnesses visited the premises of M/S Park Pharmaceuticals, at village Kalu Jhanda, Tehsil Baddi, District Solan, H.P., where they found 03 Khakhi corrugated boxes, containing Explotab. These khakhi corrugated boxes were marked as M1, M2 & M3 and the images of those boxes were sent to M/s JRS Pharma Gujarat, through e-
mail and the representative of M/s JRS Pharma replied through e-mail that Khakhi corrugated box marked M1 was supplied by them but the boxes marked as M2 and M3 were not supplied by them and the same were spurious. On 02.06.2023 premises of ::: Downloaded on - 20/09/2023 20:40:41 :::CIS 17 M/s Allied Pharma Chem was again visited for verification of .
physical stock and during inspection, Pradeep Singh was associated in the investigation who disclosed that M/s Allied Pharma Chem had sold the entire stock of Sodium Starch Glycolate of M/s Blue Craft made by converting it to Explotab of of M/s JRS make at the instance of the petitioners. He has further disclosed that at the instance of the petitioners, M/s Allied rt Pharma Chem had also sold Cros Carmellose Sodium of M/s Amster make by converting it to Vivasol. The investigation prima facie revealed that directors of M/s KC Overseas i.e. the petitioners Ankush Singla and Ankit Singla alongwith Harish Kumar used to provide sodium starch glycolate of M/s Blue Craft make to M/s Allied Pharma Chem, alongwith its packing material and imitative labels of M/s JRS Pharma, which were pasted on corrugated boxes of spurious drugs, recovered from various drugs manufacturing firms. M/s JRS Pharma also disclosed that M/s KC Overseas is the only agent for distribution for Explotab and Vivasol for North India. It has come in the investigation that M/s JRS Phrma neither signed any agreement with M/s Allied Pharma Chem nor it had supplied Explotab and Vivasol to M/s ::: Downloaded on - 20/09/2023 20:40:41 :::CIS 18 Allied Pharma Chem. During the scrutiny of the records .
produced by the petitioners, it was found that M/s KC Overseas had purchased spurious drugs Explotab and Vivasol to the extent of 28,925 kgs from M/s Allied Pharma Chem. On being communicated, Ms/ JRS Pharma replied and confirmed that they of had never supplied any SSG (Explotab) and CCS (Vivasol) to M/s Allied Pharma Chem. The petitioners disclosed the complete rt sales of spurious Explotab and Vivasol, through sale invoices to M/s Pinnacle Life Sciences,M/s Ultra Drugs Private Limited, M/s Logos Pharma, M/s Life Vision and M/s Laborate Pharma in total 28,700 kgs, but did not submit sales record of 275 kgs of spurious drugs. The investigation further reveals that till date, 7275 kgs of spurious drugs that was manufactured and supplied by M/s KC Overseas and M/s Allied Pharma, in connivance were recovered from various drugs manufacturing firms at BBN area and seized. Thus, the investigation prima facie shows the involvement of the petitioners in the manufacturing and sale of spurious drugs.
18. The learned Senior Counsel for the petitioners contended that in the license issued to M/s KC Overseas by ::: Downloaded on - 20/09/2023 20:40:41 :::CIS 19 Drugs Licensing Authority, one Harish Kumar was endorsed as a .
competent person on the wholesale drugs licenses of the firm, as required under the provision of DAC Act and he was in-charge of and was responsible to the company for the conduct of its everyday business and the offence, if any, was committed of without the knowledge of the petitioners as the petitioners are only the directors of the company and are not responsible for the rt conduct of its business. To buttress his contention, he also placed reliance upon Girdhari Lal Gupta Versus D.H. Mehta and another, 1971 (3) Supreme Court Cases, 189, State of Karnataka Versus Pratap Chand and others, (1981) 2 Supreme Court Cases 335, State of Haryana Versus Brij Lal Mittal and others, (1998) 5 Supreme Court Cases 343, Katta Sujatha (SMT) Versus Fertilizers & Chemicals Travancore Ltd. and another, (2002) 7 Supreme Court Cases 655, Cheminova India Limited and another Versus State of Punjab and others, 2021 SCC OnLine SC 573 and Lalankumar Singh and others Versus State of Maharashtra, 2022 SCC OnLine SC 1383.
::: Downloaded on - 20/09/2023 20:40:41 :::CIS 2019. There is no dispute about the proposition of law that .
a person cannot be made liable unless at the material time he was in-charge and was also responsible to the company for the conduct of its business and merely because a person is the director of the company, it is not necessary that he/she was of aware about the day-to-day functioning of the company and was in-charge of its everyday affairs. However, in the instant case, rt the investigation prima facie reveals that the petitioners were knowingly involved in the manufacture and supply of the spurious drugs in connivance with other accused persons. 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. Section 34 (2) of DAC Act 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."
::: Downloaded on - 20/09/2023 20:40:41 :::CIS 2120. It has come during investigation, that sometimes M/s .
KC Overseas only asked for changed invoices, through e-mail and material was exchanged by M/s KC Overseas themselves and intimation of forged bills by M/s Allied Pharma Chem was given through e-mails to petitioners Ankush Singla, Ankit Singla of as well as the competent person Harish Kumar. Furher from the perusal of record, it is revealed that the emails regarding sales of rt spurious drugs by M/s Allied Pharma were sent from M/s Allied Pharma from email id: [email protected] to M/s KC Overseas at email id: Dispatch [email protected], Ankush Singla [email protected] & Ankit Singla [email protected] which is prima facie indicative of the fact that the purchase of spurious drugs from M/s Allied Pharma was well within the knowledge of petitioners Ankit Singla and Ankush Singla. Therefore,it can not be said that the offence was committed without the knowledge of the petitioners as contended by the learned Senior Counsel for the petitioners.
21. Learned Senior counsel for the petitioners next contended that as per the analysis reports of eleven samples received from the government analyst, Regional Drugs Testing ::: Downloaded on - 20/09/2023 20:40:41 :::CIS 22 Laboratory, all the drugs samples were declared to be of .
standard quality and those were not spurious drugs, therefore also the petitioners deserve 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 of 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 rt 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 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 ::: Downloaded on - 20/09/2023 20:40:41 :::CIS 23
(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."
22. In view of the above definition for the drug to be of spurious, it is not necessary that it should be first subjected to any Chemical examination. It would be deemed to be a spurious rt drug if any of the above clauses are satisfied. Therefore, this contention of the learned Senior Counsel for the petitioners is also devoid of any force .
23. As per Section 36 AC of 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.
24. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression "reasonable grounds" has not been defined in the Act ::: Downloaded on - 20/09/2023 20:40:41 :::CIS 24 but means something more than prima facie grounds. In the .
present case, the petitioners have failed to satisfy the conditions for grant of bail, as provided under Section 36 AC of DAC Act.
25. From the investigation, prima facie, it is evident that the petitioners were knowingly involved in the manufacture and of supply of spurious drugs in connivance with other accused to various drugs manufacturing firms at BBN area of District Solan rt knowing pretty well that the drugs were spurious and have 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. Once the allegations against the petitioners are of such type, they cannot claim anticipatory bail as a matter of right. It is a settled law that the provisions for grant of anticipatory bail under Section 438 of Cr. P.C., are not to be mechanically applied. Nature and gravity of the offence, the position and status of the accused with reference to the victim and witnesses, likelihood of the accused fleeing from justice, possibility of the accused tampering with the evidence and larger public interest are some of the considerations which must weigh with the Court while deciding the application for grant of ::: Downloaded on - 20/09/2023 20:40:41 :::CIS 25 anticipatory bail. Liberty of a citizen is indeed of a paramount .
importance, but at the same time, fair and fearless investigation of case of a serious nature is of no less importance. The Court shall refrain from exercising its discretion in favour of the accused under Section 438,Cr. P.C., if it adversely affects the of investigation and larger public interest. In view of the serious nature of allegations against them, a wall cannot be created rt between the Investigating Agency and the petitioners.The petitioners were granted interim bail by this Court on 16.06.2023 and they were ordered to join the investigation of the case, but as per the status report, the petitioners are not cooperating with the Investigating Agency. Since the petitioners are alleged to be involved in the commission of a serious offence, their custodial interrogation is necessary for the proper investigation of the case.
26. Therefore, in view of the facts and circumstances of the case as the investigation in this case is still in progress, grant of anticipatory bail to the petitioners is likely to hamper the progress of the investigation as such, this Court does not find any exceptional ground to exercise its discretionary jurisdiction ::: Downloaded on - 20/09/2023 20:40:41 :::CIS 26 under Section 438, Cr.P.C. to grant them anticipatory bail. It is .
needless to mention that the offences under the DAC Act are grave and serious in nature. Hence, looking into the nature and gravity of offence and severity of punishment, in my considered view, the petitioners do not deserve to be released on bail as of such, the present anticipatory bail applications are liable to be dismissed being devoid of merits.
27. rt Accordingly, both the bail applications are dismissed and the interim protection granted to the petitioners, vide order dated 16.06.2023, stands vacated.
28. Before parting with this order, it is hereby clarified that the aforesaid observations made in this order, have been made only for the purpose of considering the present petitions for anticipatory bail. Therefore, the same shall not come in the way of the trial court for considering the application that may be filed by the petitioners for regular bail or at the time of the trial and the trial Court concerned shall not be influenced by the observations made hereinabove.
( Sushil Kukreja )
September 20, 2023 Judge
(VH)
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