Orissa High Court
Prof. Dr. Surendra Nath vs State Of Odisha ….. Opposite Party on 16 April, 2025
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.1628 of 2022
An application under Section 482 of the Code of Criminal
Procedure, 1973.
Prof. Dr. Surendra Nath ..... Petitioners
Senapati & Anr.
Mr. Prateik Parija, Adv.
along with
Mr.L.K. Maharana, Adv.
-versus-
State of Odisha ..... Opposite Party
Mr.Niranjana Maharana, A.S.C.
for the Vigilance Dept.
CRLMC No.1629 of 2022
Prof. Dr. Surendra Nath ..... Petitioners
Senapati & Anr.
Mr. Prateik Parija, Adv.
along with
Mr.L.K. Maharana, Adv.
-versus-
State of Odisha ..... Opposite Party
Mr.Niranjana Maharana, A.S.C.
for the Vigilance Dept.
Page 1 of 51
CORAM:
JUSTICE A.K. MOHAPATRA
Date of Hearing : 26.07.2024 ( in CRLMC No.1628 of 2022)
23.12.2024 (in CRLMC No.1629 of 2022)
Date of Judgment: 16.04.2025
A.K. Mohapatra, J. :
1. Heard learned counsel for the Petitioners as well as
learned Additional Standing Counsel for the Vigilance Dept.
Perused the CRLMC application, as well as other materials
placed on record. Since the factual background of CRLMC
No.1628 of 2022 is identical to that of CLMC No.1629 of
2022, both the matters are taken up together for consideration
and the same are being disposed of by this common judgment.
PRAYER:
CRLMC No. 1628 of 2022, filed with a prayer to quash
the FIR registered as Vigilance Cell PS Case No. 89
dated 15.09.2016 corresponding to V.G.R. Case No. 86
of 2016 pending in the file of Ld. Special Judge
(Vigilance), Cuttack for the commission of offences
under Sections 13(1)(d) read with 13(2) of the
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Prevention of Corruption Act, 1988 (“PC Act“) alongwith Sections 120-B, 468, 471 of the Indian Penal
Code, 1860 (“IPC“),
CRLMC No. 1629 of 2022, filed with a prayer to quash
the FIR registered as Vigilance Cell PS Case No. 87
dated 27.08.2016 corresponding to V.G.R. Case No. 82
of 2016 pending in the file of Ld. Special Judge
(Vigilance), Cuttack for the commission of offences
under Sections 13(1)(e) read with 13(2) of the
Prevention of Corruption Act, 1988 (“PC Act“) along
with Sections 34 of the Indian Penal Code, 1860
(“IPC“)
2. The present CRLMC applications, have been filed by
invoking the inherent power of the court under section 482 of the
Cr.P.C., by the petitioners who are not only doctors by profession
are related to each other as husband and wife with a prayer to
quash the proceeding borne out of the FIR registered as Cuttack
Vigilance Cell PS Case No.87 and 89 respectively for offences as
alleged in the FIRs files along with the respective CRLMC
applications on the grounds as narrated in such applications. At
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the outset, counsel for the Petitioner alleged victimization of the
Petitioner and to block the promotional prospects of the
Petitioner. It was also contended that the FIRs have been
registered without event conducting a preliminary enquiry with
regard to the veracity of the allegation. Although, the present
Petitioner was arrested on 16.09.2016, but later on he was
enlarged on bail by the order dated 04.10.2016 passed by this
Court in BLAPL No. 5920 of 2016. Thus, the counsel for the
Petitioners tried to demonstrate that the very continuance of the
proceeding would be gross abuse of process of law.
3. Before proceeding with the adjudication of the matter at
hand, it would be most expedient to enumerate the prosecution
case, as gathered from the FIRs filed on 15.09.2016 and
27.08.2016, in a succinct manner.
FACTUAL BACKGROUND OF CRLMC No.1628 of 2022
4. Initially, an FIR was lodged against the present Petitioner
No. 1, Prof. Dr. Surendra Nath Senapati and Petitioner No. 2,
Prof. Dr. Dipti Rani Samanta, alleging that the present petitioners
abused their official position and showed undue favour to M/s
J.B.S.L Chemical & Pharmaceuticals, Mangalabag, Cuttack
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(herein referred to as “JBSL”). The petitioners, Prof. (Dr.)
Surendra Nath Senapati (Petitioner No. 1), HOD Radiation
Oncology and his wife Prof. (Dr.) Dipti Rani Samanta (Petitioner
No. 2), Asst. Professor, Medical Oncology, are renowned doctors
who have been practising at the Acharya Harihar Regional Cancer
Centre, Cuttack now Acharya Harihar Post Graduate Institute of
Cancer (herein referred to as “AHRCC”) for more than two
decades.
5. It has been alleged that after the introduction of the
Odisha State Treatment Fund (“OSTF”) and the Biju Krushak
Kalyan Yojana (“BSKY”), which enabled cancer patients in the
state to claim reimbursements from the Government of Odisha for
cancer medicines purchased under prescription by providing the
patients with a cashless facility whereby the cost of the drugs was
paid to the empanelled shops by the Government of Odisha after
verification of the prescription/bills by a treating doctor, the
present petitioners have been prescribing high-cost chemotherapy
medicines manufactured by JBSL, which is a proprietorship
concern of the above-named Sudhanshu Das. Further, to bolster
such allegations, a comparative chart has been provided in the
FIR showing the price of anti-cancer drugs under the JBSL and
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those by other known companies sold by empanelled shops. Such
a comparative table divulges the fact that anti-cancer drugs by
JBSL were priced higher than other similar drugs by various drug
manufacturers.
6. The FIR also reveals that the present petitioners have
exploited the aforementioned government schemes by conniving
with the above-named Sudhanshu Das, proprietor of JBSL, and
manufacturing and marketing chemotherapy medicine under the
brand name of J.B.S.L. Chemical and Pharmaceuticals Pvt. Ltd.
from May of 2013 onwards. Additionally, the enquiry has
revealed that even though JBSL marketed the Chemotherapy
Drugs under the brand of JBSL, however, the Accused No. 3
Sudhansu Das instructed M/s Admac Life Sciences, Solan,
Himachal Pradesh, one of the manufacturers of the chemo drugs
in question, to print the name and address of the marketer of the
said drugs as J.B.S.L. Chemical and Pharmaceutical (Oncology
Division), SCF-46, Sec-70, Mohali (Punjab) and another
manufacturer Celon Laboratories Pvt. Ltd. to also print the
address of the manufacturer as J.B.S.L. Chemical and
Pharmaceutical, Vyas Complex, Kotlanala, Dist. Solan, Himachal
Pradesh. There has been a further insinuation that the above-
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named Sudhansu Das (Accused No.3) had also instructed the
aforementioned manufacturers to print the MRP of the chemo
drugs in question at an exorbitant price despite the manufacturing
costs of such drugs being low. Additionally, the FIR mentions
that the investigating authorities have ascertained that not only
does JBSL not have any drug licenses issued in its name in
respect of its establishments at Mohali and Solan, but also that no
such business establishments of JBSL exist at Mohali and Solan.
7. Additionally, the FIR alleges that the present petitioners,
being fully aware of the aforesaid context, proceeded to prescribe
only the anti-cancer drugs of the JBSL brand, which were
available at an inflated price when compared to other similar
types of anti-cancer drugs, by other competitors, that were
available in the market during the period between May of 2013 to
December of 2015 when the state government took a decision to
instead procure anti-cancer medications directly from the
manufacturers. The FIR further reveals that after such a decision
of the state government, the present petitioners abruptly stopped
prescribing Chemotherapy drugs under the JBSL brand and, the
JBSL proprietorship concern also suddenly stopped marketing
anti-cancer drugs under their brand name.
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8. In such backdrop, it has finally been alleged that the
present petitioners have abused their official positions and have
knowingly prescribed the Chemotherapy drugs under the JBSL
brand that were ,exorbitantly priced, and by doing so they have
connived with one Sudhansu Das i.e. the Accused No. 3, and have
accumulated unlawful pecuniary gains to the tune of Rs.
26,85,557/- (Rupees Twenty Six Lakh Eighty Five Thousand Five
Hundred and Fifty Seven only), thereby causing a resultant loss of
an equivalent amount to the government exchequer which is not
only against public interest but also has resulted in an exhaustion
of funds under the OSTF and BKKY schemes of the government
and in turn, incomplete treatment of many of the poor patients
covered under the aforesaid schemes.
FACTUAL BACKGROUND OF CRLMC No.1629 of 2022
9. Similarly, CRLMC No.1629 of 2022 arises out of Cuttack
Vigilance P.S. Case No.87 of 2016. In the Vigilance F.I.R.,
wherein both the Petitioners have been shown as accused, it has
been alleged that the Petitioners, by abusing their official position
and by showing undue official favour to M/s JBSL firm, have
recommended the patients to purchase costly misbrand chemo
injections of the abovenamed firm and thereby causing huge loss
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of government money of Odisha State Medical Corporation Ltd.
On such allegation, a Vigilance enquiry was conducted. During
such enquiry, simultaneous searches were conducted on
09.08.2016 in the residential flat of the abovenamed accused
persons i.e. Flat bearing No.301, Majestic Tower, Sana Zobra,
Cuttack, AHRCC at SCB Medical College Premises, Cuttack as
well as in the shop of M/s JBSL at Kathagola Sahii, Cuttack on
the strength of search warrants issued by the Spl. Judge, Vigilance
Cuttack.
10. The F.I.R. in Vigilance Case No.87 of 2016 further
reveals that both the accused persons are in possession of huge
assets disproportionate to their known sources of income. Hence,
as per direction enquiry was conducted to work out the quantum
of disproportionate assets in possession of the Petitioners. Such
enquiry further reveals that both the Petitioners are employees of
A.H.R.C.C., Cuttack which is an autonomous body and has been
registered under the Societies Act. The employees of AHRCC are
under the Payroll of State Government and as such they are
Public Servants. It has also been alleged that both the Petitioners
are filing IT returns regularly showing income from salary,
profession (Private Practice and Clinical Trials), house property
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and other sources. Although, they are required to submit their
property returns as per the Government Servants’ Conduct Rules,
1959, however, they have never submitted property returns during
their service period. Moreover, on the basis of the search conduct
on 09.08.2016 and on further enquiry, the assets, income and
expenditure of the accused persons were ascertained by referring
to different authorities. Their income from salary, profession,
house property and other sources have also been duly considered
after deduction of expenditure regarding payment of the tax
liabilities and other heads. As per the table appended to the F.I.R.,
the assets of the Petitioners have been valued at
Rs.3,35,35,022.00/-. Similarly, the total income of the Petitioners
from all sources has been assessed at Rs.2,43,31,335.00/-.
Whereas, the expenditure of the Petitioners has been assessed at
Rs.2,02,99,012.00/-. Accordingly, the Vigilance authorities have
come to a conclusion that the Petitioners possess asset
disproportionate to their known sources of income to the tune of
Rs.2,95,02,699.00/-. As such, a case has been registered against
the present Petitioners for commission of an offence punishable
under Section 13(2) read with 13(1)(e) of the P.C. Act, 1988 read
with Section 34 of the I.P.C.
Page 10 of 51
11. On a careful analysis of the factual background of both
the cases, this Court at the outset, would like to observe that the
allegation made in the Vigilance P.S. Case No.87 of 2016 is
consequential to the allegation made in Cuttack Vigilance P.S.
Case No.89 of 2016. Moreover, the Petitioners in both the cases
are same and that the factual background of both the cases are
identical in nature. As has been observed hereinabove, as a result
of the allegation made in F.I.R. No.89 of 2016, it is alleged that
the Petitioners, by abusing their official position, have amassed
ill-gotten money and have acquired assets from such ill-gotten
money which are disproportionate to their known sources of
income. Thus, for the sake of convenience, this Court is of the
considered view that both the cases be decided together.
12. Heard Mr. Prateik Parija along with Mr. L.K. Maharana,
learned Counsels appearing for the Petitioners. At the outset,
learned Counsel appearing for the Petitioners unequivocally
denied all allegations against the Petitioners, asserting that these
accusations are false and, at best, fabricated. Regarding the
prosecution’s claim that JBSL’s anti-cancer drugs are significantly
more expensive than similar drugs available in the market,
learned Counsel appearing for the Petitioners argued that these
Page 11 of 51
allegations are merely speculative. To substantiate this position,
learned Counsel appearing for the Petitioners contended that the
methodology used by the opposite parties to demonstrate that
JBSL’s chemotherapy drugs are more expensive than the average
price of comparable drugs produced by other companies is
fundamentally flawed and unreliable.
13. Learned Counsel appearing for the Petitioners objected to
the methodology employed by the Vigilance Dept. to calculate the
average cost of chemotherapy drugs available in the market and
alleged the same to be arbitrary and whimsical. Learned Counsel
for the Petitioners further argued that the Vigilance Dept. simply
added the prices of three different chemotherapy drugs from three
different companies and divided the total by three to present an
average price. It was further contended that this approach does
not provide an accurate reflection of the actual prices of
chemotherapy drugs in the market. Additionally, Learned Counsel
for the Petitioners challenged the pricing information for various
chemotherapy drugs provided by the Vigilance Dept., asserting
that the Vigilance Dept. has arbitrarily assigned different prices
rather than relying on the accurate price indicators available under
the “PHARMA SAHI DAAM” section on the National
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Pharmaceuticals Pricing Agency (NPPA) website. Moreover, it
was submitted that it is also not known as to which experts, if
any, were consulted by the investigating agency before arriving at
the prices of the various chemotherapy drugs mentioned in the
FIR. Learned Counsel for the Petitioner at this stage submitted
that the investigating office should have consulted either the
Drugs Controller of Odisha or the NPPA or the DPCO (Drug
Price Control Orders), i.e. the only authorities on the price control
of various chemotherapy drugs, before illustrating the prices of
different chemotherapy drugs available in the market.
14. Learned Counsel appearing for the Petitioners further
argued that within each category of chemotherapy drugs or anti-
cancer medications, multiple companies manufacture and market
similar drugs at varying prices. To illustrate this point, Learned
Counsel for the Petitioners noted that the drug Paclitaxel, sold by
JBSL under the name JBTAXEL-260, was priced at Rs.5,595 per
vial. In contrast, the same drug, sold by Lupin Pharmaceuticals as
PACLISTAR 260, was priced at Rs.9,280, and by Intas
Pharmaceuticals Ltd. as CYTAX-260, at Rs.9,727. Learned
Counsel appearing for the Petitioners emphasized that these prices
are nearly double of what JBSL charged for the same drug. To
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further substantiate this claim, Learned Counsel appearing for the
Petitioners has presented a detailed comparative chart, included as
Annexure-5 to the CRLMC application No. 1628 of 2022,
showing the prices of various generic chemotherapy medications
from different reputed brands vis-a-vis that of JBSL. Learned
Counsel appearing for the Petitioners contended that a brief
review of this chart demonstrates that JBSL’s prices were
generally reasonable and, in some cases, even lower compared to
the prices charged by other reputed companies for similar
chemotherapy drugs.
15. With regard to the pricing of the Chemotherapy drugs in
question, Learned Counsel appearing for the Petitioners also
contended that the price ceiling of various medicines in India has
been fixed by the Ministry of Chemicals and Fertilizers,
Department of Pharmaceuticals, Government of India, by
adopting two different methods. Firstly, by DPCO (Drug Price
Control Orders) issued under section 3 of the Essential
Commodities Act, 1955 on 15.05.2013. Secondly, by the NPPA
(National Pharmaceuticals Pricing Authority). In course of
argument, he further referred to a comparative chart, containing
the prices of various chemotherapy drugs by JBSL vis-a-vis the
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price ceiling fixed under DPCO and NPPA, under Annexure 6 to
the CRLMC application No. 1628 of 2022. Referring to the same,
the Learned Counsel appearing for the Petitioners submits that a
cursory glance at the chart will show that none of the anti-cancer
drugs under the JBSL brand breached the prescribed price ceiling.
16. Learned Counsel appearing for the Petitioners further
asserts that the Opposite Party (Vigilance Department) has not
claimed that the anti-cancer medications marketed under the
JBSL brand were ineffective, counterfeit, spurious, or less
effective compared to other similar drugs available in the market.
Moreover, during the investigation, the vigilance department
seized the drugs in question from JBSL and sent them to the State
Drug Testing and Research Laboratory in Bhubaneswar.
Referring to the report from the drug testing authority, provided
as Annexure-4 to the present application, Learned Counsel
appearing for the Petitioners submitted that the report confirms
that the tested drugs met the standard quality requirements as
defined under the Drugs and Cosmetics Act, 1940.
17. In response to the above contentions, Mr.Niranjan
Maharana, learned Additional Standing Counsel for the Vigilance
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Dept., Odisha submitted that while prescribing a specific drug for
treating any condition or disease is within the professional
discretion of the treating doctor. But prescribing a particular
brand of anti-cancer medication–especially one that lacks a
legitimate manufacturing address and is priced significantly
higher than similar drugs available in the market–can constitute
an abuse of official position by the treating doctor. This is
particularly pertinent when considering poor patients who
benefitted from government schemes such as OSTF and BKKY.
Learned Counsel Appearing for the State-Opposite Party argued
that such practices could very well implicate the petitioners in
offences punishable under the Prevention of Corruption Act, 1988
(PC Act). Consequently, it was contended that the petitioners’
assertion that the prices of JBSL chemotherapy drugs are within
the ceiling set by DPCO and NPPA is irrelevant to the issue at
hand.
18. Additionally, Learned Counsel appearing for the State-
Opposite Party raises concerns about how the petitioners acquired
knowledge about the efficacy of the chemotherapy drugs and
injections under the JBSL brand, particularly when other doctors
did not have access to such information. He further contends that
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the effects of other chemotherapy drugs available in the market
are widely recognized and that these alternatives are offered at a
lower cost compared to JBSL’s drugs. This discrepancy raises
questions about the basis for the petitioners’ preference for JBSL
products, suggesting a lack of transparency or justification for
their choice.
19. Regarding the allegation that the petitioners exclusively
prescribed expensive drugs under the JBSL brand, Learned
Counsel Appearing for the Petitioners has contested the validity
of these claims. It was argued that contrary to the allegations, the
petitioners prescribed drugs from various other brands during the
relevant period. Learned Counsel appearing for the Petitioners
explained that drug prescriptions were made on a case-by-case
basis, considering the dosage requirements and the health
conditions of the patients. Furthermore, Learned Counsel
appearing for the Petitioners provided evidence showing that the
petitioners prescribed Paclitaxel from 19 different companies,
Oxaliplatin from 15 different companies, Docetaxel from 11
different companies, Carboplatin from 10 different companies,
and Epirubicin from 10 different companies. He further
contended that these facts undermine the prosecution’s allegation
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that the Petitioners exclusively prescribed high-cost JBSL drugs
for illegal enrichment. This assertion, according to learned
Counsel for the Petitioners, is therefore unfounded and lacks
merit in light of said submission.
20. Additionally, it was argued on behalf of the Petitioners
has contended that the allegation that the present petitioners were
the only doctors prescribing chemo drugs under the JBSL is
wholly unfounded. It was clarified that, at the relevant time, three
doctors from the Medical Oncology department and three doctors
from the Radiation Oncology department were involved in
prescribing chemotherapy drugs to patients. Given that Petitioner
Nos. 1 and 2 were the senior-most doctors and heads of the
Medical Oncology and Radiation Oncology departments
respectively, they naturally treated the highest number of patients
attending AHRCC. Consequently, they prescribed more JBSL
drugs than their colleagues. Furthermore, Learned Counsel
Appearing for the Petitioners highlighted that three other doctors
at AHRCC–Dr. Niharika Panda, Dr. Prasanta Kr. Parida, and Dr.
Lalmohan Soy–were also prescribing anti-cancer drugs under
the JBSL brand during the relevant period. Thus it was contended
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that the allegations of undue favouritism towards JBSL by the
petitioners are baseless and unsubstantiated.
21. Learned Counsel appearing for the State-Opposite Party,
while addressing the issue of the prescription of anti-cancer drugs
by doctors at AHRCC, submitted that among the five Oncology
doctors at AHRCC, Cuttack, a total of 2646 prescriptions for
JBSL brand chemotherapy injections/drugs were made. Of these
2,646 prescriptions, 2641 were issued by the present petitioners,
while the remaining five prescriptions only were made by the
three other doctors–two each by Dr. Prashanta Kumar Parida and
Dr. Niharika Panda, and one by Dr. L. M. Soy. Learned Counsel
appearing for the State-Opposite Party contended that this
distribution of prescriptions underscores that the petitioners
accounted for the vast majority of prescriptions for JBSL brand
chemotherapy drugs. Consequently, it was argued that the
petitioners cannot justify their actions by claiming that other
AHRCC doctors also prescribed JBSL brand drugs, given that the
vast majority of such prescriptions were issued by the petitioners
themselves.
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22. Learned Counsel appearing for the Petitioners, in response
to the above, submitted that the prosecution has completely failed
to address the fact that there was any guideline or instruction from
either the Department of Health and Family Welfare, Government
of Odisha, or any other department of the state government, or
AHRCC regarding any particular chemotherapy drug which could
be prescribed by the treating doctors or at what price should such
drugs be prescribed (other than the price ceiling set by DPCO and
NPPA as discussed earlier). Therefore, the present petitioners
were free to prescribe chemotherapy drugs of any brand as long
as the manufacturer/marketer of the said drugs possessed the
appropriate licenses by the Drug Controller of the state, and such
drugs were available at the empanelled shops, all of which JBSL
adhered to. Learned Counsel appearing for the Petitioners further
emphasized that DPCO and NPPA are the sole authorities
responsible for regulating the pricing and quality of chemotherapy
drugs. The NPPA works in coordination with state authorities to
enforce these regulations, including the procurement and analysis
of drug samples available in the market. During the relevant
period from 2013 to 2016, no violations by JBSL were reported.
Moreover, Learned Counsel Appearing for the Petitioners
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contended that if any violations were to occur, the NPPA’s
remedy would involve sanctioning the offending party and
recovering the overcharged amount, along with interest at a rate
of 15% per annum. In cases of non-compliance, the concerned
collector would be instructed to recover the outstanding amount
under the Essential Commodities Act, 1955. Further while
elaborating the factual background of the present case, the
counsel for the Petitioners argued that the prosecution has not
demonstrated any instance where JBSL was found in violation of
these regulations.
23. At this stage, Learned Counsel appearing for the
Petitioners addressed the prosecution’s allegations that the
petitioners’ intentional prescription of higher-priced JBSL
chemotherapy drugs, compared to similar drugs from other
companies available in the market, resulted in many impoverished
patients–who were enrolled as beneficiaries of the OSTF and
BKKY schemes–being unable to complete their treatment. The
prosecution’s claim that the high cost of JBSL drugs depleted
state funds allocated for these schemes, learned Counsel
appearing for the Petitioners in reply, strongly disputed these
claims as unfounded. It was submitted that typically, a patient
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requires six rounds of chemotherapy for complete treatment, with
each cycle averaging around Rs.10,000. This results in a total
treatment cost of approximately Rs.60,000. Under the state
government schemes, OSTF and BKKY, each patient was
sanctioned a total sum of Rs.1,00,000 for their treatment.
Therefore, Learned Counsel appearing for the Petitioners
contended that the prosecution’s claim that patients could not
complete their treatment due to the high price of JBSL drugs is
entirely untenable, given that the funds provided under these
schemes were more than sufficient to cover the cost of treatment.
24. Learned Additional Standing Counsel for the Vigilance
Dept. argued that, contrary to the petitioners’ assertions, the costs
associated with a typical cancer treatment protocol extends well
beyond mere chemotherapy injections. Comprehensive cancer
care entails substantial additional expenses, including
pathological tests, supportive therapies, and various other
essential medications. When these significant costs are factored in
alongside the notably high and exorbitant prices of JBSL drugs,
the financial support provided through state government schemes
proves inadequate. Consequently, many patients, who are already
in challenging circumstances, find themselves unable to complete
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their cancer treatment. This inadequacy in financial assistance
places these patients in a particularly vulnerable and
disadvantaged position, exacerbating their plight and undermining
the effectiveness of the available support schemes.
25. Additionally, learned Additional Standing Counsel for the
Vigilance Dept. submitted that the investigation has found that the
manufacturer’s address that were printed on the JBSL
drugs/injections, i.e. J.B.S.L. Chemical and Pharmaceutical
(Oncology Division), SCF-46, Sec-70, Mohali (Punjab) and
J.B.S.L. Chemical and Pharmaceutical, Vyas Complex, Kotlanala,
Dist. Solan, Himachal Pradesh, as business addresses in Solan and
Punjab, are actually non-existent and false. Moreover, Learned
Counsel for the State-Opposite Party submitted that the concerned
Drug Authorities of the State of Punjab and Himachal Pradesh
have made it clear that no drug licenses were issued in favour of
said addresses in their respective states.
26. In response to the prosecution’s claims that JBSL was
manufacturing drugs without the necessary licenses, Learned
Counsel appearing for the Petitioners contended that JBSL is not,
as alleged, the manufacturer of the drugs in question. Instead,
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JBSL serves merely as the marketer of these drugs, which are
actually manufactured by Admac Life Sciences in Solan and
Celon Laboratories Pvt. Ltd. in Telangana. Furthermore, Learned
Counsel Appearing for the Petitioners emphasised that these
manufacturers do not produce the drugs exclusively for JBSL.
Regarding the issue of appropriate drug licenses, Learned
Counsel appearing for the Petitioners argued that JBSL holds all
the necessary licenses issued by the State Government. It was also
submitted that JBSL supplied their drugs to empanelled shops
selected by the AHRCC.
27. Additionally, Learned Counsel appearing for the
Petitioners asserted that all the drugs sold by JBSL were priced
within the cap set by NAPA, as previously demonstrated.
Moreover, in response to the allegations that JBSL lacks a
physical office at the addresses listed on the packaging of its
chemotherapy drugs i.e. in Solan and Himachal Pradesh, and that
JBSL does not possess the required drug licenses for these
locations, Learned Counsel appearing for the Petitioners
contended that even if these claims are assumed to be true, the
petitioners cannot be held accountable. This is because the
petitioners are neither involved in the manufacturing or marketing
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of the drugs in question nor are they partners in JBSL. However,
Learned Counsel appearing for the Petitioners further submitted
that it is an established fact that JBSL Chemicals and
Pharmaceuticals, Cuttack, was duly registered with the Drug
Controller of Odisha and was, therefore, authorized to supply its
drugs within the state of Odisha.
28. Furthermore, regarding allegations of Criminal
Conspiracy between the present petitioners and Accused No.3,
learned Additional Standing Counsel for the Vigilance Dept.,
submitted that there exists a definite criminal conspiracy between
the present petitioners and Accused No. 3, Sudhansu Das, who is
the proprietor of M/s JBSL Chemical and Pharmaceuticals,
Mangalabag, Cuttack. Learned Additional Standing Counsel for
the Vigilance Dept. submits that there were prior acquaintances
between Accused No. 3 and the present petitioners, especially
Petitioner No. 2, who had a cabin near the proprietorship of the
Accused No. 3 in the year 2008. Thereafter, it has been contended
that the Accused No. 3 connived with the present petitioners and
started manufacturing and marketing the Chemo Drugs under the
brand name of JBSL, from May of 2013.
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29. To further substantiate the allegations that the petitioners
deliberately showed undue favour to Accused No. 3, Sudhansu
Das, learned Additional Standing Counsel for the Vigilance Dept.
argued that the chemotherapy medications under the JBSL brand
prescribed by the petitioners were exclusively available at JBSL
Chemicals and Pharmaceuticals, Mangalabag, Cuttack. He further
submitted that patients often faced difficulties in procuring the
prescribed JBSL drugs. Furthermore, he would also argue that
these chemotherapy drugs under the JBSL brand were not
available under the “Nirmaya Scheme” or at any other
government-empanelled shops, but exclusively through the
proprietorship of Accused No. 3. It was also contended that the
Petitioners continued to prescribe JBSL drugs until 2015 when
the State Government decided to directly procure medications
from the manufacturing companies.
30. Learned Additional Standing Counsel for the Vigilance
Dept. further submitted that this conduct clearly demonstrates the
petitioners’ undue favour and accommodation towards co-accused
Sudhansu Das, thereby establishing a criminal conspiracy
between the parties. In course of argument, learned Additional
Standing Counsel for the Vigilance Dept. also questioned how the
Page 26 of 51
petitioners became aware of the chemotherapy drugs under the
JBSL brand. It was argued that the petitioners have failed to
identify any authorized or widely circulated source from which
they could have obtained information about these drugs. In
contrast, information regarding the efficacy of other
chemotherapy drugs, which are priced more favourably than the
JBSL brand, was readily available in various national and
international journals and magazines.
31. Refuting the above claims of the Opposite Party regarding
the allegation of a criminal conspiracy between the present
petitioners and Accused No. 3, Sudhansu Das, Learned Counsel
appearing for the Petitioners unequivocally controverted such
claims by asserting that the petitioners have no involvement
whatsoever in the proprietorship concern of Accused No.3. He
further contended that the present petitioners are renowned
doctors of Oncology practicing at AHRCC for more than two
decades while Accused No.3-Sudhansu Das, who is the proprietor
of JBSL, started marketing Chemotherapy drugs under the JBSL
brand only in the year 2013. In such view of the matter, Learned
Counsel Appearing for the Petitioners submitted that any
illegalities committed by Sudhansu Das-Accused No. 3, if at all,
Page 27 of 51
cannot be vicariously attributed to the petitioners, especially in
the context of the fact that the present petitioners are practising
professionals who do not have any role in either the
manufacturing or the procurement, or even the marketing of the
anti-cancer drugs in question.
32. Lastly, Learned Counsel appearing for the Petitioners
submitted that the FIR against the Petitioners was filed in 2016.
Since then, more than six years have elapsed, during which
numerous investigations have been conducted without arriving at
any definite conclusion. Additionally, a second FIR (arising out
of Vigilance PS Case No. 87 which was filed against the
petitioners on 27.08.2016) was also registered against the present
petitioners wherein no chargesheet has yet been filed. Learned
Counsel appearing for the Petitioners further contended that this
prolongation of criminal proceeding has caused significant
prejudice and hardship to the Petitioners, affecting both their
personal and professional lives. It was submitted that due to the
long pendency of the present case, the Petitioner No.1, who was
in contention for being promoted to the post of Medical
Superintendent, AHRCC and being appointed as Appraiser on the
National Board of Examinations in Medical Sciences (NBEMS)
Page 28 of 51
for NEET-PG 2021, could not get the posts due to the pendency
of the present matter. Similarly, Petitioner No.2 has also suffered
professional stagnation owing to the long delay in finalising the
present criminal proceeding. The inaction of the Opposite Parties
has also severely damaged the reputation of the petitioners, who
are esteemed professionals in their respective fields. It has been
further argued that the pendency of these proceedings has resulted
in professional setbacks for the Petitioners, compounding the
worries of the Petitioner.
33. The Opposing Party-Vigilance Dept., protesting the
petitioners’ prayer, have relied on a judgment of the Hon’ble
Supreme Court in Niranjan Hermachandra Sashittal and Anr.
Vs. State of Maharashtra reported in (2013) 4 SCC 642. Learned
Additional Standing Counsel for the Vigilance Dept. submits that
the Apex court in the above judgment has observed that in cases
where Disproportionate Assets are involved or Misappropriation
of money is involved, or in Corruption cases, more time is
required for the completion of the investigation and Trial.
Additionally, he also submitted that the investigation in the matter
has taken a longer time to complete due to many reasons such as
the transfer of Investigating Officers, collection and verification
Page 29 of 51
of a large number of documents and materials, and the surge of
COVID-19 cases in the state for a period of time.
34. Furthermore, reference was also placed on the decision of
the Hon’ble Supreme Court in M/s Niharika Infrastructure Pvt.
Ltd. vs. State of Maharashtra and Ors. reported in (2021) SCC
OnLine (SC) 315, wherein the Hon’ble Apex Court while fixing
certain guidelines had held that when an offence is prima facie
made out from the FIR/Investigation, the High Court while
exercising power u/s 482 of CrPC or under Article 226 of the
Constitution of India should not interfere with the investigation
and should not quash the criminal proceedings at a nascent stage.
In such view of the matter, the learned counsel for the Vigilance
Dept. submitted that it is paramount in matters involving
disproportionate assets that a thorough, fair and proper
investigation is conducted, therefore, the High Court should
dismiss the prayer of the petitioners for quashing the present
criminal proceeding and instead issue appropriate directions for
completion of the investigation and trial as expeditiously as
possible or within a reasonable period of time so as to ensure that
the right of the accused to a speedy trial is maintained vis-a-vis
the larger societal and public interest at stake. Accordingly,
Page 30 of 51
learned counsel for the Vigilance Dept. submitted that the prayer
of the petitioners for quashing the criminal proceedings, at this
stage, be rejected.
35. Learned Counsel appearing for the Petitioners, in reply,
submitted that the law is fairly well settled that in cases where the
continuance of the criminal proceedings against the accused
persons would serve no purpose and the chance of conviction is
bleak considering the fact that the quality of enquiry conducted is
flawed, then, in such cases, the criminal proceeding is liable to be
quashed. In support of his contention, Learned Counsel
Appearing for the Petitioners referred to the pronouncements of
the Hon’ble Supreme court in Santosh De Vs. Archana Guha &
Ors. reported in 1994 2 BLJR 1271, wherein while entertaining
the appeal, the Hon’ble Supreme Court declined to interfere with
the order of the High Court, quashing the impugned Criminal
Proceeding, and observed that :-
“12. In our opinion, this unexplained delay of eight years
in commencing the trial by itself infringes the right of the
accused to speedy trial. In the absence of any material to
the contrary, we accept the finding of the High Court that
this delay of eight years is entirely and exclusively on
account of the default of the prosecution. Once that is so
Page 31 of 51
there is no occasion for interference in this appeal. It is
accordingly dismissed.”
36. The Learned Counsel for the Petitioners has also relied
on the judgment of this court in Nalinikanta Muduli Vs. State
of Orissa reported in 2004 (I) OLR 402 and Mahesh Chandra
Pattnaik Vs. State (Vigilance Department) reported in 2010
(I) OLR 631, wherein the right of the accused to a speedy trial
has been upheld against an inordinate delay in concluding the
trial and investigation respectively.
37. In addition to the above, the Learned Counsel
Appearing for the Petitioners has also placed reliance on the
following judgement of Hon’ble Supreme Court in
Hasmukhlal D. Vora and Anr. Vs. The State of Tamil Nadu
reported in AIR 2023 SC 102, wherein the Hon’ble Supreme
Court while setting aside the impugned order of the High Court
and quashing the impugned criminal proceeding have held
that:
“24. In the present case, the Respondent has provided no
explanation for the extraordinary delay of more than four
years between the initial site inspection, the show cause
notice, and the complaint. In fact, the absence of such anPage 32 of 51
explanation only prompts the Court to infer some sinister
motive behind initiating the criminal proceedings.
25. While inordinate delay in itself may not be ground for
quashing of a criminal complaint, in such cases,
unexplained inordinate delay of such length must be taken
into consideration as a very crucial factor as grounds for
quashing a criminal complaint.
26. While this court does not expect a full-blown
investigation at the stage of a criminal complaint,
however, in such cases where the accused has been
subjected to the anxiety of a potential initiation of
criminal proceedings for such a length of time, it is only
reasonable for the court to expect bare-minimum evidence
from the Investigating Authorities.
27. At the cost of repetition, we again state that the
purpose of filing a complaint and initiating criminal
proceedings must exist solely to meet the ends of justice,
and the law must not be used as a tool to harass the
accused. The law, is meant to exist as a shield to protect
the innocent, rather than it being used as a sword to
threaten them.
CONCLUSION
28. It must be noted that the High Court while passing the
impugned judgment, has failed to take into consideration
to the facts and circumstances of the case. While it is truePage 33 of 51
that the quashing of a criminal complaint must be done
only in the rarest of rare cases, it is still the duty of the
High Court to look into each and every case with great
detail to prevent miscarriage of justice. The law is a
sacrosanct entity that exists to serve the ends of justice,
and the courts, as protectors of the law and servants of
the law, must always ensure that frivolous cases do not
pervert the sacrosanct nature of the law.”
38. In such view of the matter, Learned Counsel appearing
for the Petitioners contended that the unexplained and inordinate
delay of such a long period of over eight years constitutes a
crucial ground that must be taken into account while considering
the prayer for quashing the present criminal proceeding. It was
further contended that even if the allegations in the FIR are taken
at their face value and accepted in its entirety, no prima facie
offence is constituted nor any case is made out against the
present Petitioners. Therefore, it was contended that the preset
criminal proceeding bearing Vigilance Cell PS Case No. 89
dated 15.09.2016 corresponding to V.G.R. Case No. 86 of 2016
pending in the file of Ld. Special Judge (Vigilance), Cuttack for
the commission of offences under Sections 13(1)(d) read with
13(2) of the Prevention of Corruption Act, 1988 (“PC Act“)
Page 34 of 51
along with Sections 120-B, 468, 471 of the Indian Penal Code,
1860 (“IPC“), be quashed.
39. Before proceeding with the final adjudication of the
matter at hand, this court would also like to place reliance on a
few judgements which are relevant in the context of the present
case in the following paragraphs;
40. In Directorate of Revenue and another v. Mohammed
Nisar Holia, reported in (2008) 2 SCC 370, the Hon’ble
Supreme Court explicitly recognises the right to not to be
disturbed without sufficient grounds as one of the underlying
mandates of Article 21 of the Constitution. Thus, the
requirement and need to balance the law enforcement power and
protection of citizens from injustice and harassment must be
maintained. It goes without saying that the State owes a duty to
ensure that no crime goes unpunished but at the same time it also
owes a duty to ensure that none of its subjects are unnecessarily
harassed.
41. In State of Andhra Pradesh v. Golconda Linga
Swamy reported in (2004) 6 SCC 522, a two-Judge Bench of the
Hon’ble Apex Court elaborated on the types of materials the
Page 35 of 51
High Court can assess to quash an FIR. The Court drew a fine
distinction between consideration of materials that were tendered
as evidence and appreciation of such evidence. Only such
material that manifestly fails to prove the accusation in the FIR
can be considered for quashing an FIR. The Court held:-
“5. …Authority of the court exists for advancement of
justice and if any attempt is made to abuse that
authority so as to produce injustice, the court has
power to prevent such abuse. It would be an abuse of
the process of the court to allow any action which
would result in injustice and prevent promotion of
justice. In exercise of the powers court would be
justified to quash any proceeding if it finds that
initiation or continuance of it amounts to abuse of the
process of court or quashing of these proceedings
would otherwise serve the ends of justice. When no
offence is disclosed by the complaint, the court may
examine the question of fact. When a complaint is
sought to be quashed, it is permissible to look into the
materials to assess what the complainant has alleged
and whether any offence is made out even if the
allegations are accepted in toto.
6. In R.P. Kapur v. State of Punjab, AIR 1960 SC
866 : 1960 Cri LJ 1239, this Court summarised some
categories of cases where inherent power can andPage 36 of 51
should be exercised to quash the proceedings : (AIR
p. 869, para 6)
(i) where it manifestly appears that there is a legal
bar against the institution or continuance e.g. want of
sanction;
(ii) where the allegations in the first information
report or complaint taken at its face value and
accepted in their entirety do not constitute the offence
alleged;
(iii) where the allegations constitute an offence, but
there is no legal evidence adduced or the evidence
adduced clearly or manifestly fails to prove the
charge.
7. In dealing with the last category, it is important to
bear in mind the distinction between a case where
there is no legal evidence or where there is evidence
which is clearly inconsistent with the accusations
made, and a case where there is legal evidence which,
on appreciation, may or may not support the
accusations. When exercising jurisdiction under
Section 482 of the Code, the High Court would not
ordinarily embark upon an enquiry whether the
evidence in question is reliable or not or whether on a
reasonable appreciation of it accusation would not be
sustained. That is the function of the trial Judge.
Judicial process, no doubt should not be an
Page 37 of 51
instrument of oppression, or, needless harassment.
Court should be circumspect and judicious in
exercising discretion and should take all relevant
facts and circumstances into consideration before
issuing process, lest it would be an instrument in the
hands of a private complainant to unleash vendetta to
harass any person needlessly. At the same time the
section is not an instrument handed over to an
accused to short-circuit a prosecution and bring
about its sudden death…..”
42. Next, the Hon’ble Apex Court in Pankaj Kumar v.
State of Maharashtra reported in (2008) 16 SCC 117 quashed
the criminal proceedings on account of “unwarranted prolonged
investigations” that caused inordinate delay. It was held that;
“24. Tested on the touchstone of the broad principles,
enumerated above, we are of the opinion that in the
instant case, the appellant’s constitutional right
recognised under Article 21 of the Constitution stands
violated. It is common ground that the first information
report was recorded on 12-5- 1987 for the offences
allegedly committed in the year 1981, and after
unwarranted prolonged investigations, involving
aforestated three financial irregularities; the charge-
sheet was submitted in court on 22-2-1991. Nothing
happened till April 1999, when the appellant and hisPage 38 of 51
deceased mother filed criminal writ petition seeking
quashing of proceedings before the trial court.
25. Though, it is true that the plea with regard to
inordinate delay in investigations and trial has been
raised before us for the first time but we feel that at this
distant point of time, it would be unfair to the appellant
to remit the matter back to the High Court for examining
the said plea of the appellant. Apart from the fact that it
would further protract the already delayed trial, no
fruitful purpose would be served as learned counsel for
the State very fairly stated before us that he had no
explanation to offer for the delay in investigations and
the reason why the trial did not commence for eight long
years. Nothing, whatsoever, could be pointed out, far
from being established, to show that the delay was in
any way attributable to the appellant.
……..
27. Be that as it may, the prosecution has failed to show
any exceptional circumstance, which could possibly be
taken into consideration for condoning the prolongation
of investigation and the trial. The lackadaisical manner
of investigation spread over a period of four years in a
case of this type and inordinate delay of over eight years
(excluding the period when the record of the trial court
was in the High Court), is manifestly clear.
Page 39 of 51
28. Thus, on facts in hand, we are convinced that the
appellant has been denied his valuable constitutional
right to a speedy investigation and trial and, therefore,
criminal proceedings initiated against him in the year
1987 and pending in the Court of the Special Judge,
Latur, deserve to be quashed on this short ground
alone.”
43. Moreover, it is a settled principle of law that according
to Article 21 of the Constitution, the petitioner is entitled to the
right to speedy investigation and trial. The Hon’ble Apex court
in A R Antulay v. R S Nayak reported in (1992) 1 SCC 225 has
identified that “Right to speedy trial is the right of the accused.”
in this regard reliance can also placed on Vakil Prasad Singh v.
State of Bihar, reported in (2009) 3 SCC 355 (see paragraph 24).
44. Further, with regard to inordinate delay in filing the
complaint it has been recently observed by the Hon’ble Supreme
Court in Hasmukhlal D. Vora & Anr. vs. State of Tamil Nadu
reported in 2022 SCC Online SC 1732, that though inordinate
delay in itself may not be a ground for quashing of a criminal
complaint, however unexplained inordinate delay must be taken
into consideration as a very crucial factor and ground for
quashing a criminal complaint.
Page 40 of 51
45. Lastly, in a case where a prayer has been made for the
quashing of a criminal proceeding arising out of the impugned
FIR, reliance must be placed on the parameters enumerated by
the Hon’ble Supreme Court in Bhajanlal’s judgement, reported
in 1992 Supp. (1) SCC 335;
“(1) Where the allegations made in the first information
report or the complaint, even if they are taken at their
face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against
the accused.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do
not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in support
of the same do not disclose the commission of any
offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officerPage 41 of 51
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis of
which no prudent person can ever reach a just
conclusion that there is sufficient ground for proceeding
against the accused.
(6) Where there is an express legal bar engrafted in any
of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the
grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge.”
46. Having heard the learned counsels for both the parties,
on a careful scrutiny of the documents attached to the record as
well as the factual and legal background of the present matter,
this Court on a close scrutiny of facts observed that it is
undisputed that the instant prosecution was lodged, without
Page 42 of 51
conducting a preliminary Inquiry, as mandatorily required, by an
Expert Committee of the concerned Field prior to registration of
this Criminal case against the accused-petitioners, who are
reputed doctors of the Premier Cancer Institute of the State of
Odisha, as the allegation is prescribing a particular Chemo Drug,
which relates to treatment of Cancer Patients under the OSTF
Scheme. Law is well settled in the case of P.Sirajuddin vs. State
of Madras reported in (1970) SCC 595 that in the matter of
medical treatment /medical negligence, prior to registration of
criminal Prosecution, there must be a Preliminary Inquiry by an
Expert Committee. Similar view has also been taken by the
Constitution Bench in the case of Lalita Kumari vs. State of UP,
reported in (2014) 2 SCC 1, with respect to cases involving the
allegation of corruption.
47. Furthermore, this Court is also of considered opinion
that there should have been a Preliminary Inquiry of the
allegations by an Expert Committee of doctors of the concerned
Field and the Committee Members should not have any conflict
of Interest with the accused-doctor. In the instant case, the
aforesaid mandatory principle as envisaged has not been
followed prior to the initiation of this criminal Prosecution.
Page 43 of 51
48. It is also the admitted position of the Prosecution that
none of the Rules or Provisions of the OSTF Scheme has been
violated in this Case by the petitioners. None of the patients have
also made any complaint against the accused-doctors regarding
the lack of any treatment or non-completion treatment or any
undue pressure for purchasing the Specific Drug in question.
Similarly, there was no allegation that the drug(s) in question are
of substandard quality or non-standard quality. Rather, the drugs
in question are of Standard Quality and produce a comparatively
better result, as per research studies conducted. Moreover,
prescribing any Chemo Drug or medicine to any patient is the
sole prerogative of the treating physician and depends on the
expertise of the treating doctor. Similarly, in the matter of
Cancer treatment, the patients have right to choose their line of
treatment and Drugs as per the standard protocol, on the basis of
counseling from the available different alternative Line of
treatment /drugs. It is the ethical, moral and legal obligation of
the treating doctor to prescribe best medicines to the patients as
there is a thin gap between their life and death.
49. Furthermore, it is needless to mention that there should
not be any discrimination amongst the patients in the matter of
Page 44 of 51
treatment on the ground of rich and poor. It is also the
Constitutional Obligation of the State to provide the best
Medicine and treatment to the patients. So far as prescription of
any particular drug is concerned, for prescribing any particular
drug of any pharmaceutical company for treatment of a disease,
a doctor should not be held criminally liable, unless the said
drug(s) is/are hazardous or non-standard, of sub-standard quality
or band, or have been restricted by the appropriate authority of
the Govt. For that reason, if the Pharma Company is benefitted,
the same cannot be treated as an undue favour or loss to the
government ex-chequer. More specifically, when patients have
paid for the said drug(s) from their own pocket. Similarly, the
government cannot compel any patient to consume a particular
drug, which might be less efficacious, purely because the said
medicine/drugs were procured by the government, or because the
said drugs are cheaper.
50. The fundamental allegation against the present
petitioners is that the fake manufacturing addresses have been
affixed to the said Chemo Injection/Drug. For that, the
culpability would be attributed to the Proprietor/ dealer of the
JBSL Pharmaceuticals i.e. the manufacturer of the drugs in
Page 45 of 51
question. The petitioners or any treating doctors cannot be held
criminally liable for the same.
51. In similar parlance, a doctor cannot be made to face
criminal Prosecution if he/she has any acquaintance with any
Pharma Company or if the doctor has engaged him/herself in
consultancy agreement with the said Pharma Company as an
advisor. Likewise no culpability or malafide can be attributed to
the said doctor for attending any seminar or conference, as a
speaker or advisor, conducted by any Pharma Company, merely
because the said doctor has prescribed the drugs of that Pharma
Company. Otherwise, each and every doctor would have to face
criminal prosecution. If proceedings of the present nature are
encouraged, then no doctor would be able to treat any patient
fairly and by keeping the ultimate benefit of the patient in view.
Moreover, the MCI guideline and government regulation permit
the doctors to attend seminars and conferences. It also envisaged
that the doctor, who is attending any such seminar and/or
conference, as a Speaker or Advisor, is entitled towards
hospitalities, transportation and other accommodations. As such,
the petitioners cannot be made criminally liable on the ground
that they have shown any undue favour to a particular company,
Page 46 of 51
particularly in the absence of any specific evidence to
substantiate such allegation.
52. As far as the quantum of disproportionate assets
allegedly accumulated by the Petitioners is concerned, it can be
seen that in the reply/objection filed by the Opposite Party-
Vigilance Department, it has been stated that disproportionate
assets is to the tune of Rs.1,60,39,404/-. Furthermore, on perusal
of additional Objection Affidavit filed by the Opposite Party
Vigilance Department, it can be ascertained that the Petitioners
had earlier, on 03.02.2024, submitted a representation whereby
the Petitioners have contradicted the assessment of
disproportionate assets made by the Prosecution in the F.I.R. The
aforesaid representation of the Petitioners was received by the
prosecution on 05.02.2024. The Opposite Party-Vigilance
Department have straightway controverted the claims of the
Petitieoners made in their representation dated 03.02.2024 on the
ground that the Petitioners have not provided any corroborative
documents in support of their contentions. It is also the claim of
the Opposite Party-Vigilance Department that they have issued
repeated notices (on 09.02.2024 and later on 15.02.2024) under
section 91 of Cr.P.C to produce the relevant
Page 47 of 51
documents/registers/audited balance sheets etc. in support of
their contention.
53. Moreover, as is evident from the aforesaid Additional
Objection Affidavit filed by the Opposite Party-Vigilance
Department, the amount of disproportionate assets attributable to
the Petitioners stands at “approximately Rs.2,52,32,145/-“. The
said amount appears to be different from the amount of
disproportionate asset mentioned in the F.I.R (i.e.
Rs.2,95,02,699/-) and the amount stated by the Opposite Party-
Vigilance Department in the reply/objection (i.e.
Rs.1,60,39,404/- at paragraph 6). That said, it is also observed
that the Opposite Party-Vigilance Department have admitted, in
their Additional Objection Affidavit, that the actual DA amount
has not yet been determined by them. Nevertheless, it appears
that no definite quantum of disproportionate amount has been
arrived at by the Opposite Party Vigilance Department as of yet.
As such, a case of accumulation of disproportionate assets
cannot be sustained on mere conjectures and surmises especially
when there are no other compelling grounds to sustain the same.
Page 48 of 51
54. Furthermore, a Criminal Case cannot be lodged against
a Doctor merely because he/she has prescribed costlier drugs or
chemo injections, which are not only beneficial but also produce
a better result than the other competing drugs available.
Moreover, in the instant case, other doctors of that Institution/
Department had also prescribed the similar drugs/ chemo
injection to their patients availing benefits under the OSTF
Scheme and they have not been arrayed as accused in the present
case. Similarly, the Screening Committee have sanctioned the
OST Fund in favour of the empanelled shop without any
objection. The empanelled shops, who have obtained the said
money in the form of the OST Fund, have not been made an
accused in the present case. In fact, the Pharma Companies, who
have allegedly been shown undue favour by the Petitioners, have
also not been made accused in the present case. In the aforesaid
factual background this Court has no hesitation to draw an
inference that the Petitioners have been singled out and
victimized by implicating them with a malafide intention. As
such, the same is hit by the principles laid down in Bhanjanlal’s
case (supra).
Page 49 of 51
55. In view of the foregoing reasons, the very initiation of
instant criminal proceedings, without conducting a preliminary
inquiry by any expert of the concerned field, as observed above,
is ex-facie illegal. Moreover, no prima facie case of the alleged
offences is made out from the uncontroverted allegations
narrated in the FIR against the petitioner. Furthermore, the
arbitrariness, discrimination, malafides and blatant illegalities on
the part of the prosecution are apparent on the face of the record
in the present Case. It is fit case, which is squarely covered under
the parameters of the ratio laid down in the case of State of
Haryana vs. Bhajanlal, reported in AIR (1992) SC 604. Hence,
allowing any further continuance of the present criminal
prosecution would be most definitely amount to an abuse of the
process of law. Accordingly, while exercising the inherent
jurisdiction under section 482 of the Cr.P.C, and in the larger
interests of justice, this Court is inclined to quash the Criminal
Proceedings vide Vigilance Cell PS Case No. 89 dated
15.09.2016 corresponding to V.G.R. Case No. 86 of 2016
pending in the file of Ld. Special Judge (Vigilance), Cuttack and
Vigilance Cell PS Case No. 87 dated 27.08.2016 corresponding
to V.G.R. Case No. 82 of 2016, pending in the file of Ld. Special
Page 50 of 51
Judge (Vigilance), Cuttack, so far as the present petitioners are
concerned. Therefore, the same is hereby quashed.
56. The CRLMC applications are allowed accordingly.
(A.K. Mohapatra)
Judge
Orissa High Court, Cuttack
The 16th April, 2025/ Anil/ Jr. Steno
Signature Not Verified
Digitally Signed
Signed by: ANIL KUMAR SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa
Date: 24-Apr-2025 16:53:07
Page 51 of 51