Orissa High Court
Hadibandhu Behera And Another vs State Of Odisha .... Opp. Party on 23 August, 2023
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
ABLAPL No.7391 of 2023
Hadibandhu Behera and another .... Petitioners
Mr. Jagabandhu Sahu, Sr. Advocate
-versus-
State of Odisha .... Opp. Party
Mr.M.K. Mohanty, ASC
CORAM:
JUSTICE CHITTARANJAN DASH
ORDER
Order No. 23.08.2023
01. 1. Heard learned counsel for the Petitioners and the State.
2. This is an application for bail U/s.438 Cr.P.C. filed by the Petitioners in apprehension of arrest for their alleged involvement in the offences U/s.276/468/483/486/326/34 IPC in connection with Angul P.S. Case No.316 of 2023 corresponding to G.R. Case No.912 of 2023 pending in the court of learned S.D.J.M., Angul.
3. Being informed of an incident wherein the Collector and District Magistrate, Angul who purchased medicine i.e. PANTOCID DSR capsule from M/s. Maa Budhi Medicine Store, Kadampadia Bus Stand, Angul consumed for her relief but instead of getting relief she suffered severe heart burn and gastric pain for which she got admitted in Apollo Hospital, Bhubaneswar.
4. In connection with the matter an STF was formed to investigate into the matter. During investigation by the team it emerged that the firm of the Petitioner i.e. M/s. Maa Budhi Medicine Store allegedly to have purchased drugs from the present Petitioners who are the // 2 // wholesaler i.e. M/s.Ganapati Enterprises besides M/s.Shree Jagannath Agency. The team drew statutory sample of six strips of alleged batch and sent the sample to SDTRL for analysis and sent one portion to the manufacturer i.e. M/s Sun Pharma Laboratories Ltd for its comment. The drug sample sent by the Drug Inspector was found to be spurious/counterfeit drug. On 18th May, 2023 vide instruction of Government of Odisha, Health and Family Welfare Department vide File No. PT2-HFW-MEII-MISC-0013-2023, 11319/H & F.W. dated 12/05/2023, the team of Special Tax Force (Drugs Enforcement Squad) carried out joint enquiry at M/s. Maa Budhi Medicine Store, Angul and found different quantities of opening balance in three different stock register in the financial year 2022-23. In financial year 2021-22 the closing balance found 28 strips, whereas in subsequent financial year 2022-23 found to be 178 strips/88 strips and 10 strips in three different registers. Both the partners of M/s. Maa Budhi Medicine Store gave in writing that they have purchased the alleged batch of drug from the Petitioners firm M/s. Ganapati Enterprises, Angul. The team seized the same along with purchased invoices, sale statement and cash memo of aforesaid drug.
5. They made joint enquiry at M/s. Ganapati Enterprises and found that the wholesaler purchased the same from M/s. Kaveri Agencies, Medical Road, Ranihat, Cuttack authorized stockiest of M/s.Sun Pharma Distribution Ltd. on 22.06.2022 of 100 strips and received on 26.06.2022. M/s. Ganapati Enterprises, Angul found to have sold 10 strips to M/s. Maa Budhi Medicine Store, Angul on 28.06.2022 and two strips to M/s. Biswal Medical Store, Jagamohanpur, Keonjhar on 17.6.2022 i.e. the date of sale is prior to the date of its Page 2 of 9 // 3 // purchase suggesting thereby M/s. Ganapati Enterprises sold the alleged drug of PANTOCID DSR batch No.SID00886A prior to its purchase from M/s Kavery but from an illegitimate source. On 26.06.2023 the Government Analyst, State Drugs Testing & Research Laboratory, Odisha, Bhubaneswar declared the sample PANTOCID DSR is not of standard quality as per the definition under Section 17B of the Drugs and Cosmetics Act, 1940 and the drug is deemed to be spurious. On 30.06.2023 the CDM and PHO, Angul opined that the said spurious drug will not give any therapeutic benefits to patient rather the condition of peptic ulcer will be aggravated and subsequently leads to bleeding into stomach which is presented haematemesis and Melena.
6. On 05.07.2023 the STF along with Drug Inspector seized the relevant documents of aforesaid spurious drugs from the custody of Sudeep Kumar Garnaik and Sanjib Kumar Sahu, the Partners of the retail shop M/s Maa Budhi Medicine Store from 11.15 AM to 3.15 PM and from partners of the Petitioners firm M/s. Ganapati Enterprises i.e. Bhagyadhar Sahu and Hadibandhu Behera between 4.50 PM to 7.45PM and intimated to the concerned court of SDJM to initiate a case required under Drugs and Cosmetics Act, 1940 and Rules framed there under for contravention under Section 18(a) (i) read with section 17-B(e). The Drug Inspector reported against both the firms M/s.Maa Budhi Medicine Store and M/s.Ganapati Enterprises committing forgery of documents under Section 468 IPC, mischief the patient causing internal injury and financial loss under Section 425 and 427 IPC, endangering life and severe bodily pain to the patient to the patient under Section 326 IPC and for selling drug of nill content under section 276 IPC, sold drugs with Page 3 of 9 // 4 // counterfeit property mark under Section 486 IPC and counterfeiting a property under Section 483 IPC, caused grievous hurt by means of swallowing drugs under Section 326 IPC, criminal activities by several person in furtherance of common intention under Section 34 IPC and accordingly reported the matter for taking necessary legal action against the offenders for the interest of public, basing whereof the P.S. Case No.316 of 2023 was registered.
7. Mr. J. Sahu, learned Senior Counsel appearing for the Petitioners submitted that the Petitioners being the wholesaler of medicine cannot be held responsible for the alleged offences as he purchased the drug from M/s. Kaveri Agencies, Medical Road, Ranihat, Cuttack, the authorized stockiest of M/s. Sun Pharma Distribution Ltd. According to him, the Petitioners had no opportunity being wholesaler has no scope to verify the genuineness of the alleged drugs if the same is spurious.
8. Mr. Sahu further submits that the Petitioners are carrying on their business for years under good faith and since the stockiest from whom they have been purchasing the alleged drug is a reputed firm and continuing as such for years they cannot conceive the stockiest to have supplied the spurious drug, consequently, the Petitioners cannot be attributed with the charge. Going a step ahead Mr. Sahu submitted that the Petitioners firm never supplied the spurious medicine to M/s Maa Budhi Medicine Store. He also submitted that the basic ingredients to constitute the above offences are lacking vis-à-vis the present Petitioners and the Petitioners have all through cooperated the investigation and would also abide by all those terms and conditions that would be imposed for the Petitioners to Page 4 of 9 // 5 // cooperate with the investigation and in view of the fact that the Petitioners specifically alleges the drugs to have been purchased from the stockiest would thereby discloses the sources of acquisition and procurement of the concerned medicine, custodial interrogation is not required for the Petitioners.
9. Learned counsel for the State, on the other hand, having placed the case diary submitted that pursuant to the seizure of the sample drawn out of the strips seized from the shop of M/s. Maa Budhi Medicine Store and the laboratory test report having received to be one of spurious medicine no manner of leniency can be shown to the Petitioners who allegedly to have supplied it to the retailer in granting pre arrest bail since the custodial interrogation is inevitable in order to unearth the link of the Petitioners vis-à-vis the suppliers whose name does not find place as the sale of medicine precedes the supply received from the stockiest. He further submitted that the joint report of the committee and the laboratory test report shown to be spurious drug prima facie has a wide ramification in the society as the common people are deceived of such medicine as against genuine that causes huge health hazard as happened in this case too but could be averted for the active response and as such the Petitioners are not entitled to the anticipatory bail.
10. Perusal of the case record reveals that pursuant to the formation of the Special Tax Force (Drugs Enforcement Squad) under the direction of the Health and Family Welfare Department in its letter Memo No.14890 dated 2306.2023 and memo No.15465 dated 01.07.2023 and the direction of the Drugs Controller, Odisha, Bhubaneswar vide letter No.3971 dated 21.06.2023 the Drugs Inspector along with STF investigated the matter. In course of Page 5 of 9 // 6 // investigation the team seized the drug from M/s. Maa Budhi Medicine Store. The team sent the sample drug for analysis and the report received along with the comment sent by the manufacturer M/s. Sun Pharma Distribution Limited reveals that the physical comparison of the suspected sample does not comply with their retain/control sample and on analytical comparison it is found that the suspected sample does not comply in respect of Assay and identification. Assay value in suspected sample found zero percentage. As per their opinion the drug sample sent by the Drug Inspector are found to be spurious/counterfeit drug.
11. The joint enquiry undertaken at the behest of the direction issued by the Government of Odisha, Health and Family Welfare Department who carried the enquiry in connection to sell and purchase of alleged spurious drugs PANTOCID DSR capsules batch No.SID0886A, E/D-2/2024 submitted the summarized findings that on verification of stock register of PANTOCID DSR of different batches for the financial year 2022-2023, it is found that different quantities of opening balance in three different stock register in same financial year has been maintained by the Petitioners firm. During investigation of sale invoices PANTOCID DSR, two invoices were detected while in the one the firm has sold 32 strips to one patient and charged an amount of Rs.6,720/-, in another two invoices vide No.1706 dated 9.1.2023 and 1797 dated 16.1.2023 each of quantity 30 strips and amount of only Rs.420/- has been charged in both the cases. Further both the partners of M/s. Maa Budhi Medicine Store have given written statement that they have purchased the alleged batch of drug (which has been drawn as statutory sample by Drug Inspector) from M/s. Ganapati Page 6 of 9 // 7 // Enterprises, Angul, the firm of the present Petitioners. As per the statement of both the partners of M/s. Maa Budhi Medicine Store the raiding team made joint enquiry also at the firm of the Petitioners i.e M/s. Ganapati Enterprises and found the firm to have been granted with drug licence under the partnership of Sri Bhagyadhar Sahu and Sri Hadibandhu Behera. On verification of records, it is found that the Petitioners' firm M/s. Ganapati Enterprises, the wholesaler has purchased PANTOCID DSR capsules batch No.SID0886A, E/D-02/2024 from M/s. Kaveri Agencies, Medical Road, Ranihat, Cuttack of quantity 100 strips and received on 26.06.2022 whereas M/s.Ganapati Enterprises sold 10 strips to M/s.Maa Budhi Medicine Store and has sold the same batch of quantity 10 strips to M/s. Biswal Medical Store, Jagamohanpur, Keonjhar on 17.6.2022 which is before the date of purchase and receipt of the product i.e. the date of sale is prior to the date of purchase. The report further reveals that the Government Analyst, State Drugs Testing & Research Laboratory, Odisha, Bhubaneswar has declared the sample PANTOCID DSR capsules batch No.SID0886A, M/D. 03/2022, E/D 02-2024 (of sample No.97/12-2022/AN/T) is not of standard quality as the sample does not conform to IP in respect of tests for identification and content of Pantoprazole & Domperidone and for the reason that light brown coloured spot were found on the body of the capsules. As the contents of both drugs in the capsules are Nil as per the definition under Section 17B of the Drugs and Cosmetics Act, 1940 the drug is deemed to be spurious.
12. The report further reveals that the CDM and PHO, Angul has replied vide his Office Letter Memo No.725, dated 03.07.2023 that Page 7 of 9 // 8 // the said spurious drug will not give any therapeutic benefits to patient, rather the condition of peptic ulcer will be aggravated and subsequently leads to bleeding into stomach which is presented haematemesis and Melena. So according to him if such spurious drug will be consumed it will be a threat to the health condition and likely to cause such harm on the body that would amount to grievous hurt within the meaning of Section 320 IPC.
13. Time and again the Apex Court observed that, while dealing with anticipatory bail applications, courts must also consider the gravity of the offence, the impact on the society, its ramification. Right to health is a valuable fundamental right guaranteed to the citizen under the Constitution of India. The right to health is inherent to a life with dignity. Therefore, any issue concerning heath of the citizen cannot be compromised in the guise of balancing the right to liberty of a person more so when liberty of such person is under question when he is engaged in commercial activities. In the case in hand, the Petitioners are engaged in dealing with drugs which is found to be spurious in nature. Needless to mention that spurious drug conceals the true identity of the products and deceives the buyers. Hence, persons dealing with such product are ought to remain alert of their activities else would prove highly abortive to the life of individuals. In such an eventuality persons dealing with the activities in any status whether as retailer or wholesaler of the drug remains vulnerable because the availability of such product not only attributes to the health of the citizens but strikes at the root of the fundamental rights guaranteed under the Constitution. Health being the essence of life has to be given paramount consideration. It is in this view that every citizen should Page 8 of 9 // 9 // remain alive to such an issue much less to say about the persons dealing with the drugs. The punishment and penalties prescribed for violation of the provisions under the Drugs and cosmetic Act appears insignificant vis-à-vis the health hazard of a person that may ensue on consumption of spurious drugs which would put the life of an individual at lurch. No Court, therefore, could afford to remain oblivious of an issue when comes before it particularly when the laboratory test of the drug apparently establishes it as spurious. In the instant case there is ample of materials before this Court to suggest that the Petitioners being the wholesaler of the medicine engaged in selling such spurious drug and the source from which it acquired the product and supplied to the retailer makes both of them liable to come within the mischief of the provision under the penal law as well as the provision under the Drugs and Cosmetics Act. The allegations being serious and grave in nature deter this Court to invoke the jurisdiction under Section 438 Cr.P.C. in granting pre-arrest bail.
14. The prayer for anticipatory bail accordingly, deserves no consideration. The ABLAPL stands rejected.
(Chittaranjan Dash) Judge KC Bisoi Signature Not Verified Digitally Signed Signed by: KRUSHNA CHANDRA BISOI Designation: Secretary Reason: Authentication Location: orissa high court Date: 25-Aug-2023 16:13:22 Page 9 of 9