Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 2002/2017
th
Order reserved on: 25 October, 2017
th
Order pronounced on: 30 October, 2017
KRISHAN MURARI MEHRA ….Petitioner
Through: Mr. Mohit Chaudhary, Mr. Kunal,
Mr.Saurabh Nangia, Advocates.
Versus
STATE …..Respondent
Through: Mr. Mukesh Kumar, APP for the State
with SI Harendra Singh, P.S. Kotwali,
Delhi.
CORAM:
HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
1. By way of the present petition filed under Section 438 of the Code
of Criminal Procedure (hereinafter referred “Cr.PC.” ), the
petitioner seeks grant of Anticipatory Bail in FIR No. 239/2017
under Sections 18/27 Drugs and Cosmetics Act registered at Police
Station Kotwali, New Delhi. Status report is on record.
2. The brief facts of the case are that complainant Vishal Sachan of
the Drugs Control Department F-17, Karkadooma Delhi on 07-09-
2017 along with other witnesses inspected the premises of a small
protein supplement shop “M/s Ashish Medicos", situated at Shop
No. 1704 G. F, Bhagirath Palace, Chandni Chowk, Delhi in the
presence of the petitioner who was stated to be the Proprietor-cum-
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Person Incharge and responsible for the conduct of day to day
business of the firm at the aforesaid premises. The petitioner had
Food License 13315001000387 on Form “C” issued by
Department of Food Safety, A-20, Lawrence Road Ind. Area, New
Delhi. However, the petitioner held stocks for sale and distribution
of various allopathic drugs without holding a requisite drug license
as required by the Drugs and Cosmetics Act, 1940 and Rules made
thereunder. The Drug Inspector seized and took into his possession
all the 11 unlicensed items of drugs stocked for sale and
distribution from the sale premises. Subsequently, on the complaint
of the Drug Inspector Vishal Sachan the said case was registered
and investigation was taken up.
3. Mr. Mohit Chaudhary, the learned counsel for the petitioner
contended that towards the end of July, 2017 somebody
representing himself to be a Medical Representative dealing in
building supplements left a packet of tablets used by body builders
at the shop of the petitioner as a trial for the customers of the
petitioner. Though the petitioner was not interested in them he
could not say no and 11 items including tablets were left in a
packet in the shop. However, they were neither displayed nor
advertised or offered for sale by the petitioner. The petitioner is 68
years of age, has clear antecedents and is willing to remain co-
operative. Thus, it is prayed that the petitioner be granted
anticipatory bail.
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4. Per Contra, Mr. Mukesh Kumar, APP for the State vehemently
contended that the petitioner is not liable to be granted anticipatory
bail as he has been involved in the commission of a serious offence
which is cognizable and non-bailable. He further stated that the
accused may evade the process of law, threaten the complainant
and may also tamper with the evidences being collected during
investigation. It is, therefore, prayed that the bail of the applicant
should be dismissed.
5. I have heard the learned counsel for the parties at length and
perused the material on record.
6. Section 18(a) in the Drugs and Cosmetics Act, 1940 talks about
the Prohibition of manufacture and sale of certain drugs and
cosmetics and states that :-
“From such date as may be fixed by the State
Government by notification in the Official Gazette
in this behalf, no person shall himself or by any
other person on his behalf—(a) manufacture for
sale or for distribution, or sell, or stock or exhibit
or offer for sale, or distribute— [(i) any drug
which is not of a standard quality, or is
misbranded, adulterated or spurious; (ii) any
cosmetic which is not of a standard quality, or is
misbranded, adulterated or spurious; (iii) any
patent or proprietary medicine, unless there is
displayed in the prescribed manner on the label or
container thereof [the true formula or list of active
ingredients contained in it together with the
quantities, thereof]; (iv) any drug which by means
of any statement design or device accompanying it
or by any other means, purports or claims any
such disease or ailment, or to have any such other
effect as may be prescribed; (v) any cosmetic
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containing any ingredient which may render it
unsafe or harmful for use under the directions
indicated or recommended; (vi) any drug or
cosmetic in contravention of any of the provisions
of this Chapter or any rule made thereunder.”
7. Further, Section 28 of Drugs and Cosmetics Act, 1940 lays down
the Penalty for non-disclosure of the name of the manufacturer and
states that :-
“Whoever contravenes the provisions of section
18A shall be punishable with imprisonment for a
term which may extend to one year, or [with fine
which shall not be less than twenty thousand
rupees or with both.]” .
8. Section 18(c) of Drugs and Cosmetics Act, 1940 states that the
“Manufacture for sale or for distribution, or sell,
or stock or exhibit or offer for sale, or distribute
any drug [or cosmetic], except under, and in
accordance with the conditions of, a license issued
for such purpose under this Chapter: Provided
that nothing in this section shall apply to the
manufacture, subject to prescribed conditions, of
small quantities of any drug for the purpose of
examination, test or analysis: Provided further
that the [Central Government] may, after
consultation with the Board, by notification in the
Official Gazette, permit, subject to any conditions
specified in the notification, the [manufacture for
sale or for distribution, sale, stocking or exhibiting
or offering for sale] or distribution of any drug or
class of drugs not being of standard quality.”
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9. Further Section 27(b)(ii) of Drugs and Cosmetics Act, 1940, states
that :-
“Without a valid licence as required under clause
(c) of section 18, shall be punishable with
imprisonment for a term which shall 5 [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:]”
10. It has been revealed from the investigation that in the store of the
petitioner 11 items of drugs were found which the petitioner did
not have any license for and these were subsequently seized by the
complainant. Further, although the petitioner had protection from
being arrested and was asked to join the investigation, he did not
provide any details of source of supply of the said drugs. Off late,
adverse health events resulting from Dietary Supplement Fraud
(DSF) conducted for economic gain using dietary supplements
have received increased recognition from agencies and industry as
it is becoming a very common problem. There is a growing
awareness that this issue represents a significant public health
threat. With increasing consumption of supplements especially
amongst the youth, there are increasing consequences wherein
children taking adulterated dietary supplements contaminated with
heavy metals can experience severe health effects. Misbranded
dietary supplements have presented public health risks to
consumers that were at least equal to, if not worse, than adulterated
dietary supplements. The investigation is still in its embryonic
stage, and thus the chance of the petitioner escaping the procedure
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of law, tampering with the evidence or influencing the complainant
and witnesses exists.
11. Reference may be made to the judgement of the Apex Court in
Bhadresh Bipinbhai Sheth v. State Of Gujrat reported in
(2016) 1 SCC wherein the principles for grant or refusal of
anticipatory bail have been laid down, which are reproduced here
as under:-
"(x) We shall also reproduce para 112 of the
judgment wherein the Court delineated the
following factors and parameters that need to be
taken into consideration while dealing with
anticipatory bail:
(a) The nature and gravity of the accusation and
the exact role of the accused must be properly
comprehended before arrest is made;
(b) The antecedents of the applicant including the
fact as to whether the accused has previously
undergone imprisonment on conviction by a court
in respect of any cognizable offence;
(c) The possibility of the applicant to flee from
justice;
(d) The possibility of the accused's likelihood to
repeat similar or other offences;
(e) Where the accusations have been made only
with the object of injuring or humiliating the
applicant by arresting him or her;
(f) Impact of grant of anticipatory bail particularly
in cases of large magnitude affecting a very large
number of people;
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(g) The courts must evaluate the entire available
material against the accused very carefully. The
court must also clearly comprehend the exact role
of the accused in the case. The cases in which the
accused is implicated with the help of and 149 of
the Penal Code, 1860 the court should consider
with even greater care and caution, because over
implication in the cases is a matter of common
knowledge and concern;
(h) While considering the prayer for grant of
anticipatory bail, a balance has to be struck
between two factors, namely, no prejudice should
be caused to free, fair and full investigation, and
there should be prevention of harassment,
humiliation and unjustified detention of the
accused;
(i) The Court should consider reasonable
apprehension of tampering of the witness or
apprehension of threat to the complainant;
(j) Frivolity in prosecution should always be
considered and it is only the element of
genuineness that shall have to be considered in the
matter of grant of bail and in the event of there
being some doubt as to the genuineness of the
prosecution, in the normal course of events, the
accused in entitled to an order of bail.’’
12. Keeping in view the principles laid down by the Apex Court, the
aforementioned Sections, facts and circumstances of the present
case, the allegations against the petitioner are grave in nature, this
Court does not deem it fit to grant discretionary relief of
anticipatory bail to the petitioner. Accordingly, the petition for
anticipatory bail stands dismissed.
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13. Before parting with above order, it is made clear that anything
observed in the present petition shall not have any bearing on the
merits of the case during trial.
SANGITA DHINGRA SEHGAL, J.
OCTOBER 30, 2017
gr//
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