Right of police to file charge sheet under Drugs and Cosmetics Act,

 The

offence under Section 17B of the Act is punishable under

Section 27 of the Drugs and Cosmetics Act and is punishable

with a minimum punishment of 5 years and may extend to life

term also as per the amendment brought about in the year

2009. Obviously, the offence is a cognizable offence,

therefore, there is no force in the argument advanced by the

learned counsel for the petitioner that for the said offence the 10

filing of the complaint is mandatory. Sub-section (3) of

Section 32 also provides that nothing contained in this chapter

shall be deemed to prevent any person from being prosecuted

under any other law for any act or omission which constitutes

any offence under this chapter. Since, the act of the accused

constituted offence under Chapter-4 of the Drugs and

Cosmetics Act as well as under the Indian Penal Code,

therefore, a charge-sheet can very well be laid for both these

offences and the accused can be tried jointly for these

offences at one trial.

That apart even a report under Section 173 of the

Cr.P.C. disclosing a non cognizable offences is deemed to be a

complaint within the meaning of Sub-Section 2(d). In the case

in hand, the police officers acting upon the source information

sent the decoys got purchased the injections from the

concerned dealers. The injections were found spurious on

analysis. Therefore, the investigation officer or the seizure

officer can very well be said to be aggrieved person referred

to in Section 32 of the Drugs and Cosmetics Act, and thus, the

proceedings of the charge-sheet cannot be held to be vitiated.

Learned counsel for the petitioner has further

contended that no sanction as required under Section 33M of

the Drugs and Cosmetics Act had been procured before

launching the prosecution, and therefore, the prosecution of 11

the petitioner is illegal. Suffice it to say that the sanction which

is warranted under Section 33M of the Act is for the

prosecution under Chapter IVA of the Drugs and Cosmetics

Act. The petitioner is being prosecuted for the offence under

Section 17B of the Act which falls in the Chapter IV and thus

no sanction is required for initiating the prosecution.

Rajasthan High Court - Jodhpur

Rajesh Purohit @ Bholiya vs State on 15 December, 2012

REPORTABLE
Heard learned counsel for the petitioner and
learned Public Prosecutor. Perused the case diary.
The instant bail application has been filed under
Section 439 Cr.P.C. by the petitioner Rajesh Purohit @ Bholiya
s/o Late Rameshchandra Goriya who has been arrested in C.R.
No. 59/2012 registered at Police Station Khanda Falsa,
Jodhpur for the offences under Sections 274, 275, 276, 420,
120-B I.P.C. and 103, 104 Trade Mark Act and Section 17-B &
27 Drugs & Cosmetics Act.
Succinctly stated the facts of the case are that the
S.H.O. P.S. Khanda Falsa, Jodhpur as well as the Drug Control
Officer, Jodhpur received a source information regarding the 2
transaction of spurious Mero-CD, Merosul(Meropenam)
injections. The search of a drug store named Nakoda Medicos
was undertaken on 26.5.2012 and certain injections were
seized under the suspicion that they were spurios. The
proprietor of the Medical Store Tansukh Vadera was arrested.
Thereafter certain other medical stores viz. Mehta Medical,
Varsha Medicos, Amar Shanti Medicos, Kakkad Medicos were
also raided on the basis of sale of the spurious injections
made to decoys and recoveries of the spurious injections were
also made from these medical stores. An F.I.R. No. 59/2012
under Sections 274, 275, 276, 120-B, 420 I.P.C. and 103, 104
Trade Mark Act and 17-B and 27 of the Drugs and Cosmetics
Act was registered at the P.S. Khanda Falsa and investigation
commenced. The proprietors of the said stores viz. Kapil
Kakkar, Manish Mehta, Sumer Singh, Arun Chug, Ajay
Choudhary etc. were arrested. A report was taken from the
original manufacturer of the injections i.e. M/s. Arion
Healthcare and it was revealed that the injections seized were
fake and spurious. Investigation and analysis of the seized
injections revealed that the injections which had been seized
by the officers of the Drugs Department and the police officers
and also the ones sold to the decoys being Mero CD and
Merosul injections were fake and spurious. The drug is said to
be a life saving drug. The analysis report dated 6.7.2012 was 3
received and it was found that the presence of the life saving
salt was not found at all in the injections. The arrested
accused who were the owners of the medical stores produced
the bills of purchase to the I.O. showing that the injections in
question had been supplied by the petitioner Rajesh Purohit @
Bholiya. On this the petitioner Rajesh Purohit and Kalyan Joshi
were apprehended. The statements of two witnesses Suresh
Acharya and Shyamlal Vaishnav were recorded and they
deposed that it was the petitioner who got the labels and the
boxes of the spurious injections printed through them. The
investigation further revealed that Rajesh Purohit was a
medical representative but his authority to deal in medicines
came to an end about 10 years ago but despite that he
continued to deal in the medicines. The evidence collected
also revealed that the spurious injections in question were got
manufactured by him. Evidence was also collected to the effect
that he got printed the counterfeit and forged labels and
boxes of the spurious injections from Rama Printers, Jaipur.
Evidence was also collected to the effect that the petitioner
used the services of co-accused Ajay Chaudhary for the
purpose of downloading the label designs from the official
website of the Company and thereafter placed the order for
printing of the boxes to Rama Printers and packed the
spurious injections after appending counterfeit slips in the 4
boxes bearing counterfeit labels. During the course of
investigation 1016 counterfeit labels of injections and 30
boxes bearing fraudulent markings were also recovered from
the possession of the petitioner from his own residential
house. Evidence about E-mail sent by the petitioner for the
purpose of procuring counterfeit labels and boxes was also
collected. After the collection of the said evidence the
petitioner has now been charge-sheeted in the matter.
The petitioner who is in judicial custody has now
approached this Court for being released on bail.
Shri N.K.Bohra, learned counsel for the petitioner
vehemently contended that the petitioner has been falsely
implicated in this case. He submits that merely by the recovery
of counterfeit labels and the boxes, it cannot be concluded
that the petitioner was dealing in the spurious medicines. He
further contended that similar allegation regarding
procurement of fraudulent counterfeit label has been made
against the co-accused Ajay Chaudhary who stands released
on bail by this Court vide order dated 6.10.2012 passed in Bail
Application No. 7320/2012. He also submitted that all the
dealers from whose shops recoveries of spurious injections
were made have been granted bail by this Court viz. Manish,
Arun Chug, Suresh, Banshi @ Tanshukh Vadera, Kapil Kakkad
and Sumer Singh. He submitted that by virtue of Section 32 of 5
the Drugs and Cosmetics Act and the Rajasthan Drug Rules,
the cognizance of an offence under Section 17(B) of the Drugs
and Cosmetics Act cannot be taken except upon a complaint
filed by the authorised officer in this regard and as no
complaint has been filed, the whole of the proceedings going
on against the petitioner are vitiated. He further submitted
that as there is no direct evidence on the record to show that
the petitioner supplied the spurious injections to anybody by
projecting them to be genuine, prima facie the offence under
Section 420 I.P.C. cannot be made out against him. He
submitted that the charge-sheet has already been filed in the
matter and as such, the petitioner is entitled to be released on
bail. He has relied upon the following decisions in support of
his arguments:-
1. Sharad Kumar Vs. C.B.I. reported in 2012(1)RCR
(Cr.)-56;
2. Siddharam Satlingappa Mhetre Vs. State of
Maharashtra reported in 2011(1) RCR(Cr.)-126;
3. Moti Ram Vs. State of M.P. reported in AIR 1978
SC-1594;
4. Satish Chand Vs. State of Haryana reported in
2004(1) Cr.Court Cases-443(P&H);
5. Rekha Vs. State of Tamil Nadu reported in 2011
(4) RCR(Cr.)-21;
6
6. Gurbaksh Singh Vs. State of Punjab reported in
AIR 1980 SC-1632.
Relying upon the aforesaid decisions, he
vehemently urges that as there is no complaint of the Drug
Inspector and as no sanction to file the complaint has been
procured, the proceedings against the accused for the offence
under Section 17 of the Drugs and Cosmetics Act are
absolutely illegal and an abuse of the process of the Court. He
further submitted that as the similarly situated accused have
been granted bail by this Court, the petitioner is also entitled
to be released on bail.
Learned Public Prosecutor has vehemently opposed
the submissions. He submitted that the case of the other
accused persons who have been granted bail by this Court
stands on a different footing from the petitioner. He submitted
that the petitioner is the master mind behind the whole racket
involving manufacture and supply of spurious life saving
injections and due to the act of the petitioner number of
unsuspecting victims who were administered the spurious
injections have lost their lives. He further contended that the
petitioner is the person who is responsible for manufacturing
the spurious injections and supplying the same to dealers and
as a result thereof the unsuspecting innocent victims have
purchased the injections and have suffered, and therefore, 7
the petitioner does not deserve to be granted bail. He,
therefore, prays that the application for bail deserves to be
rejected.
Heard and considered the arguments advanced,
perused the record carefully and gave a thoughtful
consideration to the judgments cited by the counsel for the
petitioner. The first contention of the learned counsel for the
petitioner in this case is that the proceedings for the offence
under Section 17B of the Act cannot be continued against the
petitioner because no complaint has been filed by the
authorised person in this case. The said contention need not
hold this Court for a moment. In this case the F.I.R. which was
registered was in relation to the various offences involving the
cognizable offences under the I.P.C. and the Trade Marks Act
and the Drugs and Cosmetics Act. After the seizures were
made and the drugs were sent for analysis, it was confirmed
that the seized drugs/injections are spurious and thereafter
commission of the offence under Section 17B of the Drugs &
Cosmetics Act was firmly established. Law in this regard is
well settled that in the case arising out of a single transaction
wherein some of the offences are cognizable and others are
non-cognizable and the trial is to be conducted together then
the Court can try cognizable as well as non-cognizable
offences despite no complaint having been filed as regards the 8
non-cognizable offences. Section 155(4) of the Cr.P.C. leaves
no room for doubt for this proposition. Initially when the F.I.R.
was registered, at that stage there was a specific allegation
and evidence on record disclosing the commission of different
offences including various cognizable offences under the
different sections of Indian Penal Code. The police, therefore,
definitely had the power to investigate the matter.
Subsequently, the commission of the offence under Section
17B of the Drugs and Cosmetics Act was also confirmed as the
analysis report of the seized injections was received disclosing
that the life saving salt was totally missing from the injections.
The injections were thus found to be spurious. In this view of
the matter, this Court is of the opinion that the police was very
much entitled to file a charge-sheet against the accused and
there was no impediment on the Investigating Agency in filing
a charge-sheet for the offences under Sections 274, 275,
276, 420, 120-B I.P.C. and 103, 104 Trade Mark Act and
Section 17-B & 27 Drugs & Cosmetics Act.
The contention of the learned counsel for the
petitioner that as per Rule 51 sub-clause 5 of the Rajsthan
Drugs Rules only the Drug Inspector was authorised to file the
complaint is concerned, again this argument is also of no avail
to the petitioner. Section 32 of the Drugs and Cosmetics Act 9
reads as below:-
"32. Cognizance of offences.-(1) No
prosecution under this Chapter shall be instituted except by-
(a) an Inspector; or
(b) any gazetted officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government or a State Government by a general or special order made in this behalf by that Government; or
© the person aggrieved; or
(d) a recognised consumer association
whether such person is a member of that association or not.
(2) Save as otherwise provided in this Act, no court inferior to that of a Court of Session shal try an offence punishable under this Chapter.
(3) Nothing contained in this Chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence against this Chapter..."
Thus, from the amendment which has been
brought into the provision from 1987, it becomes apparent
that the prosecution under this chapter can be instituted by
the person aggrieved or by a recognised association. The
offence under Section 17B of the Act is punishable under
Section 27 of the Drugs and Cosmetics Act and is punishable
with a minimum punishment of 5 years and may extend to life
term also as per the amendment brought about in the year
2009. Obviously, the offence is a cognizable offence,
therefore, there is no force in the argument advanced by the
learned counsel for the petitioner that for the said offence the 10
filing of the complaint is mandatory. Sub-section (3) of
Section 32 also provides that nothing contained in this chapter
shall be deemed to prevent any person from being prosecuted
under any other law for any act or omission which constitutes
any offence under this chapter. Since, the act of the accused
constituted offence under Chapter-4 of the Drugs and
Cosmetics Act as well as under the Indian Penal Code,
therefore, a charge-sheet can very well be laid for both these
offences and the accused can be tried jointly for these
offences at one trial.
That apart even a report under Section 173 of the
Cr.P.C. disclosing a non cognizable offences is deemed to be a
complaint within the meaning of Sub-Section 2(d). In the case
in hand, the police officers acting upon the source information
sent the decoys got purchased the injections from the
concerned dealers. The injections were found spurious on
analysis. Therefore, the investigation officer or the seizure
officer can very well be said to be aggrieved person referred
to in Section 32 of the Drugs and Cosmetics Act, and thus, the
proceedings of the charge-sheet cannot be held to be vitiated.
Learned counsel for the petitioner has further
contended that no sanction as required under Section 33M of
the Drugs and Cosmetics Act had been procured before
launching the prosecution, and therefore, the prosecution of 11
the petitioner is illegal. Suffice it to say that the sanction which
is warranted under Section 33M of the Act is for the
prosecution under Chapter IVA of the Drugs and Cosmetics
Act. The petitioner is being prosecuted for the offence under
Section 17B of the Act which falls in the Chapter IV and thus
no sanction is required for initiating the prosecution.
Now, coming to the judgments which have been
relied upon by the learned counsel for the petitioner in
support of his contention that the petitioner is entitled to be
released on bail in this case. The argument advanced by the
learned counsel for the petitioner that the petitioner's case is
similar to that of the other accused persons who have been
granted bail by this Court, and therefore, the petitioner is
entitled to be released on bail is unacceptable. From the
material available on record, there is ample evidence to the
effect that the petitioner is manufacturer and the distributor of
the spurious drugs. The other accused persons who have been
granted bail by this Court are not alleged to be the
manufacturers or distributors of the drug in question. Even the
accused Ajay Chaudhary in relation to whose case much stress
has been laid by the petitioner was simply a tool used by the
petitioner for downloading the packaging design of the drug
in question. There is a clinching evidence on record which
shows that it is the petitioner who not only got printed the 12
spurious boxes and labels but also packed the same with the
spurious drugs and then distributed the same to various
dealers. Therefore, the petitioner's case cannot be said to be
at par with that of the other accused persons. It is not out of
place to state here that in the judgments which have been
cited by the learned counsel for the petitioner, the Apex Court
has time and again held that normally the accused should not
be kept incarcerated in prison until held guilty by the court
concerned. But the Court has also cautioned that before
granting bail the gravity and nature of allegations have to be
considered. In various decisions the Apex Court has added the
note of caution that the bail cannot be granted as a matter of
rule or course without considering the nature of offence and
gravity of allegations levelled against the accused.
Recently the Hon'ble Apex Court considering the
concept of bail in the case of Prashanta Kumar Sarkar Vs.
Ashis Chatterjee & Anr. reported in AIR 2011 (SC)-274 after
considering the the earlier decisions of the Apex Court has
held as below :-
"We are of the opinion that the impugned order is clearly unsustainable. 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 13
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. (See: State of U.P. through CBI v. Amarmani
Tripathi (2005) 8 SCC 21: (AIR 2005 SC 3490); Prahlad Singh Bhati v. NCT, Delhi and Anr.(2001) 4 SCC 280 : (AIR 2001 SC 1444); Ram Govind Upadhyay v. Sudarshan Singh and Ors.(2002) 3 SCC 598 : (AIR 2002 SC 1475)).
12. It is manifest that if the High Court does not advert to these relevant considerations and mechanically grants bail, the said order would suffer from the vice of non-application of mind, rendering it to be illegal. In Masroor (supra), a Division Bench of this Court, of which one of us (D.K. Jain, J.) was a member, observed as follows:
"Though at the stage of granting bail an elaborate examination of evidence and
detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided, but there is a need to indicate in such order reasons for prima facie concluding why bail was being granted
particularly where the accused is charged of having committed a serious offence."
(See also: State of Maharashtra v. Ritesh (2001) 4 SCC 224 : (AIR 2001 SC 1310); Panchanan Mishra v. Digambar Mishra and Ors. (2005) 3 SCC 143 : (AIR 2005 SC 1299); Vijay Kumar v. Narendra and Ors. (2002) 9 SCC 364; Anwari Begum v. Sher Mohammad and Anr. (2005) 7 SCC 326 : (AIR 2005 SC 3530)
13. We are constrained to observe that in the 14
instant case, while dealing with the
application of the accused for grant of bail, the High Court completely lost sight of the basic principles enumerated above. The accused, in the present case, is alleged to have committed a heinous crime of killing an old helpless lady by strangulation. He was seen coming out of the victim's house by a neighbour around the time of the alleged occurrence, giving rise to a reasonable belief that he had committed the murder. We feel that under the given circumstances, it was not the stage at which bail under Section 439 of the Code should have been granted to the accused, more so, when even charges have not yet been framed. It is also pertinent to note that, as stated above, the Additional Chief Judicial Magistrate had rejected three bail applications of the accused but the High Court did not find it worthwhile to even make a reference to these orders. In this regard, it would be useful to refer to the following observations echoed in Kalyan Chandra
Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr. (2004) 7 SCC 528 : (AIR 2004 SC
1866):-
"In regard to cases where earlier bail applications have been rejected there is a further onus on the court to consider the subsequent application for grant of bail by noticing the grounds on which earlier bail applications have been rejected and after such consideration if the court is of the opinion that bail has to be granted then the said court will have to give specific reasons why in spite of such earlier rejection the subsequent application for bail should be granted." (See also:Ram Pratap Yadav v. Mitra Sen Yadav and Anr. (2003) 1 SCC 15 : (2002 AIR SCW 4851)."
In the aforesaid case the Apex Court has held that
the nature and gravity of the accusation and severity of the
punishment in the event of conviction are the guidelines which 15
have to be kept in mind while granting bail.
In the case of Prakash Kadam Vs. Ramprasad
Vishwanath Gupta reported in AIR 2011 SC-1945 the Hon'ble
Apex Court considering the concept of bail vis-a-vis the
cancellation of bail has held as below:-
"It was contended by learned counsel for the appellants before us, and it was also
contended before the High Court, that the considerations for cancellation of bail is different from the consideration of grant of bail vide Bhagirathsinh s/o Mahipat Singh Judeja v. State of Gujarat(1984) 1 SCC 284 : (AIR 1984 SC 372) Dolat Ram and others v. State of Haryana (1995) 1 SCC 349 and
Ramcharan v. State of M.P. (2004) 13 SCC
617.
17. However, we are of the opinion that that is not an absolute rule, and it will depend on the facts and circumstances of the case. In considering whether to cancel the bail the Court has also to consider the gravity and nature of the offence, prima facie case against the accused, the position and
standing of the accused, etc. If there are very serious allegations against the accused his bail may be cancelled even if he has not misused the bail granted to him. Moreover, the above principle applies when the same Court which granted bail is approached for cancelling the bail. It will not apply when the order granting bail is appealed against before an appellate/revisional Court.
18. In our opinion, there is no absolute rule that once bail is granted to the accused then it can only be cancelled if there is likelihood of misuse of the bail. That factor, though no doubt important, is not the only factor. There are several other factors also which may be seen while deciding to cancel the bail.
19. This is a very serious case and cannot be treated like an ordinary case. The accused 16
who are policemen are supposed to uphold the law, but the allegation against them is that they functioned as contract killers. Their version that Ramnarayan Gupta was shot in a police encounter has been found to be false during the investigation. It is true that we are not deciding the case finally as that will be done by the trial court where the case is pending, but we can certainly examine the material on record in deciding whether there is a prima facie case against the accused which disentitles them to bail.
Since in this case, the petitioner is a principal
accused who manufactured/procured and then distributed
the spurious life saving drug thereby putting to jeopardy the
lives of unsuspecting innocent ailing people, this Court is of
the opinion that there cannot be any justification for accepting
the instant application for bail. The act of the accused falls in
the category of a heinous crime affecting the lives of the
innocent citizens and strikes at the very core of the society
and therefore he is not entitled to be released on bail. There is
every possibility that the accused if released on bail would
again indulge in his nefarious activities.
Accordingly, the application for bail is rejected.
(SANDEEP MEHTA), J.
/Sushil/

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