Case Law Details
Torrent Pharmaceuticals Limited Vs State of Rajasthan & Vinay Mangal (Rajasthan High Court)
The Court below was swayed by the fact that the purchases were made by bills and the payment was made in the account of the seller. The Court below failed to consider the provisions of Section 19 of the Act of 1940 wherein it is provided that a person, who is dealing with the spurious drugs, is equally liable as a person who is the manufacturer thereof. The Court below clearly failed to take into account the fact that the entire purchase bills were not available with the accused-respondent and that he had not purchased the drugs from a licensed manufacturer, distributor or dealer thereof. The bail application was thus granted misreading Section 19 of the Act of 1940 and ignoring the relevant material.
The drug in question is Losar-H, which is a life saving drug, the entire sale and purchase documents were not available with the accused-respondent. The drugs were found to be spurious and the strips were having the same code whereas each strips have different code. Taking into account that the main accused, who is the manufacturer, is still at large and there is specific allegation in the charge-sheet against the accused-respondent of being part of the drugs racket, I deem it proper to allow the present bail cancellation application.
FULL TEXT OF THE JUDGMENT/ORDER OF RAJASTHAN HIGH COURT
1. Applicant-petitioner has filed this bail cancellation application under Section 439(2) of Cr.P.C.
2. F.I.R. No.328/2019 was registered at Police Station, Kotwali, Jaipur, for offence under Sections 420, 467, 468, 471, 476, 120-B of I.P.C. read with Section 17B(e), 18(a)(i), 18(a)(vi), 18(c), 18A, 18(b), 27A, 27(b)(ii), 27(c), 27(d), 28, 28A of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as the “Act of 1940”).
3. It is contended by counsel for the applicant that the Court below has erred in granting bail to the accused-respondent. It has based its order on wrong interpretation of the provisions of the Act of 1940. It is contended that under Section 19(3) of the Act of 1940, a person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall not be liable for a contravention of Section 18 if he proves – (a) that he acquired the drug or cosmetic from a duly licensed manufacturer, distributor or dealer thereof; (b) that he did not know and could not, with reasonable diligence, have ascertained that the drug or cosmetic in any way contravened the provisions of that section; and (c) that the drug or cosmetic, while in his possession was properly stored and remained in the same state as when he acquired it.
4. It is also contended that M/s. Darsh Pharma purchased the drugs from M/s. Ganpati Enterprises, which was not a duly licensed manufacturer, distributor or dealer dealing with Losar-H, a product of M/s. Torrent Pharmaceuticals Limited. It is argued that the Court below while allowing the bail application has considered the factum of drugs being purchased by E-way bills and payment of GST etc. It is contended that if important material has been ignored by the trial Court, the same can be set aside by the High Court. Reliance in this regard is placed on Puran Versus Rambilas & Anr. reported in (2001) 6 SCC 338. Reliance has also been placed on Gurcharan Singh & Ors. Versus State (Delhi Administration) reported in AIR 1978 SC 179 wherein it was held that under Section 439(2) Cr.P.C., the approach should be whether the order granting bail was vitiated by any serious infirmity for which it was right and proper for the High Court, in the interest of justice, to interfere. It is also contended that in this particular case, thousands of strips of Losar-H were sold to the accused-respondent. Every purchase bill was not supplied to the Investigating Officer. It is also contended that for the sake of showing their genuineness, few bills and payment records were kept by the accused-respondent. It is also contended that strips that were seized were having the same code, the distributor ought to know that each strips have different code. It is revealed from the record that thousand of strips were sold without there being any purchase documents and the details of such sale and purchase were not available in the ledger of the accused-respondent, which points out to the accused having knowledge that the drugs were spurious.
5. It is further contended that the charges have been framed against the accused-respondent and one of the co-accused Shubham Gupta is still at large and the accused-respondent is an integral part of spurious and counterfeit drugs racket. It is also contended that from the charge-sheet, it is established that the accused-respondent was engaged in the drug peddling racket of the sales and distribution of spurious drug in question. It is argued that since the accused-respondent has failed to produce legitimate bills and records for the entire quantity of spurious drugs seized from his premises, his involvement in the spurious and counterfeit drugs racket is writ large. It is also contended that the minimum sentence provided under the Act of 1940 is ten years
6. Counsel appearing for the accused-respondent has opposed the bail cancellation application. It is contended that the applicant has no right to file the present bail cancellation application as he is not the complainant and even FIR has not been lodged by him. Counsel has placed reliance on Bhagirathsinh Judeja Versus State of Gujarat reported in AIR 1984 SC 372 wherein it was held that the trend today is towards granting bail because it is now well-settled by a catena of decisions that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. Reliance has also been placed on Prabhakar Tewari Versus State of U.P. & Anr. reported in JT 2020(2) 1 SC 72 wherein it was held that even if the offence is grave and serious and there are several criminal cases pending against the accused, these factors by themselves cannot be the basis for refusal of prayer for bail.
7. In rebuttal to the arguments advanced by counsel appearing for the accused-respondent, it is contended that it is not necessary that only the complainant can file a bail cancellation application. Counsel for the applicant has placed reliance on Gurcharan Singh & Ors. (supra). Counsel has also placed reliance on The State of Andhra Pradesh Versus Veterinary Division & Ors. reported in JT 2002 (8) SC 534 wherein it was held that there is no prohibition in the Act on prosecution of dealer. Reliance has also been placed on Dinesh M.N. Versus State of Gujarat reported in AIR 2008 SC 2318 wherein the Apex Court has held that the Court while dealing with an application for cancellation of bail under Section 439(2) Cr.P.C. can consider whether irrelevant materials were taken into consideration, as in that case, the Court does not know as to what extent the irrelevant materials were taken into consideration by the Court for accepting prayer for bail.
8. I have considered the contentions.
9. The Court below was swayed by the fact that the purchases were made by bills and the payment was made in the account of the seller. The Court below failed to consider the provisions of Section 19 of the Act of 1940 wherein it is provided that a person, who is dealing with the spurious drugs, is equally liable as a person who is the manufacturer thereof. The Court below clearly failed to take into account the fact that the entire purchase bills were not available with the accused-respondent and that he had not purchased the drugs from a licensed manufacturer, distributor or dealer thereof. The bail application was thus granted misreading Section 19 of the Act of 1940 and ignoring the relevant material.
10. The drug in question is Losar-H, which is a life saving drug, the entire sale and purchase documents were not available with the accused-respondent. The drugs were found to be spurious and the strips were having the same code whereas each strips have different code. Taking into account that the main accused, who is the manufacturer, is still at large and there is specific allegation in the charge-sheet against the accused-respondent of being part of the drugs racket, I deem it proper to allow the present bail cancellation application.
11. The bail cancellation application is accordingly allowed. The bail granted to the accused-respondent – Vinay Mangal is cancelled. The trial Court is directed to take the accused-respondent in custody forthwith.
