Himachal Pradesh High Court
Brijesh Kumar vs State Of Himachal Pradesh on 29 December, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) Nos. 2369 & 2368 of 2023 Reserved on: 29.11.2023 Date of Decision: 29.12.2023.
1. Cr.MP(M) No.2369 of 2023 Brijesh Kumar ...Petitioner Versus State of Himachal Pradesh ..Respondent
2. Cr.MP(M) No.2368 of 2023 Virender Kumar ...Petitioner Versus State of Himachal Pradesh ...Respondent Coram Hon'ble Mr. Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes For the Petitioner(s) : Mr. Ajay Kochhar, Sr. Advocate, with Mr. Anubhav Chopra & Mr. Vivek Sharma, Advocates in both the petitions.
For the Respondent/State : Mr Jitender Sharma, Additional Advocate General with Mr. Lovely Thakur, Drug Inspector, HQ Baddi, Solan, H.P. Rakesh Kainthla, Judge The petitioners have filed the present petitions for seeking regular bail in complaint no. 1 of 2023 filed by the Drug 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Inspector, Baddi for the commission of offences punishable under Section 18(a)(i) read with Sections 17 and 17B, 18(a)(vi), 22(3) and Section 36D of the Drugs and Cosmetics Act, 1940.
2. Briefly stated, the facts giving rise to the present petitions are that the Drug Inspector received a secret information on 22.11.2022 that Mohit Bansal, who was running a business of medicines at Agra was involved in manufacturing of spurious drugs on his premises situated at Jyanti Chowk, Baddi. He would carry the spurious drugs in his vehicle. The search of the vehicle bearing registration no. UP-80--FC-7530 belonging to Mohit Bansal was conducted on 22.11.2022 at Baddi, Police Barrier. Zerodol TH4, Roseday 10 and Montair 10 tablets were recovered from his possession. He could not produce any license or authorization to carry the drugs required under the Drugs and Cosmetics Act, 1940. The search of the godown of Mohit Bansal was conducted on the same day. Atul Gupta and Vijay Kaushal were arrested for manufacturing the spurious drugs. Names of Shivom and Naval were discovered during the investigation, who were involved in the compression of the medicines through Idreesh Mohammad. Naresh Kumar was also found to be involved in the manufacturing of spurious drugs. The drug 3 Inspector filed the complaint against these persons. The investigation continued and as per the confessional statement of Idreesh Mohammad, the foil used for manufacturing of spurious drugs were stated to be supplied by M/s Adarsh Foils for printing the labels. They were arrested.
3. A supplementary complaint was filed, which is pending adjudication.
4. The petitioners filed separate bail petitions asserting that there is no legally admissible evidence to show their involvement. The confessional statement made by Mohammad Idreesh is inadmissible in law. The petitioners are in the business of printing the labels and the foils. They could not have been aware of the fact that M/s Trizal Formulations was manufacturing spurious drugs. The petitioners never remained associated with Mohammad Idreesh or any other employee of M/s Trizal Formulations for printing or labelling of foil. The petitioners were earning their livelihood by printing the labels for different pharmaceutical companies. They were falsely implicated. A supplementary complaint has been filed before the Court and the petitioners are not required for any purpose. They 4 would abide by all the terms and conditions which may be imposed by the Court. Hence, the petitions.
5. A status report was filed giving the details of the recovery of the spurious drugs and the involvement of various persons. It was asserted that Mohammad Idreesh disclosed that M/s Adarsh Foils, Shivalik Nagar, Baddi had printed the foils. Petitioners were present on the premises on 19.06.2023 and they disclosed that they had destroyed the cylinder used for printing and labelling of spurious drugs. Petitioner Virender submitted a copy of the payment received from Mohammad Idreesh and artwork of other spurious medicines. A diary containing the details of the payments to Adarsh Foils was recovered from the shop of Mohammad Idreesh. The mobile phones of the petitioners were seized and sent to the laboratory for analysis and recovery of deleted conversations, photographs and other details. The petitioners admitted during the interrogation that they had supplied the printed foils of the medicine Roseday to Mohammad Idreesh. They also disclosed that Rajni Bhargava Director of M/s Cyper Pharma purchased printed labels of medicine Bio-D3 plus product. They also disclosed that they had supplied the material/printed foil/label for manufacturing 5 spurious drugs. Petitioner-Virender disclosed that he had destroyed all cylinders used for manufacturing/labelling of foils used in the manufacturing of spurious drugs when they came to know of the arrest of Rajani Bhargava. The hard drive of the computer containing the information of the spurious drugs artwork and details of various foils and labels printed by them was seized. Mr Chander Kant, a representative of M/s Macloeds Pharma disclosed that he had never shared the artwork with M/s Aadarsh Foil for labeling and printing of their product Bio D3 plus. The petitioners failed to produce written authorization from M/s Cipla Ltd., M/s USV Ltd., & M/s Macloeds Pharma for printing/labelling of foil of Montair 10, Rose and Bio-D3 plus, which were recovered by the Drug Inspector. Therefore, it was prayed that the present petitions be dismissed.
6. I have heard Mr Ajay Kochhar, learned Senior Counsel assisted by Mr Anubhav Chopra & Mr Vivek Sharma, learned counsel for the petitioner and Mr Jitender Sharma, learned Additional Advocate General, for the respondent/State.
7. Mr. Ajay Kochhar, learned Senior Counsel submitted that the case of the complainant is based upon the statement 6 made by the co-accused, which is inadmissible. As per the prosecution case, the Zerodol TH 4, Roseday 10 and Montair 10 tablets were recovered. The artwork of any of these drugs was never recovered from the premises of the petitioners. The petitioners have not dealt with Idreesh Mohammad and they should not be detained based on a false statement made by him. In any case, the petitioners are involved in the printing of the labels and the foils and cannot be held liable for the manufacturing of the spurious drugs; therefore, he prayed that the present petitions be allowed and the petitioners be released on bail.
8. Mr Jitender Sharma, learned Additional Advocate General for the respondent/State submitted that the manufacturing includes printing and the petitioners are also liable for manufacturing the spurious drugs. The requirement of Section 36AC of the Drugs Act has not been satisfied in the present case and the petitioners cannot be released on bail. Hence, he prayed that the present petitions be dismissed.
9. I have given considerable thought to the submissions at the bar and have gone through the record carefully. 7
10. The parameters for granting bail were considered by the Hon'ble Supreme Court in Bhagwan Singh v. Dilip Kumar @ Deepu @ Depak, 2023 SCC OnLine SC 1059, wherein it was observed as under:-
"12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;
(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations;
(b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.
(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge.
(d) Frivolity of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail.8
13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts has been explained in the following words:
"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688] and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124].)"
11. A similar view was taken in State of Haryana vs Dharamraj 2023 SCC Online 1085, wherein it was observed:
7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the 9 grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the relevant principles were restated thus: '9. ... It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.'
12. The present case has to be decided as per the parameters laid down by the Hon'ble Supreme Court. 10
13. The term 'Drug' has been defined under Section 3(b) of the Drugs and Cosmetics Act, 1940 as under:
(b) "drug" includes--
(i) all medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings or animals, including preparations applied on the human body for the purpose of repelling insects like mosquitoes;
(ii) such substances (other than food) intended to affect the structure or any function of the human body or intended to be used for the destruction of 11[vermin] or insects which cause disease in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette;
(iii) all substances intended for use as components of a drug including empty gelatin capsules; and
(iv) such devices intended for internal or external use in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette, after consultation with the Board;]
14. The term 'Manufacturing' has been defined under Section 3(f) as under:-
(f) "manufacture" in relation to any drug or cosmetic includes any process or part of a process for making, altering, ornamenting, finishing, packing, labelling, breaking up or otherwise treating or adopting any drug or cosmetic with a view to its 11 sale or distribution but does not include the compounding or dispensing of any drug, or the packing of any drug or cosmetic, in the ordinary course of retail business; and "to manufacture"
shall be construed accordingly;
15. The term 'Spurious Drug' has been defined in Chapter 4 in Section 17(B) of the Drugs and Cosmetics Act as under:
"17-B. 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.
16. Section 27 of the Drugs Act provides for punishment and reads as under:
27. Penalty for manufacturer, sale, etc., of drugs in contravention of this Chapter.--Whoever, himself or by any other person on his behalf, manufactures for sale or 12 for distribution, or sells, or stocks or exhibits or offers for sale or distributes,--
(a) any drug deemed to be adulterated under Section 17-A or spurious under Section 17-B and 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 Section 320 of the Indian Penal Code (45 of 1860), 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 ten 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;
17. It is apparent from the combined reading of these provisions that a person who himself or by any other person on his behalf manufacturers for sale or distribution, or sells, stocks, exhibits or offers for sale or distributes any drug deemed to be spurious under Section 17B shall be punishable. Therefore, to punish a person, the drug has to be spurious within the meaning of Section 17B and it has to answer the definition of the Drug provided in Section 3 (b). Only the person, who manufactures any spurious drug can be held liable for the punishment and the process of manufacture of the drug will include making, altering, 13 ornamenting, finishing, packing labelling, breaking up or otherwise treating or adopting any drug with a view to its sale or distribution.
18. In the present case, the allegations against the petitioners are that they had printed the foil, in which, the drugs were packaged and sold. It is not the case of the prosecution that the petitioners had taken part in any other process apart from the printing. The prosecution relied upon the statement of Brijesh Kumar, in which, he admitted that he had printed the foil and had handed it over to various firms. He also stated that the payment is being made to him and he is printing the foils for various persons. The prosecution also relied upon the statement of Mohammad Idreesh, in which, he stated that Mohit Bansal had given him the number of foil printing press. He could identify the premises of the printer. Mohit Bansal had directly purchased the foil from Virender. The prosecution also recovered some foils and various labels from the premises of the petitioners. They also recovered the details of the payment made to the petitioners.
19. Thus, as per the prosecution, the petitioners were involved only with the printing. The term 'printing' is not 14 included in the definition of the manufacture and prima facie, it is doubtful that the petitioners can be held liable for the manufacture of the spurious drugs.
20. Heavy reliance was placed upon Rules 94 and 96 which deal with labeling. Rule 94 provides that the labels shall contain the details provided therein. Rule 96 deals with the manner of the labelling. It appears from these rules that they deal with the process after the drugs have been manufactured and before they are sent for distribution/sale. These rules do not deal with the process before the manufacture of the drug or ancillary to the manufacture of the drugs. Therefore, these rules will prima facie not apply to the present case. In any case, if there is a violation of the rules that will not amount to the manufacture of spurious drugs attracting the provisions of Section 27 of the Drugs and Cosmetics Act.
21. It was submitted that the term 'manufacture' included labelling, which means that the printing of the foil is an integral part of the manufacture. This submission cannot be accepted. The ordinary meaning of a label (Verb) according to the Cambridge Dictionary is to fasten a label to something. Merriam- 15 Webster Dictionary describes the meaning of the term label (verb) as affixing a label to something. Collins Dictionary states that if something is labelled, a label is attached to it. Britannica Dictionary defines the term label (Verb) as putting a word or name on something to describe or identify it. Oxford Learner Dictionary defines the term label (Verb) as fixing a label on something or writing information on something.
22. Thus, the common meaning of the term labelling as per the English language dictionaries is to put a label on to something which pre-supposes that a label, which is being affixed has already been printed.
23. Rules 94 and 96 mention that the name of the drug, name and address of the manufacturer, batch or lot number, date of expiry etc. shall be mentioned on the drug. The other particulars have also been given. Rule 96 provides the manner of the labelling. These rules also support the definition of labelling as affixing something or giving a name to it describing the contents of the drug and other details.
24. The Drugs and Cosmetics Act is a penal statute and is to be construed strictly. It was laid down by the Hon'ble Supreme 16 Court in Commr. of Customs v. Dilip Kumar & Co., (2018) 9 SCC 1:
2018 SCC OnLine SC 747 that a penal statute has to be construed strictly. It was observed:
24. In construing penal statutes and taxation statutes, the Court has to apply strict rules of interpretation. The penal statute which tends to deprive a person of a right to life and liberty has to be given strict interpretation or else many innocents might become victims of discretionary decision-making.
25. It was laid down by the Hon'ble Supreme Court in Standard Chartered Bank v. Directorate of Enforcement, (2005) 4 SCC 530: 2005 SCC (Cri) 961: 2005 SCC OnLine SC 938 that a penal statute should be strictly construed and the court must see that the thing charged is an offence. It should not strain the words of the statutes. It was observed:
It is true that all penal statutes are to be strictly construed in the sense that the court must see that the thing charged as an offence is within the plain meaning of the words used and must not strain the words on any notion that there has been a slip that the thing is so clearly within the mischief that it must have been intended to be included and would have been included if thought of. All penal provisions like all other statutes are to be fairly construed according to the legislative intent as expressed in the enactment. Here, the legislative intent to prosecute corporate bodies for the offence committed by them is clear and explicit and the statute never intended to exonerate them from being prosecuted. It is sheer violence to common sense that the legislature intended to punish the corporate bodies for minor and silly offences and 17 extend immunity of prosecution to major and grave economic crimes.
26. Therefore, prima facie, printing cannot be added when it has not been included in the definition of the manufacture by the legislature.
27. The spot memo prepared by the Drug Inspectors mentions that Brijesh Kumar disclosed that he or the firm is not directly involved in the business of the drugs but they are conducting business of foil printing used for Allu Allu/strip/blister packing of the drugs or Nutraceuticals and same are supplied to the manufacturer against their order. This spot memo also shows that the petitioners are not labelling the drugs in a sense that they are not putting something to the drugs after it has been manufactured but they are supplying the pre-
printed labels (noun), which are thereafter put on the drugs by the process of labelling (verb) by some other person. Hence, prima facie, the petitioners are not involved in the process of labelling.
28. The team of the Drug Inspector had not found the foils of the spurious drugs Zerodol, Roseday or Montair 10 but they had found the labels of some other drugs which were stated 18 to have been manufactured by Macloeds Pharmaceuticals for which no order was placed by the Macloeds Pharma to the petitioners. The complaint pertains to the manufacture of Zerodol, Rosesay and Montair. Hence, prima facie, there is insufficient material to show the involvement of the petitioners in the manufacture of these drugs. Therefore, the provisions of Section 36 AC of the Drugs and Cosmetics Act do not apply to them.
29. The petitioners have been in custody since 19.06.2023. The complaint has already been filed against them. The Drug Inspector has already recovered the hard disk containing the artwork and the labels, therefore, they are not in a position to destroy the evidence. The Drug Inspector is relying upon the statements made by the petitioners against themselves and the statement made by Idreesh Mohammad. Mohammad Idreesh is stated to be in custody and the petitioners would not be in a position to influence him, even, if they are released on bail.
30. Therefore, the present petitions are allowed and the petitioners are ordered to be released on bail subject to their furnishing bail bonds in the sum of ₹ 1,00,000/- each with one 19 surety each in the like amount, to the satisfaction of the learned Trial Court. While on bail the petitioners will abide by the following conditions:
(i) The petitioners will attend the trial on each and every date of hearing and if they are unable to do so, they will seek an exemption from the Court by filing an appropriate application,
(ii) The petitioners will not intimidate the witnesses nor will they influence any evidence in any manner whatsoever,
(iii) The petitioners shall not seek unnecessary adjournments and do any other act to hamper the progress of the trial.
(iv) The petitioners will not leave the present address for a continuous period of seven days without furnishing the address of the intended visit to the concerned Police Station, Drug Inspector and the Court.
(v) The petitioners will furnish their mobile numbers, and social media contacts to the Police, Drug Inspector and the Court and will abide by the summons/notices received from the Police/Court through SMS/WhatsApp/Social Media Account. In case of any change in the mobile number or social media accounts, the same will be intimated to the 20 Police/Court within five days from the date of the change.
31. It is clarified that if the petitioners misuses the liberty or violates any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail.
32. The observations made hereinabove are regarding the disposal of this petitions and will have no bearing, whatsoever, on the case's merits.
33. The petitions stand accordingly disposed of. A copy of this order be sent to the Superintendent, Sub Jail Solan and the learned Trial Court by FASTER.
34. A downloaded copy of this order shall be accepted by the learned Trial Court while accepting the bail bonds from the petitioners and in case, said Court intends to ascertain the veracity of the downloaded copy of the order presented to it, same may be ascertained from the official website of this Court.
(Rakesh Kainthla) Judge 29th December, 2023 (Saurav Pathania) Digitally signed by KARAN SINGH GULERIA DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH KARAN SINGH COURT OF HIMACHAL PRADESH SHIMLA, Phone= e5d61f6599be410af7c5f0b57379e225878f23c9ea27b281046985b3b1f e0b75, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER= f72cf9165791d55ec939375291962d0d90d094876bd59591426c0b1ce6 51f01f, CN=KARAN SINGH GULERIA GULERIA Reason: I am the author of this document Location:
Date: 2023.12.29 15:53:55+05'30' Foxit PDF Reader Version: 2023.3.0