Bombay High Court
Pravin Sukhraj Jain vs The State Of Maharashtra on 30 September, 2020
Author: Sandeep K. Shinde
Bench: Sandeep K. Shinde
12-ABAST-2109-2020.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANT. BAIL APPLICATION (ST) NO.2109 OF 2020
Pravin Sukhraj Jain ... Applicant
Vs
The State of Maharashtra ... Respondents
...
Mr. Arvind J. Jaiswar for the Applicant. Mr. Raja Thakre, Senior Advocate with Mr. Siddharth Jagushte for Amicus Curiae.
Mrs. Veera Shinde, APP for the Respondent-State.
CORAM : SANDEEP K. SHINDE J.
DATE : 30TH SEPTEMBER, 2020.
P.C. :
Heard Mr. Jaiswar, learned counsel for applicant and Mr. Raja Thakre, learned Senior Counsel with Mrs. Shinde, Additional Public Prosecutor, for the State.
2 On 16th September, 2020, after hearing Mr. Jaiswar, learned counsel for applicant, the State was directed not to arrest the applicant till further orders. These directions were issued in the view of the judgment of the Shivgan 1/17 ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 01:29:32 ::: 12-ABAST-2109-2020.odt Apex Court in the case of Union of India v. Ashok Kumar Sharma dated 28th August, 2020. Apex Court in the judgment had examined, inter-play between the provisions of the Code of Criminal Procedure, 1970 ('Cr.P.C.' for short) and the Drugs and Cosmetics Act, 1940 ('Act' for short) and the questions before the Apex Court were (I) Whether in respect of ofences falling under Chapter IV of the Act, FIR can be registered under Section 154 of the Cr.P.C. (ii) Whether Section 32 of the Act supplants procedure for investigation of the ofences under the Cr.P.C. and (iii) Can inspector under the Act, arrest the person in connection with the ofences under Chapter IV of the Act. . Following are the conclusions culled out by the Apex Court; thus, THE CONCLUSIONS/DIRECTIONS I. In regard to cognizable ofences under Chapter IV of the Act, in view of Section 32 of the Act and also the scheme of the CrPC, the Police Ofcer cannot prosecute ofenders in regard to such ofences. Only the persons mentioned in Section 32 are entitled to do the same.
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12-ABAST-2109-2020.odt II. There is no bar to the Police Ofcer, however, to investigate and prosecute the person where he has committed an ofence, as stated under Section 32(3) of the Act, i.e., if he has committed any cognizable ofence under any other law. III. Having regard to the scheme of the CrPC and also the mandate of Section 32 of the Act and on a conspectus of powers which are available with the Drugs Inspector under the Act and also his duties, a Police Ofcer cannot register a FIR under Section 154 of the CrPC, in regard to cognizable ofences under Chapter IV of the Act and he cannot investigate such ofences under the provisions of the CrPC.
IV. Having regard to the provisions of Section 22(1)(d) of the Act, we hold that an arrest can be made by the Drugs Inspector in regard to cognizable ofences falling under Chapter IV of the Act without any warrant and otherwise treating it as a cognizable ofence. He is, however, bound by the law as laid down in D.K. Basu (supra) and to follow the provisions of CrPC.
V. It would appear that on the understanding that the Police Ofcer can register a FIR, there are many cases where FIRs have been registered in regard to cognizable ofences falling under Chapter IV of the Act. We fnd substance in the stand taken by learned Amicus Curiae and direct that they should be made over to the Drugs Inspectors, if not already made over, and it is for the Drugs Inspector to take action on the same in accordance with the law. We must record that we are resorting to our power under Article 142 of the Constitution of India in this regard. VI. Further, we would be inclined to believe that in a number of cases on the understanding of the law relating to the power of arrest as, in fact, evidenced by the facts of the present case, police ofcers would have made arrests in regard to ofences under Chapter IV of the Act. Therefore, in regard to the power of arrest, we make it clear that our decision that Police Ofcers do not have power to arrest in respect of cognizable ofences under Chapter IV of the Act, will operate with efect from the date of this Judgment. VII. We further direct that the Drugs Inspectors, who carry out the arrest, must not only report the arrests, as provided in Section 58 of the CrPC, but also immediately report the arrests to their superior Ofcers. Shivgan 3/17 ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 01:29:32 :::
12-ABAST-2109-2020.odt
151. In view of our conclusions/directions and subject to the same, we would, on the facts, uphold the impugned Judgment and dismiss the Appeal. We record our appreciation for the enlightening submissions of the learned Amicus Curiae Shri S. Nagamuthu. . Thus, the Apex Court directed that ' no further investigation can be done by the police ofcer in respect of ofences, falling under Chapter IV of the Drugs and Cosmetics Act, 1940. However, it is in the interest of justice that FIRs are made over by the police ofcers to concerned Drugs and Inspector at the earliest.' 3 In view of the aforesaid directions, this Court had directed the State, not to arrest the applicant till further orders. However, he was directed to report to the Investigating Ofcer since ofences punishable under the Essential Commodities Act, 1955, are also registered against the applicant, which police are empowered to investigate.
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12-ABAST-2109-2020.odt 4 At the outset, it may be stated that applicant did not attend the police station, though directed. Learned counsel for applicant would submit that applicant's friend Mr. Bhanushali reported to the Investigating Ofcer and submitted certain documents. In view of this fact, I hold and conclude that applicant did not attend the police station and co-operate in the investigation.
5 Prosecution Case on 22nd July, 2020, on the tip of, ofcers attached to Anti Extortion Cell, Thane, laid a trap and apprehended Arun Ramji Singh and two persons who were likely to sell drug "Remdesivir" to a customer. On personal search of Arun Singh, two vials of "Remdesivir", Actemra , Tocilizumb injections were recovered and seized. Two of his companions, Sudhakar Shobhit Giri and Ravindra Mohan Shinde, upon whose personal search, their phones and Shivgan 5/17 ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 01:29:32 ::: 12-ABAST-2109-2020.odt tourist cars were seized. Co-accused Arun Ramji Singh, in the course of the investigation , disclosed the name of Amitabh Das, resident of Navi Mumbai, who had supplied Remdesivir injection and tocilizumab injection to him for Rs.34,000/- and Rs.40,000/- respectively. Thereupon, the Investigating Ofcer proceeded to residence of Amitabh Das at Navi Mumbai. In enquiry, Amitabh Das disclosed that two Remdesivir injection and Tocillizumab injections were supplied and sold to him by the applicant, who runs a business under the name and style of Pharma Care Specialities at Wadala. Few other drugs and tablets were also found in possession of co-accused, Amitabh Das. Drugs found on the person of the Arun Ramji Singh and Amitabh Das were seized under running panchanama dated 21 st July, 2020. Taking cue from the disclosure made by co-accused Amitabh Das, police proceeded to Wadala, where they found establishment of the applicant was closed. Therefore, a notice was pasted on the shutter of his establishment/shop. Notice is at Page number 35 of the Shivgan 6/17 ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 01:29:32 ::: 12-ABAST-2109-2020.odt application. Vide this notice, applicant's shop was sealed and he was directed to contact the Anti Extortion Cell Crime Branch, Thane city. Shop/Establishment of the applicant was temporarily sealed so that evidence is not destructed. Applicant was thus informed about Crime No.288 of 2020 and ofences registered under Section 420 read with Section 34 of the Indian Penal Code, 1860; under Sections 3(2)(c) read with Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 and under Section 18(3) punishable under Section 27(b) of the Act.
6 Apprehending the arrest, in connection with this crime, applicant sought pre-arrest bail. However, it was declined by the learned Sessions Judge, Thane. Thus, applicant has approached this Court, for pre-arrest bail. 7 The Hon'ble Apex Court in the judgment of the Union of India v. Ashok Kumar Sharma and Ors. in Criminal Appeal No.200 of 2020 has barred police from Shivgan 7/17 ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 01:29:32 ::: 12-ABAST-2109-2020.odt investigating into the ofences under Chapter IV of the Act but held that there is no bar to the police ofcer to investigate and prosecute the person where he has committed any cognizable ofence under any other law. In the case in hand, ofences registered against the applicant are not only under the Act but also under the provisions of the Essential Commodities Act, 1955.
8 Mr. Thakre, learned Senior Counsel for the State, relies on Section 2-A of the Essential Commodities Act, 1955 to submit that the "drugs" is essential commodity, specifed in the Schedule appended to Act. He would further submit expression 'Drugs' mean drugs as defned in Clause
(b) of Section 3 of the Act which include all medicines for internal and external use of human-beings in the diagnosis, treatment or prevention of any disease or disorder in human-beings or animals, including preparations applied on human body for the purpose of repelling insects like mosquitoes. Mr. Thakre would rely on the provisions of Shivgan 8/17 ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 01:29:32 ::: 12-ABAST-2109-2020.odt Section 7 of the Essential Commodities Act, 1955 to submit, penalties to be inficted upon a person, who contravens any "Order" made under Section 3. Expression "Order" is defned under Section 2 Clause (cc) of the Essential Commodities Act, 1955, which includes, a direction issued thereunder. Mr. Thakre, learned Senior Counsel, would, therefore, urge that in exercise of the powers under Section 3 of the Essential Commodities Act, 1955, the Central Government issued the Drugs (Prices Control) Order, 2013, which was notifed on 22nd March, 2016. Submission is that, that if a person commits breach or contravenes any provision of the Drugs (Prices Control) Order, 2013 ("Said Order" for short) , it would attract a penalty under Section 7 of the Essential Commodities Act. Mr. Thakre, therefore, invited my attention to Clause 26 of the said order, which reads as under:
"26. Control of sales prices of formulations.- No person shall sell any formulation to any consumer at a price exceeding the price specifed in the current price list or price indicated on the label of the container or pack thereof, whichever is less."Shivgan 9/17 ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 01:29:32 :::
12-ABAST-2109-2020.odt Besides, learned Senior Counsel has also brought to my notice and placed on record communication dated 6th July, 2020 issued by the Drug Controller General (I). This letter reads as under:
Ministry of Health & Family Welfare Directorate General of Health Services Central Drugs Standard Control Organization (Enforcement Division) FDA Bhawan, Kotla Road New Delhi-110002 E-mail: [email protected] Dated:- 6/7/2020.
To, . All States/UT Drugs Controller, Subject:- Immediate enforcement needed to stop the sale of COVID-19 drug Remdesivir above MRP-reg.
Sir, Considering the emergency and unmet medical need for Covid-19 disease, CDSCO has approved Restricted Emergency Use of Remdesivir injectable formulation for treatment of patients with severe Covid-19 infection subject to various conditions and restrictions.
Shivgan 10/17 ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 01:29:32 ::: 12-ABAST-2109-2020.odt Initially, Remdesivir formulation of the innovator was approved on 01.06.2020 for import and marketing the drug in the country. However, the importer is yet to import the drug after taking import licence from CDSCO. Subsequently, CDSCO has granted permission to manufacture and market the drug to M/s. Cipla, M/s. Hetro and M/s. Mylan Laboratory for same indication, conditions and restrictions.
In this Context, this ofce has received a letter from M/ s. Local circles, through MoHFW, raising concerns regarding black marketing and over pricing of the drug Remdesivir by certain unscrupulous persons. (copy enclosed) In view of above, you are requested to instruct your enforcement ofcials to keep strict vigil on the matter to prevent the black-marketing and sale of drug Remdesivir Injection above MRP.
Action taken in the matter may please be intimated to this ofce at the earliest.
Yours faithfully, Sd/-
(Dr. V.G.Somani) Drugs Controller General (I) Encls: As above Copy to:
1. All Zonal and Sub-zonal ofces of CDSCO to co-
ordinate with SLA in the matter Copy for information to:
1. Chairman, NPPA, 3rd/5th Floor, YMCA Cultural Center Building 1, Jai Singh Road, New Delhi, 110001 ([email protected])
2. OSD, MoHFW, 243-A, Nirman Bhawan, New Delhi- 110011 ([email protected])
3. PS to JS(R) Shivgan 11/17 ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 01:29:32 ::: 12-ABAST-2109-2020.odt Mr. Thakre has also invited my attention to the notice dated 2nd July, 2020, which reads as under:
NOTICE Dated: 02-07-2020 Approval of Favipiravir Tablets to Glenmark Pharmaceuticals and Remdesivir Injection to Cipla Ltd., Hetero Drugs and Mylan Labs Considering the emergency and unmet medical need for Covid-19 disease, CDSCO has approved Restricted Emergency Use of Remdesivir Injectable Formulations for treatment of patients with severe COVID-19 infection and Favipiravir Tablets for mild to moderate COVID-19 infection subject to various conditions and restrictions.
Initially, Remdesivir formulation of the innovator was approved on 01.06.20 for import and marketing the drug in the country. However, the importer is yet to import the drug after taking import licence from CDSCO.
Further, on 20.06.2020 and 02/07/2020, CDSCO has granted permission to manufacture and market the same injectable formulations of the drug to the indigenous manufacturers for the same indication, restriction and conditions for uses as stipulated for Shivgan 12/17 ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 01:29:32 ::: 12-ABAST-2109-2020.odt innovator's product. This will ensure early access of Remdesivir for treatment of severe COVID patients in the country under the Restricted Emergency Use.
Favipiravir Tablet has been approved for manufacture and marketing on 19.6.2020.
Both Remdesivir and Favipiravir formulations are required to be sold under the prescription of medical specialists only. Further, Remdesivir formulations are required to be supplied for use only to the hospital / institutions to ensure proper use of the drug as recommended. In both the cases, informed consent of the patient or his / her representative in the prescribed form is mandatory before initiating the treatment."
9 Upon reading these two communications along with the provisions of the Drugs (Prices Control) Order, 2013, it may be stated that these orders were issued to ensure proper supply and distribution of Remdesivir for treatment of patients with severe COVID-19 infection and Favipiravir tablets for mild to moderate COVID-19 infection.
Obviously, controlling order and the directions issued by the Shivgan 13/17 ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 01:29:32 ::: 12-ABAST-2109-2020.odt Drugs Controller General (I), were in spirit of Section 3 of the Essential Commodities Act, 1955. It may be stated that the Drugs Controller General (I) has made it clear that the Central Drugs Standard Control Organization has granted permission to manufacture and market drugs to M/s. CIPLA, M/s. Hetro and M/s. Mylan Laboratory for marketing drugs in the country. These directions were issued to prevent and/or curtail black marketing and over pricing of the drug Remdesivir by certain unscrupulous persons. These directions also ensure, early access of Remdesivir for treatment of severe Covid patients in the country under the restricted emergency use only on prescription by Doctors/Hospital.
10 Material on record prima-facie suggests, co- accused, who were found in possession of the drugs, Remdesivir, Actemra, was in contravention or in breach of Drugs (Prices Control) Order, 2013 and further suggest, they were black-marketing and over-pricing these drugs. Shivgan 14/17 ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 01:29:32 ::: 12-ABAST-2109-2020.odt 11 So far as the present applicant is concerned, it may be stated that soon after his name was disclosed by the co-accused, he was not traceable and his whereabouts were not known. In fact, his establishment/shop was found closed. However, as stated, shop was sealed temporarily for the purpose stated in the notice pasted on his shop. Learned counsel for applicant would urge that applicant has no business to deal in prohibited Remdesivir drug and he had not sold drug to the co-accused, Mr. Das. It appears from his submission that Mr. Das in past was his partner but for years he had no business dealings with him. But learned counsel would also urge that Mr. Das owes applicant a substantial amount, a debt, arising from transaction between applicant's frm and Mr. Das. It may also be stated that since after shop of the applicant is sealed, he is not available for interrogation. Though he was directed to report to the Investigating Ofcer, he did not report and co-operate in the investigation. He ventured to Shivgan 15/17 ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 01:29:32 ::: 12-ABAST-2109-2020.odt send one Mr. Bhanushali to the police station. Therefore, it is a clear case of non-co-operation in the investigation. Though, it is contended that applicant has no connection with Mr. Das, however, Call Detail Records produced by the prosecution for perusal indeed makes it clear that applicant was in constant touch with co-accused Mr. Das. Prima-facie, material on record, suggests applicant's complicity in subject crime.
12 Thus, taking into consideration facts of the case and conduct of the applicant, in my view, prosecution cannot be denied applicant's custody for investigation. In my view, no case is made out for granting pre-arrest bail. It may also be stated that ofences under the Essential Commodities Act, 1955 are cognizable. Besides, Section 10(c) presumes 'culpable state of mind'. Thus, in view of the material on record, application is rejected. Shivgan 16/17 ::: Uploaded on - 01/10/2020 ::: Downloaded on - 02/10/2020 01:29:32 ::: 12-ABAST-2109-2020.odt 13 At this stage, learned counsel for applicant, on instructions makes a statement that, applicant shall surrender to the police on 1st October, 2020 at 11.00 a.m. Statement is accepted.
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