The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK ABLAPL Nos.14436 & 14643 of 2022 Rishi Kumar Kyal @ Rishi Kyal …. Petitioner Mr. Pratik Dash, Advocate -versus- State of Odisha …. Opp. Party Mr. Debasis Biswal, ASC CORAM: JUSTICE CHITTARANJAN DASH Order No. ORDER 08.12.2022 02. 1. Heard learned counsel for the Petitioner and the State. 2. By means of these applications, the Petitioner seeks grant of bail under Section 438, Cr.P.C. in anticipation of arrest for his alleged involvement in the offence U/s.420/336/483/486/34 IPC in connection with Purighat P.S. Case No.222 of 2022 corresponding to G.R. Case No.1169 of 2022 pending in the Court of learned S.D.J.M.(Sadar), Cuttack.
Legal Reasoning
counsel for the State prima facie discloses from the statement of the witnesses that the Petitioner company had resorted to the purchase the questioned medicines not having the proper logo and QR code could have been discarded or brought to the notice of the competent authority and having not done so it is suggestive of the fact that the Petitioner company is squarely responsible for the sale of the spurious medicines and no leniency can be shown to him in the grant of pre arrest bail. 6. Keeping in view the submission made by the learned counsel for the parties admittedly the Petitioner is engaged in the business of wholesale medicines. He purchased the medicines from the stockiest within and outside the State. As far as the present case is concerned, the material discloses that the Petitioner purchased “TELMA AM” and “TELMA 40” from M/s. V.R. Agencies, Manikghosh Bazar, Cuttack a declared stockiest in respect to the Page 3 of 6 // 4 // said medicines. It is also an admitted fact that M/s. Glenmark Pharmaceuticals Ltd. is the manufacturer of the said “TELMA AM” and “TELMA 40” medicines as supplied to the State of Orissa through the stockiest M/s. V.R. Agencies and others. 7. Needless to say that every manufacturer has its own logo and mark of identity for its products to avoid duplicity of trade mark and competition in the market. The Petitioner as the medicine wholesaler/stockiestship is absolutely aware of this fact and has been dealing with the medicines only on the basis of such identity while purchasing the medicines from the stockiest/C&F Agent. Consequently, absence of a logo and the QR code as is ordinarily affixed to the stripes in medicine by the manufacturer could possibly give rise to a doubt as to the genuineness of the medicines and the Petitioner could not have been ignorant of these facts while purchasing the same from the stockiest whereas having purchased the same he also distributed it to the retail counters being alive of the fact that once it reaches the retail counter the medicine the medicine goes to the patients directly. 8. Therefore, the submission of the learned counsel for the Petitioner that as wholesaler the Petitioner has no role or scope to know the genuinity of the medicines but to trade the same between the stockiest and the retailer is an attempt to shriek the responsibility towards the public and the society as well. 9. It is stated that “preventive maintenance” is always better than a “break down maintenance”. It is by way of a preventive maintenance that the authorities of the Government could bring into fore the activities of the mischief mongers in time so that it could Page 4 of 6 // 5 // save the lives of many. Had it been consumed great would have been the loss that would have gone to the public at large. Therefore, the detection of the spurious medicines at its threshold could save the lives of many. It is in that view of the matter that the persons involved in the chain of the business of sale and purchase of spurious medicines cannot be taken to excuse simply on the plea that they had no scope and were ignorant of the genuineness of the medicines save and except it could have been ascertained at the point of manufacturing. 10. The submissions of the learned counsel for the Petitioner drawing the attention of this Court to different provisions of the Drugs and Cosmetic Act, in the facts and circumstances of the present application has no relevance inasmuch as the cause of action in the present case is on the basis of an FIR lodged by the Drugs Inspector and the investigation has been undertaken by the police. 11. The decision of the Apex Court cited by the learned counsel in the matter of Union of India v. Ashok Kumar Sharma passed in Criminal Appeal No.200 of 2020 referring to the specific paragraphs primarily relates to the matter of the jurisdiction of the Drugs Inspector as to his power of arrest. Consequently, while there is nothing to quarrel with the principles enunciated therein the same cannot be made applicable to the advantage of the Petitioner in facts and circumstances of the present case. 12. Drugs should always be purchased from the genuine and reputable sources and persons dealing with drugs should always be on his guard not to add or abate directly or indirectly the Page 5 of 6 // 6 // manufacturer, possession, distribution and sale of spurious or substandard drugs. The endeavour should be that the marketing and pharmaceutical industries are always be in ethical marketing thereby not loosing any trust among the patients. 13. As far as the grant of bail to the stockiest Mr. Rahul Kumar Kyal is concerned, it does not impel the mind of this Court to accept it as parity inasmuch as it was against a regular bail that this Court granted the liberty. As far as the present Petitioner is concerned, he prays for pre arrest bail.
Arguments
3. It is submitted by the learned counsel for the Petitioner that he is one of the directors in the company named M/s.Kyal Agencies Pvt. Ltd. located at Bhubaneswar. Further one of the other directors named Shiv Kumar Kyal has been apprehended by the police in another case registered as P.S. Case No.222 of 2022. He further submitted that the Petitioner has a valid drugs licence and deals with distribution of drugs in the market purchasing from the dealers/manufacturers. According to the learned counsel, pursuant // 2 // to the FIR lodged by the Drugs Inspector, Odisha, Cuttack-1 Range before the Purighat Police Station dated 9th September, 2022, he along with the District Drugs Control Officials made seizure of TELMA AM, B. No.18220083, M/D-02/2022, E/D-01/2025 claimed to be manufactured by M/s. Glenmark Pharmaceuticals Ltd. from the custody of Rahul Kyal of M/s. V.R. Drug Agencies and found the same to be spurious drugs. According to learned counsel, the Petitioner is no way connected in the alleged offence in any manner whatsoever inasmuch as the Petitioner’s company purchased the major portion of the alleged misbranded drugs from the manufacturer named M/s. Glenmark Pharmaceuticals Ltd. itself being registered dealer of the said manufacturer and had no knowledge about the said drugs being misbranded or adulterated. The learned counsel drew the attention of this Court to various provisions of the Drugs and Cosmetics Act besides the decision of the Apex Court in the matter of Union of India v. Ashok Kumar Sharma passed in Criminal Appeal No.200 of 2020. 4. Learned counsel for the State, on the other hand, vehemently opposed the contentions raised by the Petitioner and submitted that the Petitioner had sufficient knowledge not only by virtue of his experience in business but also as a drug licensee to ensure that the drugs purchased by him from the wholesale medicines/stockiestship is the genuine one. According to him the questioned medicines “TELMA AM” and “TELMA 40” is a product manufactured by M/s. Glenmark Pharmaceuticals having its particular logo and QR code. According to the learned State counsel the spurious medicines and the documents were seized from the possession of the Petitioner wherein there is absence of this particular identity that could easily Page 2 of 6 // 3 // make out to the Petitioner as wholesaler to raise question to the stockiest as regards the genuinity of the medicines. Further, the Petitioner has purchased the medicines from the stockiest outside the State. Even though the Petitioner being a wholesaler is not prevented by any rule to purchase the medicine from the stockiest outside the State but then the fact as to the margin received against the purchase of said medicines from the original manufacturer i.e. M/s. Glenmark Pharmaceuticals Ltd. and that of the one purchased from the stockiest outside the State or even from M/s. V.R. Agencies speaks volume as the involvement of the present Petitioner in the chain of business of these spurious medicines. 5. The case records produced before the Court by the learned
Decision
14. In view of the above discussions, the nature of allegations, the circumstances appearing, the seriousness and gravity of the offences, this Court is not inclined to grant anticipatory bail to the Petitioner. The prayer for bail stands rejected. Both the ABLAPLs are accordingly dismissed. Judge (Chittaranjan Dash) KC Bisoi/Secretary Page 6 of 6