Himachal Pradesh High Court
Reserved On : 10.12.2024 vs State Of Himachal Pradesh on 23 December, 2024
Author: Virender Singh
Bench: Virender Singh
2024:HHC:15546
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. :1269 of 2024
Reserved on : 10.12.2024
Decided on : 23.12.2024
Avaindra Shukla …Applicant
Versus
State of Himachal Pradesh …Respondent
Coram
The Hon’ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1
For the applicant : Mr. Narender Guleria and Mr.
Adhiraj Thakur, Advocates.
For the respondent : Mr. H.S. Rawat and Mr. Mohinder
Zharaick, Tejasvi Sharma,
Additional Advocates General, with
Ms. Ranjana Patial, Deputy
Advocate General.
Virender Singh, Judge
Applicant-Avaindra Shukla has filed the present
application, under Section 439 of the Code of Criminal
Procedure (hereinafter referred to as the ‘CrPC‘), for
releasing him, on bail, in a case, registered under Section
18(a)(i), read with Sections 17(B) and 36(AC), punishable
under Section 27 of the Drugs and Cosmetics Act, 1940
1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
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(hereinafter referred to as ‘the Act’), by the Drugs
Inspector, Headquarter Baddi, District Solan, H.P.
2. According to the applicant, he was arrested on
06.10.2023 and thereafter, is lodged in Sub-Jail, Nalagarh,
District Solan, H.P. The complainant (Drugs Inspector,
Headquarter Baddi, District Solan, H.P.) has filed a
complaint, against him, which is pending adjudication,
before the Court of learned Special Judge, Nalagarh.
3. According to the applicant, the said case was
instituted, against him, on the ground that Regional
Director, North Zone, FSSAI, through e-mail, has informed
the Drugs Inspector that the officials of FSSAI, consisting
of Mr. Vaibhav Vyas (Central Food Safety Officer), Mr.
Sameer Bhagwat (Central Food Safety Officer) and Ms.
Manisha Buriuli (Central Food Safety Officer), had visited
the premises of the firm, namely M/s Glenmars
Healthcare, 98, Modern Complex, Baddi, Solan, H.P., on
29.06.2023.
4. It is the further case of the applicant that
during the visit, FSSAI team found that license of the said
firm had already expired on 27.01.2023 and the said firm
was not involved in the manufacturing of food items. Their
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entry was resisted by the applicant for about 15 minutes.
Thereafter, search was conducted and during search, huge
quantity of allopathic drugs was found in the premises. At
the time of search, the search team had taken into
possession the following samples of the drugs, which were
found in the said premises:-
A. Amoxus-500 Capsules (Amoxycillin Trihydrate
Capsules IP), B. No. CP04854, 06/23, Expiry
05/25, Manufactured by Morisus Healthcare,
Industrial Bhagwanpur, Rorkee-247661, pack
sized 20-10 Capsules total 69 boxes.
B. Doxtil-200 tablets (Cefodoxime Proxetil), B.No.
MHBT/23/038, Mfg date 04 Expiry date 03/25,
Manufactured by: Morisus Healthcare, Industrial
Bhagwanpur, Rorkee-247661, pack sized 10-10
Tab. total 79 boxes.
C. MEF-200 Tablets (Cefixime Trihydrate and Lactic
Acid bacillus Tablets), E MHBT/23/025, Mfg date
04/23, Expiry date 03.25, Manufactured by: Mon
Healthcare, Industrial area, Bhagwanpur, Rorkee-
247661, pack sized 10-10 total 100 boxes.
D. Zathron-500 tablets (Amoxycillin tablets IP). B.
No. 45865, Mfg 03.23, Ex 02/25, Manufactured by
Reon Pharma, plot no. F-310, road no.3, Phase
Kathwad, GIDC, Bhind Odhav Vepam, Ahemdabad
(Gujrat), pack sized 10 Tablets total 26 boxes.
E. Roxim-500 (Cefuroxime Axetil tables), B. No.
457783, Mfg date 03/23, Exp 02.26, Manufactured
by Reon Pharma, plot no. F-310, road no.3, Phase
Kathwad, GIDC, Bhind Odhav Vepam, Ahemdabad
(Gujrat), pack sized 10 Tablets total 66 boxes.
F. Ampicillin -500 Capsules (Ampicillin Capsules
IP), B. No. RRCF002, Mfg 0 Expiry 04/25,
Manufactured by Ross Robinz
Biotech(Manufactured under guidance of Ashicon
remedies, V.P.O Barog, Solan H.P)., pack sized 20
Capsules total 19 boxes.”
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5. It is the case of the applicant that thereafter, on
30.06.2023, Drugs Inspector, police officials and Executive
Magistrate-cum-Naib Tehsildar had also visited the said
premises and the same was found locked on that day, as,
the same was sealed by the Drugs Inspector, which was
de-sealed, as per the directions of the learned Judicial
Magistrate First Class, Nalagarh.
6. According to the applicant, the drug samples,
seized by FSSAI team, were also taken into possession by
the Drugs Inspector and were sent to Regional Drugs
Testing Laboratory, Chandigarh. The samples were not
found to be having the medicines, which were being
purported to be sold in them and other samples.
7. It is the further case of the applicant that on
06.10.2023, the applicant was directed to join the
investigation at the Office of SDC Baddi and subsequently,
he was arrested on that day.
8. The applicant is stated to have moved the bail
application, before the Court of learned Special Judge,
Nalagarh District Solan, H.P., however, the same was
dismissed, vide order dated 19.12.2023. Thereafter, he had
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moved another bail application, which was also dismissed,
vide order dated 13.03.2024.
9. On the basis of above facts, the applicant has
sought the relief of bail, on the following grounds:-
i. That he has not committed the offence, as
alleged, in the complaint.
ii. That he is innocent person and investigation, in
the present case, is complete and nothing has been
recovered from him or at his instance. This fact has been
highlighted to show that his custodial interrogation is no
longer required by the police.
iii. That the search and seizure proceedings,
allegedly conducted by the Department, are not in
accordance with law.
iv. That he is a sick man and is a chronic diabetic
patient. He is also infirm and disabled person, as, prior to
his arrest, in the year 2022, he met with an accident and
his left leg was got fractured. Thereafter, he was operated
and bolts were inserted on 22.09.2022.
v. That his health condition is deteriorating, in the
jail premises, day-by-day.
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vi. That on his request, he was medically examined
by the doctors at Regional Hospital, Solan, on 04.12.2023
and 13.02.2024. In the medical examination, he was found
to be suffering from high sugar level. All these facts have
been highlighted to show that despite allegations, levelled
against the applicant, he is entitled for bail, as per
provisions of Section 36AC of the Act.
10. Apart from this, the applicant has given certain
undertakings, for which, he is ready to abide by, in case,
ordered to be released on bail.
11. During the pendency of the bail application,
before this Court, in view of the request, the applicant was
produced, before the Medical Board, which has assessed
his disability as 15%, which is stated to be permanent
disability, in relation to his left lower limb. The disability
certificate was issued on 25.11.2024.
12. On the basis of above facts, Mr. Narender
Guleria and Mr. Adhiraj Thakur, Advocates, appearing for
the applicant, has prayed that the present application may
be allowed, by releasing the applicant, on bail.
13. When put to notice, Drugs Inspector has filed
the status report, reiterating the factual position, as
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asserted, by the applicant, qua the search and seizure of
spurious drugs and the samples of the drugs, details of
which have already been reproduced above.
14. It is the further case of the respondent that on
30.06.2024, after receiving the information from Regional
Director, FSSAI, a team of Drugs Inspectors from SDC
Office, Baddi, District Solan, had visited the premises of
M/s Glenmars Healthcare, 98, Modern Complex, 1st Floor,
Sai Road, Baddi, District Solan, H.P., but, the same was
found to be locked. In this regard, the spot report was
prepared. On the same day, they tried to contact applicant-
Avaindra Shukla on his mobile No.92185-12771, but, the
same was found to be switched-off. Thereafter, the landlord
of the premises, Mr. Ajay Kumar, was called and
subsequently, the lock of the premises was broken and
opened. When, no stock of the drugs was found in the
premises, then, the same was again locked and keys were
handed over to the landlord.
15. It is the further case of the respondent that
thereafter, a notice, under Section 22(1)(d) of the Act and
the Rules, made thereunder, was pasted on the entrance of
the premises, with a direction to the accused person
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(applicant) to join the investigation, in the present case,
within three days, in the Office of State Drugs Controller,
Baddi, District Solan, H.P., but, no reply was received.
16. Subsequently, on 03.07.2023, a team of Drugs
Inspectors from SDC Office, Baddi, had again visited the
premises, but, no person was found present there, despite
issuance of notice. Thereafter, the said premises was
sealed.
17. As per the case of the respondent, on
17.07.2023, a letter was written to Regional Director,
FSSAI, Gaziabad, to provide the relevant records of the firm
M/s Glenmars Healthcare, 98, Modern Complex, 1st Floor,
Sai Road Baddi, Solan, H.P. On 21.08.2023, a request had
been made to depute the official of FSSAI to join the
investigation, who had conducted the inspection of the firm
M/s Glenmars Healthcare, on 29.06.2023.
18. It is the further case of the respondent that on
21.07.2023, the proprietor of M/s Glenmars Healthcare
had moved the application, before the JMFC, Nalagarh, to
de-seal the aforesaid premises. Consequently, orders were
passed to de-seal the said premises. However, on the same
day, notice was served upon Ms. Anupama and Mr.
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Avaindra Shukla (applicant), having Power of Attorney, to
provide the requisite records.
19. It is the further case of the respondent that on
11.09.2023, Mr. Vaibhav Vyas, Food Safety Officer from
FSSAI, Gaziabad, has joined the investigation and on that
day, he has handed over the case property i.e. drugs,
recovered by them on 29.06.2023, to Drugs Inspector Rajat
Kumar. Thereafter, Drugs Inspector Rajat Kumar has
seized all the drugs, produced by Central Food Safety
Officer Mr. Vaibhav Vyas on Form-16, after drawing six
legal samples of drugs on Form-17 & 17A, in the presence
of Avaindra Shukla (applicant). The same were duly sealed
with the seal impression ‘RJT DI HP’. Thereafter, a notice,
under Section 22(i)(cca) & 22(d) of the Act, was sent to the
applicant, with a direction to join the investigation, but, he
did not join and has been absconding till date.
20. According to the respondent, the samples of
drugs, which were taken on 11.09.2023, were sent to the
Government Analyst, Regional Drugs Testing Laboratory,
Chandigarh, for testing and analysis. Thereafter, a notice
was served upon firm M/s Morisus Healthcare Industrial
Area, Bhagwanpur, Roorkee, for verification of the seized
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drugs. Similarly, notice dated 13.09.2023 was also served
upon firm M/s Reon Pharma, Plot No.F-310, Road no.3,
Phase-I, Kathwad, GIDC, Bhind Odhav Vepam,
Ahmadabad, Gujarat, and notice dated 13.09.2023 was
also issued to M/s Ross Robinz Biotech (manufactured
under the guidance of Ashicon Remedies, VPO, Barog,
District Solan, H.P.) for verification of the seized drugs.
When, no response was received from M/s Morisus
Healthcare Industrial Area and M/s Reon Pharma, then,
vide letter dated 03.10.2023, Commissioner, Food & Drugs
Control Administration, Gujarat and vide letter of the even
date, Drugs Controller, Food and Safety, Drugs
Administration, Uttarakhand, were requested to verify the
credentials of the said firms.
21. It is the further case of the respondent that on
05.10.2023, firm M/s Ross Robinz Biotech has submitted
a letter, in which, the firm disclosed that they do not have
capsule section in beta-lactam category of drugs and they
did not manufacture the said drugs. In view of the reply,
submitted by the firm, according to the stand, taken by the
Drugs Inspector, it is proved that the drugs, recovered from
the premises of M/s Glenmars Healthcare, were not
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manufactured by M/s Ross Robinz Biotech and the same
are spurious in nature.
22. It has been mentioned in the reply that on
06.10.2023, applicant-Avaindra Shukla was called to join
the investigation in the Office of SDC, Baddi and further
during the course of investigation, the applicant has not
cooperated with the investigation and has not disclosed the
complete details of spurious drugs, which were
manufactured and sold by M/s Glenmars Healthcare. The
applicant was arrested, on that day, at about 04:45pm.
23. It is the further case of the respondent that on
07.10.2023, a letter was received from Assistant Drugs
Controller, Uttarakhand, disclosing therein, that no such
firm, under the name and style of M/s Morisus Healthcare
is operational. Hence, inference has been drawn that the
drugs, recovered from the premises of M/s Glenmars
Healthcare, are spurious and substandard drugs.
Similarly, on 23.11.2023, a communication was received
from Assistant Commissioner, Food and Drugs
Administration, Ahmadabad, Rural Circle, Gandhi Nagar,
Gujarat, disclosing therein, that no such firm, under the
name and style of M/s Reon Pharma is operational, at the
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said address. Hence, it has been observed that the drugs,
recovered from M/s Glenmars Healthcare, are spurious in
nature and applicant-Avaindra Shukla is indulged in
manufacturing of spurious and substandard drugs, under
the name of fictitious firm.
24. Thereafter, analysis reports of all six samples of
drugs, recovered from the premises of M/s Glenmars
Healthcare, were received on 01.12.2023, in which, all the
drugs had failed/declared ‘not of standard quality’, by the
Government Analyst. The details of the report, which have
also been mentioned, in the reply, are also reproduced
hereinbelow:-
Sr. Name of drug, Claim as Actual
No. recovered & seized per label of contents as
drug per analysis
report
1. Amoxycillin Trihydrate 500 mg 00.00%
Capsules IP
2. Cefodoxime Proxetil 200 mg 00.00%
Tablets
3. Cefixime Trihydrate 200 mg 00.00%
and Lactic Acid
Bacillus Tablets
4. Azithromycin Tablets 500 mg 00.00%
IP
5. Cefuroxime Axetil 500 mg 00.00%
Tablets
6. Ampicillin Capsules IP 500 mg 83.71%
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25. On the basis of above facts, a prayer has been
made to dismiss the application.
26. The applicant, in this case, is in judicial
custody, in connection with the offence punishable, under
Section 18(a)(i) read with Sections 17B, 36AC and 27. The
provisions of Sections 17B, 18(a)(i) and 27 are reproduced,
as under:-
“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.
18(a)(i). Prohibition of manufacture and sale of
certain drugs and cosmetics.–
(i) any drug which is not of a standard quality, or is
misbranded, adulterated or spurious;
27. Penalty for manufacture, sale, etc., of drugs
in contravention of this Chapter.–Whoever,
himself or by any other person on his behalf,
manufactures for sale or for distribution, or sells, or
stocks or exhibits or offers for sale or distributes,–
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(a) any drug deemed to be adulterated under
section 17A or spurious under section [17B 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]:
[Provided that the fine imposed on and released
from, the person convicted under this clause shall
be paid, by way of compensation, to the person
who had used the adulterated or spurious drugs
referred to in this clause:
Provided further that where the use of the
adulterated or, spurious drugs referred to in this
clause has caused the death of a person who used
such drugs, the fine imposed on and realised from,
the person convicted under this clause, shall be
paid to the relative of the person who had died due
to the use of the adulterated or spurious drugs
referred to in this clause.
Explanation.–For the purposes of the second
proviso, the expression “relative” means–
(i) spouse of the deceased person; or
(ii) a minor legitimate son, and unmarried
legitimate daughter and a widowed mother; or
(iii) parent of the minor victim; or
(iv) if wholly dependent on the earnings of the
deceased person at the time of his death, a son or
a daughter who has attained the age of eighteen
years; or
(v) any person, if wholly or in part, dependent on
the earnings of the deceased person at the time of
his death,–
(a) the parent; or
(b) a minor brother or an unmarried sister; or
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(c) a widowed daughter-in-law; or
(d) a widowed sister; or
(e) a minor child of a pre-deceased son; or
(f) a minor child of a pre-deceased daughter
where no parent of the child is alive; or
(g) the paternal grandparent if no parent of the
member is alive;]
(b) any drug–
(i) deemed to be adulterated under section 17A but
not being a drug referred to in clause (a), or
(ii) without a valid licence as required under clause
(c) of section 18, shall be punishable with
imprisonment for a term which shall [not be less
than three years but which may extend to five
years and with fine which shall not be less than
one lakh rupees or three times the value of the
drugs confiscated, whichever is more]:
Provided that the Court may, for any adequate
and special reasons to be recorded in the
judgment, impose a sentence of imprisonment for a
term of [less than three years and of fine of less
than one lakh rupees];
(c) any drug deemed to be spurious under section
17B, but not being a drug referred to in clause (a)
shall be punishable with imprisonment for a term
which shall [not less than seven years but which
may extend to imprisonment for life and with fine
which shall not be three lakh rupees or three times
the value of the drugs confiscated, whichever is
more]:
Provided that the Court may, for any adequate and
special reasons to be recorded in the judgment,
impose a sentence of imprisonment for a term of [less
than seven years but not less than three years and
of fine of less than one lakh rupees];
(d) any drug, other than a drug referred to in clause
(a) or clause (b) or clause (c), in contravention of any
other provision of this Chapter or any rule made
thereunder, shall be punishable with imprisonment
for a term which shall not be less than one year but
which may extend to two years [and with fine which
shall not be less than twenty thousand rupees]:
Provided that the Court may, for any adequate and
special reasons to be recorded in the judgment,
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2024:HHC:15546impose a sentence of imprisonment for a term of less
than one year.”
27. As per the stand, taken by the Drugs Inspector,
in this case, despite expiry of licence, on 27.01.2023, the
firm M/s Glenmars Healthcare was dealing with the
allopathic drugs and as per the report of the laboratory,
the recovered drugs were found to be of
substandard/spurious quality and not stated to be
manufactured, as mentioned, on the drugs, which were
found in the premises. This fact is sufficient to point out
the seriousness of the offence.
28. Merely, the complaint has been filed, after the
investigation and the matter is now pending, before the
Court of learned Special Judge, Nalagarh, H.P., does not
mean that the seriousness of the offence, which is required
to be taken into consideration, has been reduced.
29. Huge quantity of drugs, i.e. Amoxus-500
capsules (69 boxes), Doxtil-200 tablets (79 boxes), MEF-
200 tablets (100 boxes), Zathron-500 tablets (26 boxes),
Roxim-500 capsules (66 boxes) and Ampicillin-500
capsules (19 boxes), were found from the said premises.
The recovery of huge quantity of substandard/spurious
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drugs speaks voluminously about the seriousness of the
offence and in case, the applicant is ordered to be released
on bail, it will give wrong signal to the society that after
committing such offence, the applicant is still moving freely
in the society.
30. Even otherwise, the release of the applicant, on
bail, will also encourage other drug manufacturers to
indulge in preparation/marketing of substandard/
spurious drugs to earn easy money.
31. Moreover, the affect of the spurious drugs on
the persons, who used to consume the same, in the hope
and faith, is also one of the major factor, which cannot be
ignored by this Court, at this stage.
32. So far as the much relied arguments of learned
counsel, appearing for the applicant, that case of the
applicant falls in the exception/window, as provided by the
Legislature, in its wisdom, in Section 36AC of the Act, are
concerned, although, the disability has been mentioned as
15%, qua the lower left limb, but, the said disability is too
short to consider the applicant, within the definition of ‘ill’
or ‘infirm’.
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33. The report of the Government Analyst, Regional
Drugs Testing Laboratory, Chandigarh, which has been
reproduced above, also speaks voluminously about the
seriousness of the offence, as, percentage of the actual
contents, as per the analysis report, was 00.00% in five
drugs, mentioned at Sr. No.1 to 5, whereas, in the drug,
mentioned at Sr. No.6, the same was found to be 83.71%.
34. Another fact, which has rightly been
highlighted, by learned Additional Advocate General, is
that the similar case, regarding the indulgence of the
applicant, in manufacturing of spurious drugs, has also
been filed, against him, in the year 2020 and the said case
is stated to be pending, in the Court of learned Special
Judge, Nalagarh.
35. At this stage, there is nothing on record to
justify that the twin conditions, as numerated, in Section
36AC of the Act, are existing in favour of the applicant, as,
it cannot be said that the applicant has not committed the
offence, nor it can be said that in case, he is ordered to be
released on bail, he will not commit any offence. In the
absence of the said satisfaction, the bail application cannot
be accepted.
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36. Considering the seriousness of the offence, as
alleged, against the applicant and in view of the
discussions, made hereinabove, this Court is of the view
that the applicant is not able to make out a case for relief
of bail.
37. Consequently, the present bail application is
dismissed.
38. Any of the observations, made hereinabove,
shall not be taken as an expression of opinion, on the
merits of the case, as, these observations, are confined,
only to the disposal of the present bail application.
( Virender Singh )
Judge
December 23, 2024
( Gaurav Thakur )
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