Allahabad High Court
Arun Kumar vs State Of U.P. And Another on 18 February, 2021
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved On:- 10.2.2021 Delivered On:- 18.2.2021 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 2687 of 2021 Applicant :- Arun Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ajay Sengar Counsel for Opposite Party :- G.A. Hon'ble Siddharth,J.
Heard Shri Ajay Sengar learned counsel for the applicant and learned AGA.
Order on Criminal Misc. Exemption Application This exemption application is allowed.
Order on Criminal Misc. Anticipatory Bail Application The instant anticipatory bail application has been filed on behalf of the applicant, Arun Kumar, with a prayer to release him on bail in Special Case No. 1370 of 2019, under Sections 17-A,18(a) (I), 27(b) & 27(d) of Drugs and Cosmetic Act, 1940 during pendency of trial.
There is allegation against the applicant that he is an accused in Special Case No. 1370 of 2019(State of U.P. Vs. M/s Son of India Pharmacy Private Limited and others) filed as complaint case under sections 17,17-A read with section 18 (a)(i), 27 (b) (i) and 27(d) of the Drugs and Cosmetic Act, 1940.There is allegation in the complaint that sample of a drug manufactured by the company of the applicant was purchased from open market and thereafter sent to Government Analyist U.P. Lucknow for testing. The sample did not conformed to I.P.C. in respect of of vitamin-A. A notice dated 27.2.2019 was sent to the company of the applicant seeking explanation regarding aforesaid sample within seven days. The company of the applicant submitted an explanation on 2.4.2019 stating that it has got the sample tested from the Standard Analytical Laboratory(ND) Private Limited, Delhi and its report is in favour of the company. A request was also made from the Drug Inspector to get sample tested as per official method and inform about the result. Without getting the same tested,the complaint was filed.
Learned counsel for the applicant has pointed out the annexure-12 to the affidavit in support of the anticipatory bail application which is an application dated 19.2.2020 made on behalf of the company of the applicant praying before the court that the applicant's company has statutory right under section 25(4) of the Drugs and Cosmetics Act to have sample retested by Central Drug Laboratory Calcutta it may be sent for re-analysis. Applicant has relied upon the judgement of Apex Court in the case of State of Haryana Vs. Brij Lal Mittal, (1998) 5 SCC 343, wherein Apex court has held that under section 25(3) of the Act the report of the government annalist is conclusive unless the manufacturer within 28 days of the receipt of the report from the drug inspector expresses his willingness to adduce the evidence to the contrary. Section 25(4) of the Act makes it clear that right to get the sample tested by Central Government Laboratory through the court accrues to the accused only if he had notified his intention earlier as per section 25(3) of the Act. The Apex court in the present case found that the manufacturer did not exercised its right under section 25(3)of the Act and therefore benefit of section 25(4) of the Act was held not available to the accused.
Learned AGA has opposed the prayer for anticipatory bail of the applicant. He has submitted that in view of the seriousness of the allegations made against the applicant, he is not entitled to grant of anticipatory bail. The apprehension of the applicant is not founded on any material on record. Only on the basis of imaginary fear anticipatory bail cannot be granted.
After considering the arguments advanced by the learned counsel for the applicant and learned A.G.A, this court finds that by the notice dated 27.2.2019 to the company of the applicant was informed that the sample of the drugs manufactured by the company has been found by government analyst U.P. has not conforming (I.P) content in respect of vitamin-A, the test report was enclosed. The company was expected to submit reply within seven days. The reply to the aforesaid notice dated 27.2.2019 was given by the company on 2.4.2019 but no request was made for testing of the sample from Central Laboratory, therefore, judgement of the Apex court in the State of Haryana Vs. Brij Lal Mittal( Supra) will not be of any assistance to the applicant. To the same effect judgement of the Apex Court in the case of M/s Medicamen Biotech Ltd. & anotherVs. Rubin Rubina Bose, Drug Inspector(2008) (7) SCC,196 has been relied upon which is again distinguishable on facts. Relaince upon the judgement of Rajasthan High Court in the case of M/s Endurance Health Care Ltd. and another 2018 (3) Cri.L.R. (Raj),1372 has also been made wherein it has been held that where the complaint does not disclosed which accused was incharge and responsible for day to day affairs of the company complaint is bad. In the present case Vivekanand Yadav, who is accused -opposite party no.2 in the complaint has been mentioned as such a person. The other case laws relied upon by the learned counsel for the applicant are regarding implication of directors of the company which is not relevant for the applicant since he is not director.
No good ground has been made out for enlarging the applicant on anticipatory bail .
Accordingly the anticipatory bail application is rejected.
Order Date :- 18.2.2021 Atul kr. sri.