Patna High Court – Orders
Saksham Anand vs The State Of Bihar on 20 August, 2025
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.35003 of 2025
Arising Out of PS. Case No.-187 Year-2023 Thana- BHAGALPUR COMPLAINT CASE
District- Bhagalpur
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Saksham Anand son of Manoj Kumar @ Manoj Kumar Sahu c/o - Balaji
Medical Sukhraj Ray Path tilka Manjhi, PS- Brari District -Bhagalpur P/a-
Resident of House No. 28 Near Durga Asthan Phulaut, Ps- Phulaut, Dist-
Madhepura
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Arun Kumar Sinha, Advocate
For the Opposite Party/s : Mr. Sanjay Kumar Singh, APP
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CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL ORDER
3 20-08-2025
Heard learned counsel for the petitioner and learned
counsel for the State.
2. The petitioner is apprehending arrest in connection
with Complaint Case No. 187 of 2023, dated 30.10.2023, lodged
under Sections 27(d), 27(c), 36(AC), 27(d), 28 and 28(A) of the
Drugs and Cosmetics Act, 1940.
3. It transpires to this Court that it is an official
complaint filed by the Drug Inspector against the petitioner, who
is alleged to be the proprietor of M/s Balajee Medico, Sukhraj
Rai Path, Tilakmanjhi, PS-Barari, District-Bhagalpur, on which
cognizance has been taken under Sections 27(d), 27(c), 36(AC),
27(d), 28, and 28(A) of the Drugs and Cosmetics Act, 1940,
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against the petitioner, and summons have been issued.
Subsequently, an NBW has also been issued on 18.03.2025.
4. As per the allegations made in the complaint, an
inspection was conducted at the shop of the petitioner, namely,
M/s Balajee Medico, Sukhraj Rai Path, Tilakmanjhi, PS-Barari,
District-Bhagalpur. During the inspection, the registered
pharmacist of the medical shop, along with his registration
number, was not present. It was found, based on information
provided by representatives of the Enforcement of Intellectual
Property Rights, that various drugs, namely Clavam 625 Tab,
Pan D, and Pan 40, were present at the premises, for which the
petitioner-proprietor failed to produce the relevant purchase
invoices. Since no purchase invoices or source information were
available at the spot, the sale of those medicines was stopped. It
was alleged that the said medicines were not up to the standard
mark. Accordingly, samples of the said medicines were sealed in
the presence of the proprietor and sent to the Government
Analyst, RDTL, Guwahati, Assam, for testing. The report of the
Government Analyst has been received, which indicates that the
sample is not of standard quality. It is for this reason the case
has been lodged, in which the petitioner has also been made an
accused.
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5. Learned counsel for the petitioner submits that the
petitioner is innocent and has committed no offence. Counsel
further submits that in the year 2008, significant amendments
were made to the Drugs and Cosmetics Act, 1940 (23 of 1940),
and by virtue of Act No. 26 of 2008, Section 36AC was
inserted, according to which the offences under the Act have
been made cognizable and non-bailable.
6. It is further submitted that while in some cases the
prescribed punishment is less than three years and in others it
exceeds three years, the nature of the offence under the amended
Act remains cognizable and non-bailable regardless. Therefore,
even though certain sections prescribe punishment of less than
three years, since the Act is a special legislation, the provisions
of the CrPC / BNSS shall not override the special provisions.
Accordingly, it is submitted that anticipatory bail is
maintainable, despite the fact that the punishment under some
sections is less than three years.
7. Counsel further submits that the petitioner is a
licensed seller of medicines, holding a valid license to operate,
and he sells medicines manufactured by companies that are
required to comply with the laws relating to Intellectual
Property Rights (IPR) as well as the Drugs and Cosmetics Act
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for the manufacturing and sale of drugs. It is submitted that if
any drug is found to be not up to the prescribed standard, and it
is admittedly stated by the Drug Inspector that the drug in
question was in sealed packaging (tablet form), then in such a
case, it is the manufacturer or the company responsible for the
preparation of the drug who should be held liable under the
8. He further submits that, as a licensed retailer, the
petitioner is only responsible for the sale of the medicines and
not for their manufacturing or quality control. His accountability
is limited to compliance with licensing norms, i.e., either he
continues operating under the license or his license may be
subject to cancellation. He is in no way involved in the
manufacturing process or in ensuring the quality standards of
the drugs, as every drug is manufactured in accordance with
applicable laws, under which the molecule is registered, tested,
verified, and approved by specialized government agencies
authorized by the Government of India for regulating
pharmaceuticals. The petitioner has no role in those processes.
9. Learned APP for the State opposes the prayer for
bail of the petitioner and submits that the drug sample in
question was sold from the petitioner’s shop and was sent, in his
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presence, to the Government Analyst. Upon analysis, the sample
was found to be not up to the prescribed standard.
10. This Court is of the view that, based on the
allegations on which the case has been lodged, it is primarily the
manufacturer or the selling company that may be held
responsible. It shall be a matter for trial to determine whether
the said medicine was sold by the shopkeeper after procuring it
from the company, or whether the shopkeeper was himself
involved in the manufacturing of the said tablet.
11. Prima facie, there is no allegation that the
shopkeeper has manufactured the said tablet. As such, this Court
finds that, after the 2008 amendment to the Drugs and
Cosmetics Act, the legal position has changed, making the
offence non-bailable. Cognizance has been taken under Section
36AC, which covers the sections under which the present
cognizance has been taken.
12. In the present facts and circumstances of this case,
let the above named petitioner be released on anticipatory bail,
in the event of arrest or surrender before the Trial Court within a
period of 4 weeks from today, on furnishing bail bond of
Rs.30,000/- (Rupees Thirty Thousand) as mentioned in Section
2(1)(d) of the BNSS, 2023 to the satisfaction of 1 st Additional
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District & Sessions Judge cum Special Judge Drug and
Cosmetic, Bhagalpur, in connection with Complaint Case No.
187 of 2023, subject to the conditions as laid down U/s 482(2)
of the BNSS, 2023.
(Dr. Anshuman, J.)
Aman Kumar/-
U T