Himachal Pradesh High Court
___________________________________________________ vs State Of Himachal Pradesh on 5 April, 2024
Author: Sushil Kukreja
Bench: Sushil Kukreja
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. MP (M) No. 2217 of 2023 Reserved: 22.03.2024 Decided on: 05.04.2024 ___________________________________________________ Atul Gupta ....Petitioner Versus State of Himachal Pradesh ...Respondent Coram r to The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1 __________________________________________________ For the petitioner : Mr. N.S. Chandel, Senior Advocate with Mr. Vinod K. Gupta, Advocate.
For the respondent : Mr. Rohit Sharma, Deputy Advocate General.
Sushil Kukreja, Judge The instant bail application has been filed by the petitioner under Section 439 of the Code of Criminal Procedure for releasing him on bail in a complaint case under Section 18(a)(i) read with Sections 17B, 18(a)(vi), 18(c), 27(c), 27(d), 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 08/04/2024 20:45:17 :::CIS 227(b)(ii) of the Drugs and Cosmetics Act, 1940 (hereinafter .
referred to as 'DAC Act').
2. The brief facts of the case, as per the reply/status report filed by the respondent-State, are that a complaint was registered on 22.11.2022 on information that one person named Mohit Bansal was running medicine business at Agra and was involved in the manufacturing of spurious drugs from his manufacturing premises, which is situated near the Jayanti Chowk at Baddi. Information was also received that in the absence of Mohit Bansal his brother-in-law/present petitioner was looking after the manufacturing work of spurious medicines at Baddi. On the same day, a huge stock of spurious medicines was recovered by the Drugs Inspector from said Mohit Bansal during the course of search of vehicle bearing registration No.UP80FC-7530 (Creta Car), at Baddi Police Barrier, the detail of which is given as under:-
Sr. Product Quantity/ Value in Manufacturer name, as per the No name tablets rupees label claim.
1. Zerodol TH4 190100 39,73,090/- M/s IPCA Laboratories Ltd. Melli tablets Jorethang Road Gom Block Bharikhola, South District Sikkim-737121.
2. Roseday 10 28950 3,65,638/- M/s USV Private Ltd. Khasra ::: Downloaded on - 08/04/2024 20:45:17 :::CIS 3 tablets tablets No. 1342/1/2 Hill Top Industrial Area Jharmajri, Baddi, Solan, .
H.P.
3. Montair 10 50720 10,76,684/- Cipla Ltd. Unit II Taza Block tablets Sikkim 737133 India.
3. Said Mohit Bansal could not produce any licence/ authorization for the aforesaid spurious medicines and thereafter on the same very day, during the course of search of recovered:-
r to his godown, the following spurious medicines were also Sr. Product Quantity/ Value in Manufacturer name, as per No. name tablets rupees the label claim.
1. Montair 10 295800 62,79,245/- Cipla Ltd. Sikkim.
tablets
2. Atorva 10 31650 2,15,874/- M/s Zydus Healthcare tablets tablets Sikkim.
3. Roseday-10 97420 12,30,414/- M/s USV Limited Baddi.
tablets tablets
4. Zerodol TH4 71080 14,85,572/- M/s IPCA Laboratories
tablets Limited, Sikkim.
4. Besides the above-mentioned recovered spurious medicines, a huge stock of loose tablets of Calcium, Torsemide and active raw materials as Amplodipine alongwith excepients PvPK 30, plain & printed foils and packaging material used for manufacturing of spurious drugs, was also recovered from the ::: Downloaded on - 08/04/2024 20:45:17 :::CIS 4 said godown and all the drugs and material recovered were .
seized and thereafter three persons, namely, Mohit Bansal, Atul Gupta (petitioner herein) and Vijay Kaushal were arrested on 22.11.2022. During interrogation, accused Vijay Kaushal disclosed that he had done the foiling/primary packing i.e. labeling of the compressed tables at M/s Trizal Formulations in association with other accused persons and thereafter, during search of manufacturing unit on 24.11.2022, a huge quantity of allopathic spurious drugs (loose tablets), raw materials (API and excipients), rubber stereos, scrap of foils and processed material and the machineries and change parts used in the manufacturing and packaging of spurious drugs were also recovered and since the heavy machines, change parts and equipments were used for manufacturing of spurious drugs, as such, the premises of M/s Trizal Formulations, Baddi, Solan was sealed. On 25.11.2022, the shop of accused Mohit Bansal at Agra, U.P. was searched and during search, huge stock of spurious allopathic medicines was recovered and seized by the Drugs Inspector. During investigation, accused Mohit Bansal and the petitioner disclosed that they had taken three room set ::: Downloaded on - 08/04/2024 20:45:17 :::CIS 5 on rent at House No. 262, Mishra Villa, Phase-3, Baddi, Solan, .
H.P., where foils used in the manufacturing of spurious drugs were present. They further disclosed that they had taken one another godown near fire station Baddi for storage of spurious drugs. Accordingly, residence of accused Mohit Bansal and the petitioner situated at House No. 262/3, ground floor, Mishra Villa, Phase-3, Baddi Solan, H.P. was searched and during search, huge stock of loose tablets of calcium citrate, Telmisartan, Drotaverine, packaging material, used rubber stereos, active raw materials alongwith die and punches were recovered from them in presence of the witnesses.
5. During the course of further investigation on 01.12.2022, Mohammad Qaiser Imam and Naresh Kumar, Asst. Manager Zydus Lifesciences Ltd. Ahmedabad submitted that products and foils of their firm which were recovered from the accused persons did not belong to M/s Zydus Lifesciences and thereafter a huge stock of following spurious drugs was also recovered:-
Sr. Product Quantity/ Value in Manufacturer name, as per No. name tablets rupees the label claim.
1. Glimisave 66000 806652/- M/s Eris Lifesciences ::: Downloaded on - 08/04/2024 20:45:17 :::CIS 6 M2 tables tablets Limited, Amingaon North Guwahati Kamrup Assam .
2. Roseday 10 43950 555088/- M/s USV Private Limited tablets tablets Plot No.6 & 7E HPSIDC, Indl. Area Baddi, Solan H.P.
3. MONTAIR 67350 1429705/- M/s Cipla Ltd., Unit II Taza tables tablets Block Rorathang Sikkim.
6. In the reply received from M/s Eris Lifesciences Limited on 16.01.2023, it was confirmed that the drugs of M/s Eris Lifesciences recovered from accused Mohit Bansal and other accused persons were spurious in nature. The test and analysis reports of all samples were received from Regional Drugs Testing Laboratory (RDTL), Chandigarh, wherein it was found that the samples were not of standard quality and also being spurious in nature. During the course of investigation, the statements of the helpers working at M/s Trizal Formulations, namely Shivam Thakur and Naval Kumar were recorded under Section 164, Cr.P.C,
7. The bail application has been filed by the petitioner on the ground that he is innocent and has been falsely implicated in the present case. Learned Senior counsel for the petitioner submitted that there is no evidence either direct or ::: Downloaded on - 08/04/2024 20:45:17 :::CIS 7 indirect connecting the petitioner with the alleged crime. He .
further submitted that the investigation of the case is complete and no recovery is to be effected from the petitioner as such, he deserves to be released on bail.
8. Per contra, the learned Additional Advocate General opposed the bail application on the ground that the petitioner does not deserve to be released on bail as he has been found involved in a serious offence of the manufacture of the drugs which are found spurious. It is also contended that the aforesaid spurious drugs are consumed by the patients which could cause serious results and the minimum sentence provided for manufacturing/ selling and dealing with the spurious drugs is ten years, which may extend to life imprisonment, as such, the petitioner is not entitled to be released on bail.
9. I have heard the learned Senior Counsel for the petitioner as well as the learned Additional Advocate General for the State and also gone through the records carefully. For the disposal of this application for grant of bail, Section 36-AC of DAC Act is relevant, which may be quoted as below:-
::: Downloaded on - 08/04/2024 20:45:17 :::CIS 8"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),-
(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, 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.::: Downloaded on - 08/04/2024 20:45:17 :::CIS 9
(3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail .
under section 439 of the 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 "Magistrate" in that section includes also a reference to a "Special Court" designated under section 36AB."
10. 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.
11. Section 17B of the DAC Act defines the spurious drugs. It provides that a drug 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 substitute for another drug, or ::: Downloaded on - 08/04/2024 20:45:17 :::CIS 10 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:- r "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
(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."
12. Section 27 of the DAC Act provides that the persons found guilty for the manufacture, sale etc. of the ::: Downloaded on - 08/04/2024 20:45:17 :::CIS 11 adulterated and 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:-
"27. Penalty for manufacture, sale, etc., of drugs in contravention of this Chapter.- Whoever, himself or by any other person on his behalf, manufacturers 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."
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12
13. To re-call the facts of the instant case, as per the .
investigation, petitioner Atul Gupta was looking after the spurious drugs manufacturing activities alongwith other activities in the absence of accused Mohit Bansal and he was in regular contact with accused Mohit Bansal through Whatsapp.
As per forensic report, accused Mohit Bansal and the petitioner were sharing information r with each other regarding manufacturing of spurious drugs and accused Mohit Bansal shared manufacturing formula for manufacturing of spurious drug Rosuvastatin 10mg & 20mg with the petitioner alongwith amount deposition slip of the payment given to the owner of Shop No. 22(1), space-9, Baddi, from where the team of Drug Control Department seized huge amount of spurious drugs on 29.11.2022. During the course of investigation, statements of Shivam Thakur and Naval Kumar were recorded under Section 164, Cr.P.C, in which, they revealed that the petitioner was looking after day to day activities at M/s Trizal Formulations for manufacturing of spurious drugs in the absence of accused Mohit Bansal.
::: Downloaded on - 08/04/2024 20:45:17 :::CIS 1314. As per Section 36 AC of the 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. 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 but means something more than prima facie grounds. In the present case, the petitioner has failed to satisfy the conditions for grant of bail, as provided under Section 36 AC of the DAC Act. From the investigation, prima facie, it is evident that the petitioner was knowingly involved in the manufacture of spurious drugs in connivance with other accused, knowing pretty well that the drugs were spurious and he has 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. Merely because he ::: Downloaded on - 08/04/2024 20:45:17 :::CIS 14 is in custody since 22.11.2022 is no ground to override the .
mandatory provisions of the aforesaid Section of the DAC Act.
Moreover, the petitioner is resident of District Auriaya, U.P. and if released on bail, he may flee from justice and it will be difficult to secure his presence during trial. It is needless to mention that the offences under the DAC Act are grave and serious in nature. Therefore, looking into the nature and gravity of offence and severity of punishment, in my considered view, the petitioner does not deserve to be released on bail.
15. In view of the above discussion, the present bail application is dismissed. Pending miscellaneous application(s), if any, also stands disposed of.
16. Be it stated that any expression of opinion given in this order does not mean an expression of opinion on the merits of the case and the trial Court will not be influenced by any observations made therein.
( Sushil Kukreja )
April 05, 2024 Judge
(raman)
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