Madhya Pradesh High Court
Rajan Nair vs The State Of Madhya Pradesh on 11 October, 2018
1 M.Cr.C.No.9605 of 2013
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Single Bench : Hon'ble Shri Rajeev Kumar Dubey, J.
Misc. Criminal Case No.9605/2013
Rajan Nair
vs.
State of Madhya Pradesh
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Shri Dilip Pandey, counsel for the applicant.
Shri Akhilesh Singh, Govt. Advocate for the respondent/State.
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ORDER
Reserved on : 04/10/2018 Delivered on : 11/10/2018 This petition has been filed under Section 482 of Cr.P.C. for quashing the proceedings of Criminal Case No.5973/2008 pending against the applicant in the Court of learned Chief Judicial Magistrate, Bhopal for the offence punishable under Sections 276 & 336 read with 34 of IPC.
Brief facts of the case which are relevant for the disposal of the present petition are that Joint Director and Superintendent, Hamidia Hospital, Bhopal, M.P. placed an order to Madhya Pradesh Laghu Udhyog Nigam for the supply of two hundred vials of Ketamine injections. Pursuant to the aforesaid order, M.P. Laghu Udhyog Nigam issued direct supply order to Nandni Medical Lab, Indore to supply two hundred vials of Ketamine injections to Hamidia Hospital, Bhopal. Accordingly, Nandni Medical Lab, Indore supplied aforesaid drug on 14.03.2003. The aforesaid supply was received at the Central Store of Hamidia Hospital on 14.03.2006. That injection was received by Pharmacist Mr. Alkendra Dubey and counter signed by the present applicant, the then Store Incharge of Hamidia Hospital 2 M.Cr.C.No.9605 of 2013 and verified by Dr. Mahesh Upadhyay. It is further alleged that Nandni Medical Lab supplied the injection which was not for human use and for animals treatment and same fact was also mentioned on the packing and label of the injections. The supply of the aforesaid injection in the Hamidia Hospital was published in News Paper and therefore the same fact was come to the notice of other authorities. Accordingly, the President of Madhya Pradesh Laghu Udyog Nigam, Bhopal sent a complaint to Station House Officer, T.T. Nagar, Bhopal to register the crime against M/s. Nandini Medical Lab Pvt. Ltd.. On that police registered Crime No.212/2008 for the offence punishable under Section 336 & 276, 34 of IPC against Arun Kumar Khariya and Prabhat Chandra Khariya and filed charge-sheet against them before the Chief Judicial Magistrate, Bhopal. Thereafter, police further investigated the matter and also made applicant and Alkendra Dubey as accused and filed supplementary charge-sheet against them alleging that the duty of the applicant who was posted as Store Keeper in Hamidia Hospital and Pharmacist Alkendra Dubey was to see the material at the time of receiving the consignment of that injections, but they without seeing that the injection supplied by Nandini Medical Lab is for animal use and not for human use received that injection and supplied it in the hospital for using the same on human being. Thus, he also committed offence under Section 276 & 336 of IPC. Being aggrieved from that, applicant filed this petition.
Learned counsel for the applicant submitted that Smt. Usha Siddharthan and Veera Malik who was staff nurse in the Anesthesia department made indent to supply the Ketamine injections. Accordingly, same were supplied but they did not see before using the supplied injections that it is written on the label of the injections that they are not for humans use and for animals treatments. This was the duty of nurse to read the label of the injections before using the same. Hence they are responsible but police did not file charge sheet against them. Moreover, 12 senior consultants and 24 other doctors have also used these Ketamine injections during operations. They also could not read the note mentioned in the label of the aforesaid injections, "not for human use for animals treatment only"
because that fact was mentioned on labels in very narrow words. There was 3 M.Cr.C.No.9605 of 2013 no side effect in the patients on whom the aforesaid injections were used. In the report of Dean of Anesthesia Department of Gandhi Medical College Bhopal also this fact is mentioned that the patients have not been adversely affected by aforesaid injections. So, no offence is made out against the applicant. There is no evidence on record to show that applicant knowingly supplied that injection to the doctor so no offence under Section 276 of IPC is made out against the applicant. He further submitted that at the time of incident Mr. Alkendra Dubey was the incharge of Injection Cell and, therefore, he received aforesaid injection and the injection was supplied to the Anesthesia Department on its indent by Injection Cell. Applicant has no role in receiving the said injections from supplier and issuing the same to Anesthesia Department for using the same on human beings. Hence, no offence under Sections 279 and 336 of IPC is made out against applicant from the charge sheet. On that basis, he prayed for quashing of the criminal proceedings against the present applicant.
Learned counsel for the respondent/State opposed the prayer and submitted that from the charge sheet offence under Section 276 and 336 of IPC are clearly made out against applicant/accused, so charge sheet cannot be quashed.
This Court has gone through the record and arguments put forth by the both the counsels for the parties. From the statements of Smt. Usha Siddharthan and Smt. Veera Malik and other documents produced by the prosecution along with the charge-sheet prima facie it appears that at the time of incident applicant was the storekeeper in Hamidia Hospital Bhopal. He received the consignment of the said Ketamine injections supplied by the Nandni Medical Lab, Indore to the Hospital and in the packets of the injections and on the label affix on the vials of the said injections it is clearly mentioned that the said injections are not meant for human beings and the same for animals treatment only. It was the duty of the applicant that at the time of receiving the consignment of said injection, he saw that whether the supplied injections was the same as ordered by the Hospital or not. But he did not check this fact at the time of receiving the consignment of said injections. If the applicant was cautious, this fact that company wrongly 4 M.Cr.C.No.9605 of 2013 supplied the injections which were not for human use would have come to his knowledge on the same day. It was also the duty of the applicant who was the storekeeper of the hospital at the time of incident that before supplying the injections to doctors and nurses of the hospital to administered the same on patients to see that whether the injections that are being supplied by him to them were same which was demanded by them or not. But he did not check this fact and in this way he risked the care of many people to whom those injections were administered by his negligent act. So the offence under Section 336 of IPC is clearly made out against the applicant.
On the basis that other persons also liable for that negligence but police did not made them accused and only made applicant accused charge- sheet against the applicant cannot be quashed. The caution note that the aforesaid injections, "not for human use for animal treatment only" was written on the labels of the vials of the injections in so small words that applicant could not read that note is the defence of the applicant which cannot be considered at this stage. On the other hand in the case diary statement of Smt. Veera Malik it is also mentioned that said caution note was also written on the packets of the injections and Store Keeper Rajendra Nair gave him 20 vials of Ketamine in which it is mentioned that not for human use and for animals treatment only.
So from the charge sheet prima facie it appears that applicant without seeing the note written on the packets and labels of the injections supplied by the company that it were not use for human being and for animals treatments only received that injection for human use and supplied that injection to the doctors and nurses of the hospital for using the same on human beings, so offence under Section 336 of IPC is clearly made out against the applicant. If one commits rash and negligent act so as to endanger human life or personal safety of another, he comes under the pale of Section 336 IPC. Rash or negligent act is the gravamen of the offence. That it caused injury to others or hurt to others is not the ingredient of the offence. Such injury or hurt is not required to be proved. Only rash or negligent act must be proved. So only on the basis that in the report of Dean 5 M.Cr.C.No.9605 of 2013 of Anesthesia Department of Gandhi Medical College Bhopal, it is mentioned that there was no side effect on the patients on whom the aforesaid injections were used, it cannot be said that offence under Section 336 of IPC is not made out against the applicant. So offence under Section 336 of IPC is prima facie made out against the applicant from the charge sheet. So charge-sheet cannot be quashed. This court is not inclined to evaluate the evidence on the point that whether offence under Section 276 is also made out or not against the applicant at this stage in exercise of its inherent power which can be used only in the rare of rarest case because applicant has opportunity to raise the point before trial court at the time of charge arguments and he has also remedy to challenge the same by way of revision if occasion so arises.
Hence, the petition is dismissed.
(Rajeev Kumar Dubey) Judge (ra) Digitally signed by RANJEET AHIRWAL Date: 2018.10.11 16:06:58 +05'30'