drugs

Case BriefsSupreme Court

Supreme Court: In a case relating to a drug racket spread across three States namely, U.P., Punjab and Rajasthan, the 3-Judge Bench of N. V. Ramana, CJ., and Krishna Murari, Hima Kohli*, JJ., reversed the impugned order of Delhi High Court releasing the respondent-accused on post-arrest bail.  

Although the Court reiterated that a confessional statement made under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is inadmissible, it found other materials against the respondent, sufficient to indicate his involvement in the alleged crime.   

Background  

The instant appeal had been filed by the Narcotics Control Bureau (NCE) to assail the impugned order of the Delhi High Court granting post-arrest bail to the respondent. The respondent is facing trial for the offences under Sections 8/22 and 29 of the NDPS Act. 

The NCB had recovered a parcel containing 50,000 Tramadol tablets weighing 20 kgs on the basis of secret information stating that one Gaurav Kumar Aggarwal in Agra had booked a parcel suspected to contain NRX tablets to be delivered to one Manoj Kumar (respondent herein) at Ludhiana, Punjab. The accused, Gaurav Kumar Aggarwal revealed that the recovered drug was booked by the respondent from one Promod Jaipuria, a resident of Jaipur.  

To unveil the whole racket, NCB conducted a raid at the godown of Promod Jaipuria during which a cache of drugs covered under the NDPS Act, was recovered, which included 6,64,940 tablets of different psychotropic substances including Tramadol, Zolpidem, and Alprazolam tablets/capsules weighing around 328.82 Kgs, 1400 Pazinc Injections amounting to 1.4 ltrs and 80 Corex Syrup bottles weighing 8 ltrs. Another 9,900 tablets weighing 990 gms. were recovered during the search conducted by the NCB officials at the premises of the co-accused, Manoj Kumar at Ludhiana. 

Noticeably, the respondent had approached the Special Judge, NDPS twice with his application for bail, and both the applications were dismissed by the Special Judge. However, in a petition filed under Section 439 CrPC, 1973, the High Court allowed the respondent’s bail application.  

Contentions of the Parties  

NCB argued that the High Court had completely overlooked the fact that it was on the basis of the disclosures made by the respondent himself that huge quantities of narcotic drugs and injections were seized from the godown of the co-accused, Promod Jaipuria who was subsequently arrested by the Department; therefore, the High Court had committed a grave error by not applying the terms and conditions imposed under Section 37 of the NDPS Act.  

On the contrary, the respondent submitted that the consignment in question was neither booked by him nor for him and that he had no connection with the other co-accused persons. Further, no recovery was made from him and nothing was found in the search conducted at his residence and shop.  

Provisions for Bail under NDPS Act  

The Court observed that not only are the limitations imposed under Section 439 CrPC to be kept in mind while considering a bail application under NDPS Act but also the restrictions placed under Section 37 (1) (b) of NDPS Act to be factored in. Section 37 (1) (b) of NDPS Act states:  

“(i) the Public Prosecutor ought to be given an opportunity to oppose the application moved by an accused person for release; and 

(ii) if such an application is opposed, then the Court must be satisfied that there are reasonable grounds for believing that the person accused is not guilty of such an offence.  

Additionally, the Court must be satisfied that the accused person is unlikely to commit any offence while on bail.”  

Relying on Collector of Customs v. Ahmadalieva Nodira, (2004) 3 SCC 549, and State of Kerala v. Rajesh, (2020) 12 SCC 122, the Court stated that the expression “reasonable grounds” in Section 37 (1) (b) would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence.  

The Court clarified that the entire exercise that a court is expected to undertake at the stage of bail under Section 37 of NDPS Act is to see the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and that he is unlikely to commit an offence under the Act while on bail. 

Admissibility of Confessional Statements made under S. 67 NDPS Act 

The Court opined that the High Court could not be faulted for holding that NCB could not have relied on the confessional statements of the respondent and the other co-accused recorded under Section 67 of the NDPS Act in the light of law laid down in Tofan Singh v. State of T.N., (2013) 16 SCC 31, wherein a confessional statement recorded under Section 67 of the NDPS Act has been held to be inadmissible in the trial of an offence under the NDPS Act.  

Therefore, the Court held that the admissions made by the respondent while in custody to the effect that he had illegally traded in narcotic drugs, would have to be kept aside.  

Findings and Conclusion  

Considering the other materials submitted by NCB to contest the bail of the respondent, the Court noted the following:  

  1. It was the disclosures made by the respondent that had led NCB to arrive at and raid the godown of the co-accused, Promod Jaipuria which resulted in the recovery of a large haul of different psychotropic substances in the form of tablets, injections and syrups.  
  2. It was the respondent who had disclosed the address and location of the co-accused, Promod Jaipuria who was arrested later on.  
  3. The CDR details of the mobile phones of all co-accused including the respondent showed that they were in touch with each other.  

Hence, the Court opined that even dehors the confessional statement of the respondent and the other co-accused recorded under Section 67 of the NDPS Act, the other circumstantial evidence brought on record by the appellant-NCB ought to have dissuaded the High Court from exercising its discretion in favour of the respondent and concluding that there were reasonable grounds to justify that he was not guilty of such an offence under the NDPS Act. 

Calling the observation made in the impugned order that since nothing was found in the possession of the respondent, he is not guilty of the offence he had been charged with a premature assumption, the Court stated that the narrow parameters of bail available under Section 37 of the Act has not been satisfied in the instant case. Further, the Court stated, 

“The length of the period of his custody or the fact that the charge-sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act.”  

In the backdrop of above, the Court set aside the impugned order releasing the respondent on post-arrest bail. The bail bonds were declared cancelled and the respondent was directed to be taken in custody forthwith. 

[Narcotics Control Bureau v. Mohit Aggarwal, 2022 SCC OnLine SC 891, decided on 19-07-2022] 

*Judgment by: Justice Hima Kohli 

Appearance by:  

For NCB: Jayant K. Sud, Additional Solicitor General 

For the Respondent: P.K. Jain, Advocate-on-Record 

Kamini Sharma, Editorial Assistant has put this report together 

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: While granting bail to the applicant herein, under Section 439 of the Criminal Procedure Code (CrPC) for a case registered under Narcotic Drugs and Psychotropic Substances Act, 1985, Ajit Borthakur, J. held that the provisions of Section 37 of the NDPS Act shall not be applicable if the service courier driver is unaware of what is being transported by him.

Background of the case

The applicant was employed as a truck driver by VRS Logistics Ltd, the largest fleet owner of commercial vehicles in India. As per the applicant’s duty sheet and roaster plan assigned by his employer , he was assigned to drive the truck from the transshipment point of the company at Gorchuk in Guwahati to Agartala. The goods loaded in the truck consisted of a consignment of 10 cartons of mouth wash which was for a medical agency at Varanasi.

During a police interception at Churaibari Watch Post, National Highway 08, 13 cartons of 4000 Escuf Syrup bottles and 10 boxes of Phensedyl containing 3000 bottles of Phensedyl Cough Syrup were recovered from the consignment trucks driven by the applicant and his co-accused.

Therefore, the applicant and the co-accused were accused of offences under Sections 22(c), 25, and 29 of the NDPS Act.

Submissions before the court

The applicant submitted that he was merely discharging his duty and had no knowledge about the transportation of 10 cartons containing 3000 bottles of codeine phosphate-based Escuf Cough Syrup along with other shipment items. Further, it was submitted that the seized cough syrup contained 6,00000/- mg. or 0.6 k.g or 600 gms. of codeine phosphate, which was less than the commercial quantity and therefore, the rigors of Section 37(1) of the NDPS Act are not applicable.

The respondent submitted that 13 cartons of 4000 Escuf Syrup bottles and 10 boxes of Phensedyl containing 3000 bottles of Phensedyl Cough Syrup were recovered from the trucks driven by the applicant and the co-accused. Therefore, the seizure of codeine phosphate-based cough syrup in total amounts to a commercial quantity under the NDPS Act. Hence, the respondents submitted that without the completion of the investigation, the prayer for bail should not be considered.

Analysis and Decision

Firstly, the Court noted that the applicant is the driver of a truck of VRL Logistics and he had to deliver the consignments of various goods loaded by the said company to the consignee. Secondly, after a thorough investigation, the investigating officer noted that the seized cartons bore the seal and pack of VRL Logistic Company, which were loaded for transportation on the truck driven by the applicant for delivery.

Therefore, the Court concluded that the allegation of the investigating officer that narcotic suppliers/peddlers misused the ‘vehicles of VRL Logistics to fulfill their malicious intent’, which was just carried by the applicant is subject to final outcome of the investigation. Hence, the Court granted bail to the applicant, holding that the knowledge and intention play a significant role in determining the liability of an accused. Since the facts of the case could not establish the knowledge regarding the substance delivered by the applicant , the the Court held that the rigor of Section 37 of the NDPS Act was not attracted.

[Lorik Ram v. State of Assam, 2022 SCC OnLine Gau 975, decided on 27-05-2022]

Advocates who appeared in this case :

Mr. S Mitra, Advocate, for the Applicant;

R J Baruah, Public Prosecutor, for the Respondent.

Case BriefsHigh Courts

Gauhati High Court: A bail application under Section 438 of the Criminal Procedure Code, 1973, (CrPC) was denied by Sanjay Kumar Medhi, J. to a petitioner for a case registered under Sections 21(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and it was held that recovery or seizure of contraband is not a sine qua non for arrest, detention or conviction under the NDPS Act if there are other convincing and corroborating materials.

Background of the case

A Truck was intercepted near Jorabat and consequently in the search, 44,160 bottles of Eskuf cough syrup in 276 cartons were recovered without any documents. The psychotropic substance seized was sold by the agency run by the petitioner to a distributor of Karimganj district. An FIR against the petitioner was registered.

The petitioners contended that though the articles are psychotropic substance it would come under the exception of Section 8 (c) of the NDPS Act and transportation of the same with necessary documents is available under proviso to Rule 67(4) of the NDPS Rules and subsequent generation of bills can at best be violation of the GST Act and cannot be violation of the NDPS Act

The State contended that the very initiation of movement of the consignment involving a huge number of bottles in cartons which admittedly is a psychotropic substance under the NDPS Act, as the cough syrup contains a substance called ‘codeine’, amounted to an offence under the NDPS Act. There were anomalies / illegalities at different stages, including GST invoices. It was further submitted that offences under the NDPS Act, are part of organized crime wherein different roles are played by different accused.

Analysis and decision

The Court affirming the contention raised by the State, noted that, “offences under the NDPS Act are part of an organized crime wherein different roles are played by different accused persons.” Further, while determining the offence under the Act various factors are to be taken into consideration like the quantity of the contraband, nature of the substance, nature of involvement etc.

While mere recovery and seizure of psychotropic substance cannot be a ground of arrest or detention of the accused, until and unless, there is substantive evidence to prove the conviction, in the case at hand, the offence involved in this case is one under the NDPS Act and the quantity involved was a commercial quantity of chemical manufacture drugs.

Considering the law, coupled with the facts of the case, the Court observed that for purposes of bail under Section 37 of the NDPS Act, the petitioner should have satisfied the Court that he is not guilty of the offence, and he is not likely to commit this offence further. The same was not established by the petitioner. The Court noted that, since the very object of the NDPS Act is to curb the menace of drugs and its ill effects on the society which has the propensity to destroy the generation as a whole; therefore, the court, in view of the facts and contentions presented before it, rejected the petitioner’s plea for anticipatory bail.

[Amal Das v. State of Assam, 2022 SCC OnLine Gau 764, decided on 06-05-2022]

Advocates who appeared in this case :

AM Bora, Advocate, for the Petitioner;

PP, Assam.

Case BriefsHigh Courts

Meghalaya High Court: The Division Bench of Sanjib Banerjee, CJ. and W. Diengdoh, J. disposed of a PIL which was filed highlighting an important matter of public interest.

It was believed that there may be concerted moves by inimical interests to push drugs and psychotropic substances in the North- East, particularly in and around Shillong which attracts tourists and a lot of the younger crowd. The Court was satisfied that with the assistance of learned Amicus Curiae and the several meetings conducted with State and private officials at various levels, including the welcome participation of the defence personnel, the need to be on the guard may have been realised by the State administration.

The Court noted that steps have been taken to ensure that the drug menace does not set deep roots in the State or around the city. Both the police and the civil administration have indicated several checks and guards having been put in place and constant monitoring. Even the Army, Air Force and the paramilitary forces which are present in the State have participated in the meetings and have introduced measures to augment the civilian government’s efforts in such regard.

The Court however added one additional point for the State to set up adequate number of rehabilitation centres with appropriate facilities.[M. Kharkongor v. State of Meghalaya, 2022 SCC OnLine Megh 211, decided on 26-05-2022]

For the Petitioner: Mr S.P. Mahanta, Amicus Curiae with Mr M. Lyngdoh

For the Respondent: Mr S. Sengupta, Addl. Sr.GA with Ms S. Laloo, GA, Dr. N. Mozika, ASG with Ms K. Gurung

Suchita Shukla, Editorial Assistant has reported this brief.

Canada SC
Case BriefsForeign Courts

Supreme Court of Canada: The instant matter revolved around a challenge to the constitutionality of Section 33.1 of the Criminal Code which dealt with the unavailability of self-induced intoxication as a defence for criminal acts like assault etc. The bench of the Court comprising of Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ., in an unanimous decision, held that, Sec. 33.1 violates S. 7 of the Canadian Charter of Rights and Freedoms by allowing a conviction without proof of mens rea or proof of voluntariness. It was observed that, “Section 33.1(1) of the Criminal Code eliminates the defence of self-induced intoxication akin to automatism applied to violent offences… Section 33.1 does not create a new predicate act offence of self-induced extreme intoxication or a new criminal negligence offence. The accused faces the full stigma of conviction and the full brunt of punishment for the general intent offence.”

Facts of the Case: The appellant [hereinafter ‘B’], at a house party, had consumed ‘magic mushrooms’ which is a hallucinogen. The consumption of the drug led to ‘B’ losing his grip over reality. As per ‘B’, he was not simply drunk or high: while capable of physical movement, he was in a psychotic state and had no willed control over his actions.

He broke into the nearby house of a stranger and attacked the occupant, causing permanent injuries. He further broke into another residence and the occupants called the police. Consequently, ‘B’ was charged with break and enter and aggravated assault, and mischief to property.

Contentions: The appellant contended that he is not guilty of the offences by reason of automatism. The appellant’s contentions were corroborated by the expert witnesses who confirmed that ‘B’ had no voluntary control over his conduct at the time.

The respondent (the Crown) invoked S. 33.1 of the Criminal Code preventing ‘B’ from relying on self-induced intoxication akin to automatism as a defence to the charge of aggravated assault. The respondents stated that the Canadian Parliament added S. 33.1 in response this Court’s ruling in Henri Daviault v. Her Majesty the Queen, 1994 SCC OnLine Can SC 83, wherein the majority had confirmed a common law rule that intoxication is not a defence to crimes of general intent.

The respondents, however, prayed to the Court to interpret S. 33.1 as validly imposing liability for violent crimes based on a standard of criminal negligence

Observations: Perusing the facts and contentions of the case, Justice Kasirer (who delivered the unanimous decision) observed that the impugned provision does not establish a proper measure of criminal fault by reason of intoxication; instead, it imposes liability for the violent offence if an accused interferes with the bodily integrity of another “while” in a state of self-induced intoxication rendering them incapable of consciously controlling their behaviour.

Given the gravity of the issue, the Court some salient observations –

  • It was held that the provision is violative Canadian Charter of Rights and Freedoms because an accused person under the impugned provision is not being held to account for their conduct undertaken as free agents, instead, the accused is called to answer for the general intent crime that they cannot voluntarily or wilfully commit. “To deprive a person of their liberty for that involuntary conduct committed in a state akin to automatism — conduct that cannot be criminal — violates the principles of fundamental justice in a system of criminal justice based on personal responsibility for one’s actions. On its face, not only does the text of S. 33.1 fail to provide a constitutionally compliant fault for the underlying offence set out in its third paragraph, it creates what amounts to a crime of absolute liability.”
  • The Court observed that the impugned provision also transgresses the right to be presumed innocent until proven guilty guaranteed by S. 11(d) of the Charter. To convict the accused, the Crown must prove all the essential elements of an offence beyond reasonable doubt.
  • The Court noted that the rights of victims of intoxicated violence, in particular the rights of women and children, should be considered at the justification stage under S. 1 of the Charter rather than informing the analysis of a possible breach of the accused’s rights under S. 7. “Balancing competing Charter rights under the breach analysis should occur where the rights of the accused and another party conflict and are directly implicated by state action. The equality, dignity and security interests of vulnerable groups informed the overarching public policy goals of Parliament but they are best considered under S. 1”.

Along with the aforementioned observations, the Court pointed out that the Parliament has before itself a strong record that highlights the strong correlation between alcohol and drug use and violent offences, in particular against women. The issues regarding ensuring the equality, dignity, and security rights of all victims of intoxicated violence must be looked upon thoroughly by the Parliament, therefore it is all the more necessary that the Crown must show on a balance of probabilities that the limits of Ss. 7 and 11(d) of the Charter brought by S. 33.1 are reasonable and demonstrably justified under S. 1 of the Charter. “Given the patent risk that S. 33.1 may result in the conviction of an accused person who had no reason to believe that their voluntary intoxication would lead to a violent consequence, S. 33.1 fails at the proportionality step and thus cannot be saved under S. 1”.

[R. v. Brown, 2022 SCC 18, decided on 13.05.2022]

Sucheta Sarkar, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Meghalaya High Court: The Division Bench of Sanjib Banerjee, CJ. and W. Diengdoh, J. took up a PIL suggesting surprise checks on Army vehicles after allegations of drug transit through them were reported.

Amicus Curiae had forwarded details of certain places where the drug menace was prevalent which included several localities in Shillong and its neighbourhoods and it appeared that the list was illustrative rather than exhaustive since it did not refer to several other parts of the State. He further drew the attention of the Court towards the fact that since Meghalaya falls within the transit route of drugs emanating from a neighbouring country or going to such neighbouring country, there is a modus operandi which is being followed and, quite alarmingly, recently an Army Major from Imphal had been implicated in facilitating the transit of drugs.

It was also a matter of concern that drugs were sometimes transported in army trucks, which are generally immune from checking.

The Court of the opinion that if what was stated was true there must also be intelligence reports received by the State in such regard and the Chief Secretary should coordinate with, inter alia, the Army and Assam Rifles, both to make the highest officials aware of the problem and for immediate action being taken. The Court suggested that it may also do well for teams of flying army checkers to be deployed along the route to make surprise checks on Army vehicles which were otherwise not subjected to checks by civilian personnel.

The Court also emphasized the need for therapy centres to be set up within the State as many families affected have to look beyond the State where wards are sent in the absence of adequate facilities being available in Meghalaya, despite the urgent need therefor. There may also be a need for de-addiction centres, particularly to house young female offenders.[M. Kharkongor v. State of Meghalaya, PIL No. 13 of 2018, decided on 30-03-2022]

For the Petitioner: Mr SP Mahanta, Amicus Curiae with Mr M. Lyngdoh

For the Respondent: Mr A. Kumar, AG with Ms S. Laloo

Suchita Shukla, Editorial Assistant has reported this brief.

Experts CornerMurali Neelakantan

A previous post[1] discussed the difficulties in criminal prosecution of trade mark infringement in cases involving medicines. It seemed from that discussion that the justice system deterred trade mark owners from being able to successfully prosecute for offences under the Trade Marks Act. That post also contained a few suggestions to reform the law and practice of drug labelling.

 

If the Trade Marks Act is not effective in prosecutions for infringement, is there a remedy elsewhere to prevent fraudsters gambling with peoples’ lives? In a recent discussion with senior police officers, the answer proffered was that there was a better remedy in the Drugs and Cosmetics Act. However, the police officers seemed unaware of these provisions.

 

In the recent case involving the cancer drug, Adcetra, manufactured by Takeda, the police registered an FIR citing the provisions of Sections 420, 336, 483, 486 and 34 IPC, and provisions of the Trade Marks Act and the Copyright Act, but not the Drugs and Cosmetics Act (Drugs Act),[2] and seized counterfeit drugs from a dealer in Mumbai. The only explanation that can be offered for this is the lack of awareness of the provisions of the Drugs and Cosmetics Act among the police and the pharma industry.

 

Here are the various provisions of the Drugs and Cosmetics Act, 1940 that could have been applied to that case and included in the FIR:

Section 17(c) – a drug shall be deemed to be misbranded if its label or container or anything accompanying the drug bears any statement, design or device which makes any false claim for the drug or which is false or misleading in any particular.

Section 17-B – a drug shall be deemed to be spurious if,–

(a) it is manufactured under a name which belongs to another drug; or

(b) 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) 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) it has been substituted wholly or in part by another drug or substance; or

(e) it purports to be the product of a manufacturer of whom it is not truly a product.

Section 18. Prohibition of manufacture and sale of certain drugs and cosmetics.— 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 misbranded, adulterated or spurious.

Would the procedure and the outcome be different if these provisions were used to prosecute the dealer of counterfeit drugs?

 

To begin with, the FIR would have disclosed a more serious offence than just trade mark infringement or fraud under the IPC. The punishment for the offence of dealing in spurious drugs is seven years to life imprisonment[3] and this would make the offence cognizable and non-bailable. It is also likely that the court would be reluctant to grant bail to the accused given the seriousness of the offence and the likely harm caused to public if the accused was allowed to be free on bail.

 

Mens rea of the accused in trade mark infringement and IPC cases would be a burden on the prosecution and that is perhaps one of the reasons for low rates of conviction and the rare case of imprisonment in such cases. However, there is no need to prove mens rea in cases like this thanks to Section 19 of the Drugs Act which states unequivocally that “it shall be no defence in a prosecution under this chapter to prove merely that the accused was ignorant of the nature, substance or quality of the drug in respect of which the offence has been committed or of the circumstances of its manufacture or import”. Therefore all that the prosecution has to state in the charge-sheet is that the dealer did not have a licence for the import and sale of that counterfeit drug and had not acquired it from a licensed distributor. It would then fall on the accused to show that he was duly licensed and had imported the drug in accordance with such licence or that the drug was purchased from a licensed distributor.

 

It should now be evident that the procedure for trial under the Drugs Act is simple, almost a summary trial given how little has to be proved by the prosecution and the limited defences available to the accused. It is a mystery why pharma companies, the State drug regulator and the police are not using the stringent provisions of the Drugs Act more effectively to enforce the law and save lives. Is it because the courts have not been keen to impose the punishment of seven years to life imprisonment[4]? Are the cases of violation of the Drugs Act that have been brought before the courts merely “technical violations” and not the kind that occurs in the case of Adcetra?

† Murali Neelakantan is currently Principal lawyer at Amicus. He is a dual qualified lawyer (India and UK) and among other positions, he was formerly a partner at an international law firm in London, Cipla’s first global general counsel, and Executive Director and Global General Counsel of Glenmark Pharmaceuticals.

[1] Criminal Trade Mark Infringement for Medicines – An Ineffective Remedy. See Here

[2]Mumbai : Women Arrested for selling fake medicines to cancer patients, See HERE .

[3] Drugs and Cosmetics Act, 1940, S. 27.

[4] A search on SCC Online shows that in all the cases before the Supreme Court where punishment under S. 27 was in issue, the punishment was usually a small fine and occasionally simple imprisonment for a few months. There were no cases where imprisonment of more than a year was imposed.

Case BriefsHigh Courts

It is the oft-repeated and a salutary principle of law that fraud and justice never dwell together (fraus et jus nunquam cohabitant)

Orissa High Court: Sashikant Mishra J. allowed the interim application (I.A.) and granted the relief sought and thereby cancelled the bail bonds executed erroneously.

The criminal petition i.e. CRLMC was filed by the petitioners under Section 482 Criminal Procedure Code i.e. Cr.P.C. to challenge the orders dated 06-09-2020/08-09-2020, 02-03-2021 and 03-05-2021 passed by the  Sessions Judge-cum-Special Judge, Malkangiri. The present application was filed by the State seeking recall of order dated 18-11-2021 passed in the above CRLMC mainly on the ground that such order was obtained by the accused petitioners by misleading the Court.

Counsel for petitioners submitted that the petition (I.A.) is not maintainable in law for the reason that as per Section 362 of Cr.P.C., the Court has no power to recall its own order after the same has been pronounced as it would amount to sitting in appeal over its own order.

Coounsel for respondents submitted that the averments contained in the CRLMC petition are product of misrepresentation of facts, inasmuch as, it is stated that the accused persons were arrested on 06-09-2020 but were produced on 08-09-2020 and accordingly, 180 days period was due to expire on 03-03-2021. Mr. Mishra further submitted that the petition for extension of time was filed and allowed before expiry of the 180 day period and charge sheet was also submitted before expiry of the extended period and therefore, no indefeasible right whatsoever accrued in favour of the petitioners for being released on default bail. But by completely misrepresenting such facts they have obtained the order, which is nothing but a fraud played on the Court and therefore, the order should be recalled.

Section 362 of Cr.P.C., which reads as under:

“362. Court not to alter judgement. Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.”

 

The Court relied on judgment R. Rajeshwari v. H.N. Jagdish, (2008) 4 SCC 82 wherein it was held that although a specific bar has been created in regard to exercise of the jurisdiction of the High Court to review its own order and ordinarily, exercise of jurisdiction under Section 482 of the Code of Criminal Procedure would be unwarranted but in some rare cases, the High Court may do so where a judgment has been obtained from it by practicing fraud on it.

The Court observed that even otherwise Section 362 of the Code places a bar on the Court to ‘alter’ or ‘review’ its order or judgment. Once the judgment is pronounced and signed the Court becomes functus officio and therefore, no further alteration or review of the same is permissible save and except to correct clerical or arithmetical errors.

The Court stated that the bar under Section 362 of Cr.P.C. is not absolute and in any case, does not apply in case of recall of the order. There is no dispute that the inherent power of the High Court under Section 482 to give effect to any order under the Code, to prevent abuse of the process of Court or to secure the ends of justice. In case any of the three conditions exist, the High Court would be justified in exercising its jurisdiction.

The Court further observed that the impugned order was passed on erroneous premises as charge sheet was submitted two days after expiry of the extended period and since, the accused persons had not been produced nor their right to be released on default bail informed to them, the CRLMC was allowed by holding that they were entitled to be released on bail.

The court after perusing facts, calculating dates, analysing case laws observed that Court is unable to persuade itself to believe that it was a bonafide error on the part of the accused persons to miscalculate the date, rather, having regard to all the facts and circumstances noted hereinabove, it becomes more than evident that they had done so deliberately in order to obtain a favourable order. This is nothing but playing fraud on the Court. It goes without saying that but for such deliberate mis-presentation this Court would not have passed the order in question.

The Court stated that an order obtained by fraud cannot be allowed to subsist as it would amount to perpetrating a gross illegality. Even otherwise, the High Court, as a Court of record, has inherent power to correct the record. It, as a Court of record, has a duty to keep its records correctly and in accordance with law. In case any apparent error is noticed by the High Court or brought to its notice in respect of any orders passed by it, the High Court has not only the power but a duty to correct it. This is a plenary power of the High Court being a superior Court and a Court of record.

The Court made it amply clear that in the instant case, the order in question was passed exercising power under Section 482 of the Code which is indisputably, a plenary power. Therefore, once it comes to light that the party concerned was not entitled to the order passed in its favor, which is nothing but an abuse of the process of Court, it would be perfectly legal as also justified in invoking the very same power under Section 482 of the Code so as to prevent such abuse and to secure the ends of justice. True, such power has to be exercised sparingly but if the circumstances so warrant, the Court is expected to rise to the occasion to set right the wrong.

The Court thus held “it becomes evident that the accused petitioners were not entitled to default bail but had obtained such order by deliberately misrepresenting facts before this Court. As such, the order in question cannot be allowed to subsist and deserves to be set aside.”

Concluding Remark:

 IO being a responsible police officer in charge of investigating an offence as heinous as one under the NDPS Act carrying stringent punishment, is not expected to show such irresponsible conduct in calculating the time-period for completion of investigation while making prayer for extension of such time. There is no gainsaying about the ill-effect of such callousness and irresponsible conduct. The case at hand is a case in point. This Court therefore hopes and trusts that the higher police authorities shall take note of this lapse and issue necessary instructions to be followed by the IOs, particularly in NDPS cases [Saba Bisoi v. State of Odisha, 2022 SCC OnLine Ori 948, decided on 15-03-2022]

Appearances

For Petitioners : M/s. Jugal Kishore Panda, S.S. Dash, B. Karna & A.P. Dash

For Opp. Parties : Mr. S.K. Mishra

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., remarked that,

“…achievement of universal equality before the law requires the tenets of personal liberty to be applicable to all similarly circumstanced individuals and must not be restricted unless according to procedure established by law.”

A petition under Section 439 of Criminal Procedure Code, 1973 sought interim bail in an FIR registered under Sections 468, 471, 201 of the Penal Code, 1860 (IPC) and Sections 20, 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS).

Background

One Danveer was involved in an illegal interstate supply of drugs to foreigners in various states in India for the purpose of rave parties. Hence raid was conducted. Charas/hasish of total weight 2.210 kgs was found.

In view of the above, the petitioner was arrested, and first bail application was moved by the petitioner before the trial court and the same was dismissed, later the second application was also dismissed. Further, even the third bail application was dismissed.

Petitioner approached this Court by way of interim petition for interim bail. This Court had converted the instant interim bail application into one for regular bail.

Analysis, Law and Decision

High Court referred to the Supreme Court decision in Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731, wherein the petition had been instituted with the aim to ensure that undertrial prisoners who had been languishing in jail for an extended period of time were granted bail despite the stringency of the provisions for bail under the NDPS Act. The underlying reason for the same was to uphold the right to personal liberty and the right to speedy trial of an undertrial under Article 21 of the Constitution of India.

In view of the above Supreme Court decision, it was categorically noted that,

“…where an undertrial accused has been charged with offence(s) under the NDPS Act which is punishable with minimum imprisonment of ten years and a minimum fine of rupees one lakh, then such an undertrial is to be released if he has been in jail for not less than five years.”

Further, the Bench expressed that,

“It is unconscionable to state that the rights guaranteed under Article 21 can be subjected to such arbitrary categorisation and would not apply across the board to all undertrials in NDPS cases who are at the receiving end of inordinate delay in trial.”

High Court opined that the petitioner was entitled to release on account of inordinate delay in trial and prolonged judicial custody.

“Right to speedy trial is an intrinsic part of Article 21 of the Constitution of India.”

Further, the High Court added that the Courts must remain cognizant of the deleterious impact of drugs on society, it is also important to keep in mind that deprivation of personal liberty without the assurance of speedy trial contravenes the principles enshrined in our Constitution.

The Bench found the present case fit for granting bail, subject to the following conditions:

a)  The Petitioner shall furnish a personal bond in the sum of Rs 1,00,000 with two sureties of the like amount, one of them should be the relative of the Petitioner, to the satisfaction of the Trial Court;

b)  The Petitioner is directed to deposit his passport with the Trial Court.

c)  The Petitioner is directed to reside in Delhi till further orders and the address shall be verified by the learned Trial Court at the time of acceptance of bail bonds.

d)  The Petitioner shall report to the concerned Police Station twice in a week, that is, on every Wednesday and Friday at 10:30 AM, and the Police is directed to release him by 11:00 AM after recording his presence and completion of all the necessary formalities;

e)  The Petitioner shall not leave NCT of Delhi without the prior permission of the trial Court;

f)  The Petitioner is directed to give all his mobile numbers to the Investigating Officer and keep them operational at all times;

g)  The petitioner shall not, directly or indirectly, tamper with evidence or try to influence the witnesses in any manner;

h)  In case it is established that the petitioner has indulged in similar kind of offences or tried to tamper with the evidence, the bail granted to the petitioner shall stand cancelled forthwith.

In view of the above observations, the application was disposed of. [Anil Kumar v. State, 2022 SCC OnLine Del 778, decided on 21-3-2022]

Advocates before the Court:

For the Petitioner:

Mr. Rajinder Singh and Mr. Piyush Gupta, Ms. Himanshi Batheja, Advocates.

For the Respondent:

Mr. Amit Chadha, APP for the State with SI Thakur Singh, PS Special Cell

Experts CornerMurali Neelakantan

There has been little research on why convictions for trade mark infringement are not common when there are a large number of civil infringement cases. Our particular interest is in cases of drugs and medicines, which is the class where it seems the most number of trade marks are registered every year[1].

 

Is it because the process of FIR, investigation and prosecution is cumbersome, or because the justice ecosystem does not consider this as a priority and trade mark owners do not feel that the time, effort and money invested in seeking conviction is worth it? Is there an alternative and more effective system for preventing trade mark infringement and enforcement against truant entities which misbrand drugs to unfairly benefit from well-known and market leading brands?

 

The process of prosecution for criminal infringement of trade marks begins with the complaint to the police who will register an FIR citing various provisions of the Penal Code, 1860, Copyright Act, 1957 and the Trade Marks Act, 1999, if the complaint has the facts making out the offence[2]. If the complainant has done enough investigation and has invoices for the infringing products, the police may decide to arrest the accused persons since the offence is cognizable and non-bailable. The arrest may happen during or after a “raid” to seize the goods that are allegedly infringing the complainant’s trade mark[3]. However, before the police can do this, a report from the Registrar of Trade Marks opining that the alleged infringement has occurred is necessary[4]. This could take weeks to obtain during which time, the infringing goods may no longer be in the place where the complainant claims. It will require enormous resources to be able to maintain surveillance of the facilities, products and people involved in the illegal operation. Does the police force have such resources to devote to this? Does the police force have the expertise to deal with this crime? Even once the report of the Registrar is obtained and the opinion there is that the goods are infringing, that opinion itself is open to challenge. Given the lack of clarity from the courts on what the test for infringement is and the decisions in various cases, it is almost impossible to be sure if the opinion of the Registrar is correct.

 

In a recent poll of senior police officers who were asked to opine if the following trade marks were infringing and caused confusion, the majority got it “wrong” i.e. their decision was the opposite of what the High Courts or Supreme Court held in that case.

 

The brand names, Vihagra[5], V-GRA[6], Filagra and Vilagra[7] are confusingly similar to Viagra but Penegra[8] is not and Kavagra is easily confused with Kamagra even though all these brands are for a Schedule H drug which can only be purchased with a doctor’s prescription[9].

 

Despite Section 13 of the Trade Marks Act which prohibits the appropriation of chemical names as trade marks, it is common practice to name a drug by the name of the organ (“Liv” for the liver, for example) or the ailment which it treats or the main ingredient of the drug. Such an organ, ailment or ingredient being publici juris or generic cannot be owned by anyone for use as trade mark.[10]

 

As a result of the Trade Marks Registry allowing brand names using the primary chemical compound, organ or ailment to be registered there is a proliferation of similar and often confusing trade marks for a drug. A recent example is of the drug, Molnupiravir, a pill to treat COVID. Applying the test of a common man, would not these marks be confusing even for doctors who shorten the medicine to “molnu”?

 

 

Brand Name 

 Pharma Company
Cipmolnu Cipla Ltd.
Molnunat Natco Pharma Ltd.
Molflu Dr Reddy’s Laboratories Ltd.
Molxvir Sun Pharmaceutical Industries Ltd.
Molnumize & Molnutor Torrent Pharmaceuticals Ltd.
Molulife Mankind Pharma
Lizuvira Zuventus Healthcare Ltd.

This is not a new or “one-off” incident. The brands, “Trivedon” and “Flavedon” were said to be dissimilar[11]. This followed a case where “Mexate” and “Zexate” were also found to be dissimilar[12] even though the brand names were rhyming words. The Delhi High Court[13] held that the two marks  derived prefix “Mero” from the drug “Meropenem” and there was no similarity between “Meromer” and “Meronem”. This principle was consistently followed in Schering Corpn. v.  Alkem Laboratories Ltd.[14], where it was held that there was no similarity between “Temodal” and “Temodar” since the prefix derived from the name of the chemical compound Temozolomide to arrive at “Temodal” and “Temodar” on the one hand and “Temoget” and “Temokem” on the other. The leading case on this subject is Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd.[15] which is routinely cited by subsequent decisions. In that case, the petitioner manufactured the drug branded as “Falcigo” for the treatment of cerebral malaria, commonly referred to as “Falciparum” and registered the name “Falcigo” in 1996. The respondent also was engaged in manufacturing a drug named “Falcitab”, and got it registered in 1997, also for the treatment of “Falciparum” malaria. This is an interesting case of registered trade marks for the same drug causing infringement, a sharp comment on India’s Trade Marks Registry and the drug regulator.

 

However, in Ranbaxy Laboratories Ltd. v. V. Anand Prasad[16] the appellant was the registered proprietor of the mark “Fortwin” (Pentazocine injection) and had been using the mark since 1975, relating to pharmaceutical preparation for treatment of some bone-related disorder. The respondent applied for the registration of mark “Ostwin” (Diacerein tablet), again for the same treatment of bones, which was opposed to by the appellants as being deceptively similar to their mark. IPAB held that, “though prefix of both the marks are different i.e. ‘Fort’ (appellant) and ‘Ost’ (respondent), they do have a common suffix i.e. ‘Win’ and since the rival goods are also pharmaceutical goods, serious consequences might follow due to deception and confusion in the minds of the general public”.

 

From these examples, it seems that the test that the courts have laid down does not seem to work for medicines:

“The question of infringement must be approached from the viewpoint of a common man with average intelligence, and imperfect memory, for whom the overall structure and phonetic similarity in the names is likely to deceive and cause confusion. The common man will not go for splitting the names and analyse their individual meaning before purchasing, but would rather depend upon his memory, or what he has learnt from someone about the product.”[17]

In the Indian context, is it sufficient to now use this simplistic test which perhaps works well for soap, toothpaste and perhaps even “over-the-counter” drugs for prescription drugs?

 

Since the origin of purchasing a medicine is often a doctor’s prescription, should not the test be whether a doctor will confuse the names of the brands and whether that confusion will hurt the patient? From the polls and cases it is clear that there is no risk to the patient if there is “confusion” so long as both brands are for the same drug[18]. It is to mitigate against the risk of patient harm that it is a mandatory requirement that doctors write the chemical name of the drug in the prescriptions. This will also ensure that there is very little chance of a mistake by the pharmacist dispensing the wrong drug or being confused by similar brand names.

 

Should the test for infringement be whether the brand names confuse both the pharmacist and the doctor resulting in the patient taking the wrong drug? That is only likely to happen if there are confusingly similar brand names for different drugs as was the case in Fortwin and Ostawin[19] or Terbinafine which is an antifungal compound and Terfenadine, an antihistamine drug. Another set of drugs which could lead to confusion is the brand, Olvance for the antihypertensive  drug, Olmesartan and Oleanz, a brand of the antipsychotic drug, Olanzapine. This is a dangerous situation that has existed in India for some time and needs to be addressed immediately.

 

One should ask if the issues set out above are unique to India. In the developed world, brand names are entirely disconnected with the chemical name. For example, the brand name for Molnupiravir is Lagevrio. Similarly for sildenafil citrate it is Viagra. That is the global standard recommended by the WHO and although India attempts to implement it in Section 13 of the Trade Marks Act, we have seen that in actual practice, thanks to the connivance of the Trade Marks Registry, the drug regulator and the courts, the confusion seems intentional, at the cost of patients.

 

Given that there is so much uncertainty in the law, it will be a challenge for the prosecution to be able to establish beyond reasonable doubt that the accused intended to infringe a registered trade mark of the complainant. Would not it be a defence for the accused that the drug regulator approved the label containing the brand name thereby confirming that it was not causing confusion for patients and the medical community[20]? Seizing the “infringing” drugs and all the equipment used to produce it may indeed cause a greater harm of denying patients access to the medicines they need. Finally, even if convicted, it is unlikely that the accused person will undergo any serious punishment – a small fine or a few months of imprisonment at worst. Perhaps all the stakeholders in the justice system have come to the conclusion that this is not just worth it. Is that the reason for the number of cases where imprisonment results for trade mark infringements in India?

 

How do we fix this problem that is entirely of our own making?

  1. Enforce the mandatory requirement for doctors to clearly write the name of the drug in the prescriptions. This should eliminate the risk of the wrong drug being administered.
  2. When the drug regulator approves the labels under Rule 96 of the Drugs Rules, 1945 it should check its own database for similar brand names and ensure that it does not approve any confusingly similar names.
  3. Enforce Section 13 of the Trade Marks Act so that no trade marks containing chemical names are registered.
  4. Use Section 27 of the Drugs and Cosmetics Act, 1940, rather than the Trade Marks Act to prosecute for misbranding drugs.

 

† Murali Neelakantan is currently Principal lawyer at Amicus. He is a dual qualified lawyer (India and UK) and among other positions, he was formerly a partner at an international law firm in London, Cipla’s first global general counsel, and Executive Director and Global General Counsel of Glenmark Pharmaceuticals.

[1] “Filing for marks relating to the health sector attracted the largest proportion of applications filed in India (23.7%)” WIPO, World IP Indicators, 2021. P83- HERE .

[2] For a recent case, see <HERE >.

[3] Trade Marks Act, 1999, S. 115.

[4] See Trade Marks Act, proviso to S. 115: Provided that the police officer, before making any search and seizure, shall obtain the opinion of the Registrar on facts involved in the offence relating to trade mark and shall abide by the opinion so obtained.

[5] Pfizer Products Inc. v. R.K. Singh, 2014 SCC OnLine Del 2623.

[6] Pfizer Products Inc. v. G.S. Pharmaceuticals (P) Ltd., 2013 SCC OnLine Del 6430.

[7] Pfizer Products Inc. v. Mittal Nathalal Patel, 2014 SCC OnLine Del 1584.

[8] Pfizer Products Inc. v. B.L. & Co., 2002 SCC OnLine Del 396.

[9] Pfizer Products Inc. v. Mittal Nathalal Patel, 2014 SCC OnLine Del 1584.

[10] Astrazeneca UK  Ltd. v. Orchid Chemicals & Pharmaceuticals Ltd., 2006 SCC OnLine Del 1668 which was later affirmed by the Division Bench in Astrazeneca UK  Ltd. v. Orchid Chemicals & Pharmaceuticals Ltd., 2007 SCC OnLine Del 237.

[11] Biofarma v. Sanjay Medical Store, 1997 SCC OnLine Del 359.

[12] Cadila Laboratories Ltd. v. Dabur India Ltd., 1997 SCC OnLine Del 360.

[13] Astrazeneca UK  Ltd. v. Orchid Chemicals & Pharmaceuticals Ltd., 2006 SCC OnLine Del 1668 which was later affirmed by the Division Bench in Astrazeneca UK  Ltd. v. Orchid Chemicals & Pharmaceuticals Ltd., 2007 SCC OnLine Del 237.

[14] 2008 SCC OnLine Del 760 which was affirmed by the Division Bench of the Delhi High Court in Schering Corpn. v. Alkem Laboratories Ltd., 2009 SCC OnLine Del 3886.

[15] (2001) 5 SCC 73.

[16] 2004 SCC OnLine IPAB 65.

[17] Amritdhara Pharmacy v. Satya Deo Gupta, AIR 1963 SC 449.

[18] See, Macleods Pharmaceuticals Ltd. v. Swisskem Healthcare, 2019 SCC OnLine Bom 1186.

[19] Ranbaxy Laboratories Ltd. v. V. Anand Prasad, 2004 SCC OnLine IPAB 65.

[20] See, M.L. Khanna v. State of Uttarakhand, 2012 SCC OnLine Utt 2489 where the court missed an opportunity to answer this question.

Case BriefsHigh Courts

Delhi High Court: Chandra Dhari Singh, J., granted bail to an accused on being satisfied with “reasonable grounds” as per Section 37 (b)(ii) of the NDPS Act, 1985.

An application under Section 439 of the Code of Criminal Procedure, 1973 for seeking bail in FIR under Sections 22 of the Narcotics, Drugs and Psychotropic Substances Act, 1985.

Factual Matrix

ASI Pawan Kumar received information that a person from Rohini Delhi was involved in sale and supply of Ecstasy (a party drug) in Delhi-NCR and would come near an apartment to deliver the same to someone else. On receiving the said information, the raid was conducted.

On conducting a formal search in light of provisions of NDPS Act, 100 Pills of Ecstasy were recovered and the same was seized. Hence, the FIR under Sections 22/29 of the NDPS Act was registered and further investigation of the case was carried out.

Accused disclosed that he had received the above-mentioned contraband from the applicant and later the applicant was apprehended and on recovering 20 grams of 3,4-Methylenedioxymethamphetamine (MDMA) from his possession, he was arrested.

In view of the above, charges were framed for the commission of offences under Sections 22 and 29 of the NDPS Act.

Analysis, Law and Decision

In view of the gravity of the consequences of drug trafficking, the offences under the NDPS Act have been made cognizable and non-bailable, High Court expressed while referring to Section 37 of the NDPS Act.

Section 37 NDPS Act does not allow granting bail for offences punishable under Section 19 or Section 24 or Section 27A and for offences involving commercial quantity unless the two-fold conditions prescribed under the Section have been met.

Before granting bail, the Court must be satisfied with the scheme of Section 439 CrPC.

The Court under Section 37(b)(ii) of the NDPS Act is not required to be merely satisfied about the dual conditions i.e., prima facie opinion of the innocence of the accused and that the accused will not commit a similar offence while on bail, but the court must have “reasonable grounds‟ for such satisfaction.

Elaborating further on the term “reasonable grounds”, Court expressed that, the said term is not capable of any rigid definition nor of being put into any straight-jacket formula, but its meaning and scope will be determined based on the surrounding facts and circumstances of each case. Thus, what may be reasonable in one set of facts may not be reasonable in another set of facts.

High Court noted that the main accused was charged with the possession of a larger quantity of contraband and on the basis of whose statement the applicant was arraigned and raised has already been released on bail. Hence the applicant’s application merited indulgence of this Court on the ground of parity.

“Reasonable Grounds” in the present matter were found by the Court.

The applicant had been incarcerated for more than 4 years as an undertrial, whereas on date, two of the witnesses have been examined and the trial remains pending.

On observing the above, Court expressed that,

Speedy Justice is a Fundamental Right enshrined under the ambit of Article 21 of the Constitution of India, and the same needs to be given effect by this Court in letter and in spirit, else it will remain as a dead letter of law. 

Supreme Court’s decision in Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225 was cited wherein detailed guidelines were laid down with respect to speedy trial. The said guidelines were also upheld by a 7- Judge Bench of the Supreme Court in P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578.

Conclusion

Applicant was in jail for more than 4 years and out of 14 witnesses only 2 were examined to date and no possibility of trial to be concluded in the near future

Hence, the applicant cannot be incarcerated for an indefinite period and the Court must step in to ensure speedy justice to the applicant.

In view of the above discussion, the applicant was granted bail and the Court laid down emphasis on parity and clean antecedents of the applicant.

The applicant was directed to furnish a personal bond of Rs 50,000, with two sureties of like amount and bail conditions, were laid down.

While allowing the application, Court directed Trial Court to conclude the trial expeditiously. [Mahesh v. State (GNCTD), 2022 SCC OnLine Del 394, decided on 8-2-2022]

Advocates before the Court:

For the Petitioner:

Mr. Akshay Bhandari and

Mr. Digvijay Singh, Advocates

For the Respondent:

Kusum Dhalla, APP for the State

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: In a case exposing callous attitude of authorities while dealing with drug menace in the State of Punjab, Meenakshi I. Mehta, J., observed that in some paras of the Statu sreports/Reply, the police officers concerned had mentioned the tablets, allegedly recovered as ‘CLAVIDOL-100 SR’ whereas in certain other paras the same had been described as ‘CLOVIDOL-100 SR’. Criticizing the lackadaisical attitude of officers, the Bench remarked,

“…the said discrepancy reflects nothing else but their callously casual approach towards their official duty which is least expected from them because they are duty bound to check the crime graph in the State specially in the circumstances when the drug menace has become deep rooted and is taking its toll like a slow poison for the young generation upon which every nation pins hopes for a bright and secure future.”

Factual Background

On receipt of secret information three persons were arrested under Sections 22, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. It was on their discloser statement that the contraband was supplied to them by the petitioner 1-Sandeep Kumar, the petitioner 1 was apprehended and 1500 Clovidol 100-SR tablets, packed in 150 strips and 600 white colour loose intoxicant tablets were recovered at his instance. On his disclosure statement the petitioner 2, Amit Sharma was also nabbed and 300 white colour loose intoxicant tablets recovered from him.

Urging for bail the petitioners contended that the sample of ‘CLAVIDOL 100-SR’ tablets, allegedly recovered from them was found to be containing ‘Pregabalin’ and the sample of the loose intoxicant tablets, contained ‘Tramadol Hydrochloride’ and the average weight of those loose tablets was reported to be 403.48 mg. The petitioners submitted the salt ‘Pregabalin’, as reportedly found in said 1500 ‘CLAVIDOL-100 SR’ tablets, does not fall within the purview of the Act and the total weight of the said 600 loose tablets, comes out to be 242.088 gms which was less than the commercial quantity of the said salt (Tramadol Hydrochloride), i.e 250 gms.

Observations and Order

Noticeably, the Trial Court had framed the charge against petitioners under Section 22 of the Act only for their having been found in possession of 600 and 300 loose tablets, containing ‘Tramadol Hydrochloride’, respectively, while specifically mentioning therein that 1500 tablets containing Pregabalin, as recovered from accused-petitioner Sandeep, do not fall within the purview of the Act and the petitioners have not been charge-sheeted under Section 29 of the Act meaning thereby that the Investigating Agency, in its own wisdom and also for the reasons best known to it, had not presented the Challan against both the petitioners under the said provision, i.e Section 29 of the Act.

Therefore, keeping in view the factum of the petitioners having been charge-sheeted under separate heads for the recovery of the said contraband and the period of their incarceration, the Bench granted bail to both the petitioners and ordered that the petitioners be released on regular bail.

Callous Conduct of Authorities

Further, noticing that the Assistant Commissioner Drugs, Food & Drug Administration had issued a letter to M/s Yorks Pharma for cancelling the permission to manufacture the formulations containing ‘Tramadol Hydrochloride’ salt including ‘CLAVIDOL 100-SR’ tablets, on account of the alleged contravention of the Drugs and Cosmetics Act, 1940 and Rules 1945, while further directing it to stop the manufacturing of all the drug formulations containing the said salt and observing that as per FSL reports, the ‘CLAVIDOL-100 SR’ tablets, i.e the tablets with the same brand name, contain ‘Pregabalin’, the Bench ordered that Department is supposed to check and supervise the manufacturing of the drugs in the State so as to ensure the strict compliance of the relevant law/Rules. The Bench remarked,

“Subsequent use of the same brand name, i.e ‘CLAVIDOL-100 SR’ by the above-said manufacturer for manufacturing the tablets containing a different salt is likely to lead to grave consequences as the same can result in serious health hazards for the patients as well as the public at large.”

However, on being reprimanded by the Court the authorities concerned had issued another letter to the afore-named manufacturer qua the cancellation of the permission granted to it for manufacturing the drug formulations containing ‘Pregabalin’.

Criticizing the conduct of on the part of the Authorities, the Bench stated,

“It is highly deplorable and it speaks volumes of their questionable acts and omissions which pose a serious challenge for the State in tackling with the drug menace which seems to be touching new heights with every passing day.”

[Sandeep Kumar v. State of Punjab, 2022 SCC OnLine P&H 325, decided on 27-01-2022]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For Petitioner 1: Keshavam Chaudhari, Advocate

For Petitioner 2: Parminder Singh Sekhon, Advocate,

For the State: Samina Dhir, DAG

Case BriefsSupreme Court

Supreme Court: In a case where a Pakistan national was convicted under the NDPS Act by two Courts in two different trials and it was argued that the sentences should run concurrently, the bench of MR Shah* and BV Nagarathna, JJ has held that the offences under the NDPS Act are very serious in nature and against the society at large, hence, no discretion under Section 427 CrPC shall be exercised in favour of such accused who is indulging into the offence under the NDPS .

Factual background

In the case that dates back to 1999, the appellant – accused was convicted by two different courts in two different trials for the offences with respect to the different transactions.

  1. Amritsar Court: Sentenced to undergo 12 years RI for the offence under Section 23 and Section 21 of the NDPS Act by Amritsar Court for having in possession of 4 kg of heroin.
  2. Delhi Court: Sentenced to undergo 15 years RI for the offence under Section 29 read with Section 21(c) of the NDPS for having 750 grams of heroin.

The judgments in both the cases were delivered one after another and in the subsequent judgment by the Delhi court there is no specific order passed stating that the sentences have to run concurrently.

It was argued that the conduct of the appellant, who was 30 years of age when he was convicted and presently, he is 52 years old, in jail is good and there is no adverse remark made against him by the Jail Superintendent. Hence, the two sentences which the appellant is now undergoing, may be held to run concurrently under Section 427 Cr.P.C.

Analysis

Section 427 of Cr.PC – Explained

Under Section 427 of Cr.PC, when a person who is already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been   previously sentenced.  Meaning thereby the sentences in both the conviction shall run consecutively.

However, there is an exception to that, namely unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence.

Further, as per Sub-section (2) of Section 427 of Cr.PC, when a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence. Therefore, in aforesaid two cases only the subsequent sentence shall run concurrently with previous sentence. Otherwise the subsequent sentence shall run consecutively and the imprisonment in subsequent sentence shall commence at the expiration of the imprisonment to which he has been previously sentenced.

Principles laid down in a series of Supreme Court Rulings

(i) If a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such subsequent term of imprisonment would normally commence at the expiration of the imprisonment to which he was previously sentenced;

(ii) ordinarily the subsequent sentence would commence at the expiration of the first term of imprisonment unless the court directs the subsequent sentence to run concurrently with the previous sentence;

(iii) the general rule is that where there are different transactions, different crime numbers and cases have been decided by the different judgments, concurrent sentence cannot be awarded under Section 427 of Cr.PC;

(iv) under Section 427 (1) of Cr.PC the court has the power and discretion to issue a direction that all the   subsequent sentences run concurrently with the previous sentence, however discretion has to be exercised judiciously depending upon the nature of the offence or the offences committed and the facts in situation. However, there must be a specific direction or order by the court that the subsequent sentence to run concurrently with the previous sentence.

Discretion under Section 427 CrPC

Even otherwise as observed hereinabove under Section 427 (1) of Cr.PC, the Court has the power and discretion to issue a direction that the subsequent sentence to run concurrently with the previous sentence in that case also, the discretion has to be exercised judiciously depending upon the nature of offence or the offences committed.

“No leniency should be shown to an accused who is found to be guilty for the offence under the NDPS Act. Those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to a number of innocent young victims who are vulnerable. Such accused causes deleterious effects and deadly impact on the society. They are hazard to the society. Such organized activities of clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have a deadly impact on the society as a whole.”

Therefore, it was noticed that while awarding the sentence or punishment in case of NDPS Act, the interest of the society as a whole is required to be taken into consideration and even while applying discretion under Section 427 of Cr.PC, the discretion shall not be in favour of the accused who is found to be indulging in illegal trafficking in the narcotic drugs and psychotropic substances.

Hence, even while exercising discretion under Section 427 of Cr.PC to run subsequent sentence concurrently with the previous sentence, the discretion is to be exercised judiciously and depending upon the offence/offences committed.

Ruling on facts

The Court outrightly rejected the submission of the appellant – accused that his subsequent sentence to run concurrently with the previous sentence as,

  • the appellant has been convicted with respect to two different transactions, there are different crime numbers and the cases have been decided by the different judgments.
  • there is no specific order or direction issued by the court while imposing the subsequent sentence that the subsequent sentence to run concurrently with the previous sentence.

[Mohd. Zahid v. State through NCB, 2021 SCC OnLine SC 1183, decided on 07.12.2021]

Counsels

For appellant: Advocate Sangeeta Kumar

For State: Advocate Akaanksha Kaul

*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Manoj Bajaj, J., directed for disciplinary action against the Presiding Officer of the Trial Court who had granted bail to one accused in an NDPS case by neglecting the materials on record.

The case against the petitioner was that when he was signalled to stop by the Police for search of contraband, he had suddenly run his vehicle over police party with intention to kill and the person sitting behind driver seat fired firearm shot at police party. Also, during search of the vehicle about 320 kgs. 150 grams Ganja was recovered from it. Consequently, a case was registered against the petitioner under Sections 20, 25, 27, 61 NDPS Act, 1985, Section 25 Arms Act, 1959, Sections 307 and 420 of Penal Code, 1860.

The petitioner had sought for concession bail on parity as, by an 01-11-2021, the Additional Sessions Judge had granted bail to the co-accused, namely, Pardeep. The petitioner contended that the prosecution had set up a common case against both the accused persons. The petitioner also contended that the contraband recovered would not fall within the definition of Ganja.

Findings of the Court

Finding the argument that the recovered contraband would not fall within the ambit of NDPS Act,1985 as misplaced, the Bench observed that as per FSL report, the sample tested was identified as `Ganja’.

The Bench opined that as per the definition under S. 2(iii)(b) of NDPS Act, though seeds and leaves in the absence of fruiting tops may not fall within the definition of Ganja, but where the seeds or leaves are accompanied by tops, the said material would not be excluded from the definition of Ganja. The physical appearance of the material as contained in the FSL report; i.e. recovered from accused described it as “greenish brown vegetative material having flowering/fruiting tops and seeds etc.”  

Therefore, the order relied by the petitioner revealed that the Trial Court proceeded to grant regular bail to co-accused Pardeep on the ground that neither the applicant was arrested from the Tempo Traveller, nor the FSL report relating to alleged contraband had been received. Further, the Trial Court had also noted the clean antecedents of the co-accused and the fact that the alleged supplier did not name the said co-accused as a reason to extend concession bail to the co-accused.

Noticeably, the observation that the co-ccused, Pardeep was not arrested from the Tempo Traveller gives an impression that he was not present at the spot, whereas as per prosecution, the driver had tried to escape in a violent manner in order to avoid arrest and seizure of contraband. Strangely, the FSL report was filed on 03-06-2021 before the Trial Court, but it was not referred to at all by the Presiding Officer, who extended the bail with the observation that the report was yet to be filed. As a result, the Bench opined that the order dated 01-11-2021 had been passed by the Additional Sessions Judge in an arbitrary manner by twisting the facts in order to extend the benefit of regular bail to the co-accused.

Decision

Holding that the Presiding Officer had extended the concession of regular bail to the co-ccused, Pardeep by deliberately ignoring the material on record, and exercised the discretion in favour of accused by violating the sound judicial principles and that amounts to grave misconduct on his part, the Bench directed for a disciplinary action against the Presiding Officer. The regular bail granted to the co-accused, Pardeep by the Trial Court was cancelled and he was directed to surrender before the Trial Court. The bail application of the petitioner was withdrawn. [Ajay Kumar v. State of Haryana, Criminal Misc. No.31752 of 2021, decided on 01-12-2021]

Kamini Sharma, Editorial Assistant ahs reported this brief.

Appearance by:

For the Petitioner: Dushyant Saharan, Advocate

For the State: Bhupender Singh, DAG, Haryana

For the Co-accused: R.A.Sheoran, Advocate

Case BriefsHigh Courts

Bombay High Court: Addressing a very crucial question having relevance with the Narcotics Drugs and Psychotropic Substances cases, Revati Mohite Dere, J., decided whether blotter paper forms an integral part of the LSD Drug when put on blotter paper for consumption.

Crucial Question:

A question which would have a bearing in several Narcotics Drugs and Psychotropic Substances (NDPS) cases, in which blotter paper containing Lysergic Acid Diethylamide (LSD) is seized, arose in the present petition.

Whether the blotter paper forms an integral part of the LSD drug when put on a blotter paper for consumption?

Analysis, Law and Decision

What is LSD?

It is an extremely potent hallucinogen, synthetically made from lysergic acid, found in ergot, a fungus grown on rye and other grains.

Its effects, often called a ‘trip’ can be stimulating, pleasurable and mind altering or it can lead to an unpleasant, sometimes terrifying experience called ‘a bad trip’.

Unlike toilet paper or even tissue paper, blotter paper appears to be made out of an extra-absorbent material and generally includes ingredients such as rice, cotton and even flax seed. It is impossible to visually identify the strength or type of drug when buying.

Further, it is stated that LSD is often added to absorbent paper, such as blotter paper. As noted above, the paper is divided into small, decorated squares (or tabs) with each square representing one dose called a ‘hit’. LSD can also be found in thin squares of gelatin. LSD is taken by mouth and swallowed or also licked off blotter paper.

LSD is a potent, long-lasting psychoactive substance.

Court stated that LSD put on a blotter paper, is capable of being swallowed, after placing it on the tongue. It is thus evident that the blotter paper is capable of being swallowed and is used as one of the methods for consuming LSD.

Merely because the said blotter paper can be licked or put in a glass of water, does not necessarily mean that the blotter paper has to be excluded whilst determining the LSD on the blotter paper.

High Court opined that, a blotter paper, a carrier material, ingested with LSD, forms an integral part of the ingestion by the user of the drug and thus, constitutes preparation of the psychotropic substance i.e. LSD.

Elaborating further, Court added that once it is accepted that a blotter paper ingested/impregnated with LSD, is used as a medium of consumption, the same will squarely fall within the definition of the term ‘preparation’, as defined in Section 2 (xx) of the NDPS Act.

Hence,

The blotter paper impregnated or ingested with LSD will have to be considered as a whole, whilst determining whether the quantity is a small or commercial quantity.

With respect to the findings of Supreme Court in Hira Singh  v. Union of India, 2020 SCC OnLine SC 382, the object and legislative intent behind enacting the NDPS Act, High Court held that the blotter paper forms an integral part of the LSD, when put on a blotter paper for consumption and, as such, the weight of the blotter paper containing LSD will have to be considered for the purpose of determining small or commercial quantity of the offending drug. [Narcotics Control Bureau v. Anuj Keshwani, 2021 SCC OnLine Bom 4548, decided on 29-11-2021]

Advocates before the Court:

Mr. Anil C. Singh, ASG a/w Mr. Aditya Thakkar, Mr. Advait Sethna, Mr. Shreeram Shirsat, Ms. Smita Thakur, Mr. Pranav Thacker and Mr. Amandeep Singh Sra for the Petitioner

Mr. Rizwan Merchant a/w Mr. Taraq Sayed, Ms. Gayatri Gokhale and Ms. Zainba Abdi for Respondent No.1

Mr. S. S. Hulke, A.P.P for the Respondent No. 2– State

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: B.S. Walia, J., held that merely informing that accused has rights under the NDPS Act, without specifying what rights he has will not constitute compliance with the mandatory requirement under Section 50 sub- Section (1) NDPS Act.

The sole argument of the petitioner was that although the alleged recovery from him was of 523 grams of heroin powder and from his co-accused was of 394, 20, and 803 grams respectively, i.e. commercial quantity, since the petitioner was not informed of his right to be searched in the presence of a Gazetted Officer or a Magistrate if he so desired, therefore, there was non-compliance with Section 50 NDPS Act, consequentially, the bar under Section 37 NDPS Act would not apply, resultantly the petitioner was entitled to grant of bail during the pendency of the trial.

On the contrary, the State had referred to the notice u/S 50 NDPS Act to contend that the petitioner was informed, of apprehension of the police that he had some intoxicating material/heroin with him, his rights, besides option to get his search conducted by a Magistrate or Gazetted Officer for which the said Officer could be called on the spot, therefore in the circumstances, there was due compliance with the mandate of Section 50 NDPS Act.

In State of Delhi v. Ram Avtar, (2011) 12 SCC 207, the Supreme Court had observed that, “……while discharging the onus of Section 50 of the Act, the prosecution has to establish that information regarding the existence of such a right had been given to the suspect. If such information is incomplete and ambiguous, then it cannot be construed to satisfy the requirements of Section 50 of the Act. Non-compliance of the provisions of Section 50 of the Act would cause prejudice to the accused, and, therefore, amount to the denial of a fair trial.”

Noticeably, though the notice under Section 50 of the NDPS Act was sent to the petitioner apprising him of his rights but the said notice was absolutely silent as to what rights were apprised to the petitioner as also whether he was apprised of his right under Section 50 NDPS Act, to be searched in the presence of a Magistrate or a Gazetted Officer.

Observing that the impugned notice merely mentioned the petitioner having been informed of his rights as also the option if he so desired to get his search conducted by a Magistrate or Gazetted officer, the Bench stated,

“To my mind, merely informing the petitioner that he had rights under the NDPS Act, without specifying what rights the petitioner had under the NDPS Act, would not constitute compliance with the mandatory requirement under Section 50 sub- Section (1) NDPS Act.”

Hence, noticing that the mandatory requirement under Section 50(1) NDPS Act not having been complied with and the punishment provided for an offence under the NDPS Act being very stringent, the Bench held that failure to comply with Section 50 NDPS Act had rendered the recovery of the illicit article suspect. The Bench stated,

“Since, the requirement under Section 50 NDPS Act is not merely a technical breach, and the petitioner is not involved in any other case under the NDPS, therefore, in the circumstances…it can safely be recorded that this Court is satisfied that there are reasonable grounds to believe that the petitioner is not guilty of such offence and that he is not likely to commit any such offence while on bail.”

Considering that the petitioner had been in custody since 21-01-2021, and the investigation was complete, and a Challan had been presented, the Bench directed to release the petitioner on regular bail on his furnishing bail bond and surety bond to the satisfaction of the Trial Court. [Sunil v. State of Haryana, CRM-M No.28067 of 2021, decided on 02-11-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: Preetinder Singh Ahluwalia, Advocate and Shaurya Puri,

For the State: Gurbir Singh Dhillon, AAG Haryana (Argued by Mr. Naveen Kumar Sheoran, DAG, Haryana)

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Anupinder Singh Grewal, J., granted bail to the person accused of carrying 1.6 kg of ganja on the ground that the challan filled without FSL report would not be a complete challan.

The petitioner had approached the Court for seeking default bail in a case under Section 20(b) of the NDPS Act. The contention of the petitioner was that the challan had been filed without the FSL report, and therefore, he would be entitled to default bail in terms of Section 167(2) CrPC. The allegation against the petitioner was that 1kg 600 grams of ‘ganja’ was recovered from him.

Reliance was placed by the petitioner on State of Haryana v. Dildar Ram, CRM-M-25600-2021, wherein it had been held that filing of the challan without FSL report would not be regarded as a complete challan and, therefore, the accused would be entitled to default bail in terms of Section 167(2) CrPC. Similarly, in Ajit Singh v. State of Punjab, CRR No.4659 of 2015, it was held that the report of the FSL with regard to the nature of the recovered substance would go to the root of the matter and, therefore, a challan filed without the FSL report with regard to the nature of the substance would be an incomplete challan and would not satisfy the requirement envisaged under Section 167(2) CrPC.

In Ajit Singh v. State of Punjab, CRR No.4659 of 2015, the Court had observed the following:

“We emphasize on the stringent aspect of the N.D.P.S. Act which would compellingly persuade us to take the aforesaid view. Without determining the nature and content of the contraband, it would be draconian to propel an accused into the throes of a trial. The liberty of an individual would constantly be imperiled at the hands of dubious officials of the police who may venture to falsely implicate a person. It is for this reason that we would unhesitatingly conclude that the Chemical Examiner’s report is an essential ; integral and inherent part of the investigation under the N.D.P.S. Act as it would lay the foundation of an accused’s culpability without which a Magistrate would not be enabled to form an opinion and take cognizance of the accused’s involvement in the commission of offence under the Act.”

In the light of the above judgment, the Bench held that since the challan had been filed without the FSL report in the instant case, the petitioner would be entitled to be released on default bail in terms of Section 167(2) CrPC.  Accordingly, the petitioner was ordered to be released on default bail on his furnishing requisite bonds to the satisfaction of the Trial Court/Duty Magistrate concerned.[Bhim Sain v. State Of Haryana, CRR No. 1300 of 2021, decided on 28-10-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: V.B. Godara, Advocate

For the Respondent: Aditi Girdhar, AAG, Haryana

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Alok Kumar Verma, J., allowed a bail application which was filed for grant of regular bail for the offence under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the Act, 1985”).

FIR stated that Sub-Inspector along with other police officials were present at Ataria for routine checking. The applicant was coming from Ataria with a bag. On suspicion, he was apprehended and 430 gram of charas was recovered from his bag.

Counsel for the applicant, Mr Anil Kumar submitted that the applicant had been implicated in this matter; he is a student; no contraband was recovered from his possession; the applicant had no criminal history; mandatory provisions of the Act, 1985 were not complied with.

A.G.A. for the State, Mr Pratiroop Pandey fairly conceded that the applicant had no criminal history but opposed the bail application.

The Court concluded that in terms of Section 2 (xxiii-a) and Section 2 (vii-a) of the Act, 1985, 100 gram of charas was small quantity and greater than one kg of charas was commercial quantity (Entry No.23).

Court further added that Refusal of bail is a restriction on the personal liberty of an individual, guaranteed under Article 21 of the Constitution of India. The object of keeping the accused person in detention during the investigation is not punishment. The main purpose is manifestly to secure the attendance of the accused.

Court allowed the bail application holding that there was no reason to keep applicant behind the bars for an indefinite period.

[Harish Melkhani v. State of Uttarakhand, 2021 SCC OnLine Utt 1146, decided on 07-10-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Legislation UpdatesRules & Regulations

The Central Government after consultation with the Ayurveda, Siddha, Unani Drugs Technical Advisory Board, notifies Drugs (4th Amendment) Rules, 2021 to amend the Drugs Rules, 1945.

 

The amendment modifies the following provisions:

  1. Rule 153 dealing with Application for licence to manufacture Ayurvedic (including Siddha) or Unani drugs. The fee has been revised from one thousand to two thousand.
  2. Inserted a new provision Rules 153 B dealing with Application for Certificate of Good Manufacturing Practices for Ayurvedic, Siddha or Unani drugs manufacturing unit.
  3. Rule 154 dealing with Form of licence to manufacture Ayurvedic (including Siddha) or Unani drugs has been amended to make modifications in the period in which a licence to manufacture for sale of any Ayurvedic, Siddha or Unani drugs shall be issued in Form 25D  from the date of receipt of the application or from the date of compliance by the applicant of shortcomings. Earlier, the period was 3 months but now the period has been modified to two months.
  4. Rule 154 A dealing with Form of loan licence to manufacture for sale of Ayurvedic, Siddha or Unani drugs has been modified to insert the period within which a loan licence to manufacture for sale of any Ayurvedic, Siddha or Unani drugs shall be issued in Form 25E. The Loan License shall be issued within a period of two months from the date of receipt of the application or from the date of compliance of shortcomings.
  5. Rules 155 dealing with Certificate of renewal and 155A dealing with Certificate of renewal of a loan licence of the principal rules, shall be omitted.
  6. Rule 156 dealing with duration of license has been amended to modify the vaildity period from 5 years to remain perpetually valid.

Provided that the licencee shall submit a self declaration of adherence to the conditions of licence and the
provisions of the Drugs and Cosmetics Act and the rules made thereunder, every year from the date of issue of licence in form 25 D or from the date of submission of last self declaration, as the case may be .

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Dipankar Datta, Cj., and G. S. Kulkarni, J., expressed its displeasure on casual attitude of the authorities in complying with the Court’s orders. The Bench, while criticizing the strategy adopted by the State government for allocation of Remdesivir drug to the hospitals, said,

“The allotment of Remdesivir appears to have been made on the basis of ‘functional bed capacity’ of each of the hospitals. Such allocation whether would cater to the actual need of the patients has not been explained to us.”

The Bench observed that the data furnished by the State Government did not reflect a clear picture in regard to availability of ‘Remdesivir’to the needy patients, as the same had been done on the basis of ‘functional bed capacity’ of each of the hospitals. Expressing displeasure on the effectiveness of such allocation, the Bench directed the State to file an affidavit indicating whether it would cater to the actual need of the patients. The Bench clarified it to the government,

“Our concern would be solely that no patient who is in actual need of the drug in the course of his treatment is deprived of the availability of such drug. It may also happen that such drug being allocated on the basis of ‘functional capacity’ may result into allocation in a hospital wherein there is no real time requirement of the said drug.”

Noticing that the numbers of active patients are reduced almost by two lakhs, the Bench opined that proportionately the Oxygen requirement also ought to have reduced. Hence, the State government was directed to place on record the correct position in regard to the availability of Oxygen.

With regard to the extra legal supply of the medicine/drug Remdesivir at the hands of political and film personalities, the Bench directed the central as well as the state government to submit their records as to how such drug, which is in such short supply, is available to these personalities for distribution to public at large. The Bench further asked reports on whether Remdesivir as supplied by these personalities would suffice the medical test of being non-spurious and genuine. Commenting on a recent trend of submitting “brief notes” in compliances of Court’s order, the Bench expressed its displeasure over such practices and said, “the compliances should be placed on record by way of affidavits. Henceforth we do not permit and continue this practice of submitting ‘brief notes’.”

In regard to the issue of the dashboard indicating the correct figures of availability of beds, the Bench urged the Municipal Corporations concerned and the State Government to have expert opinion of all the stakeholders so that the dashboard reflects the correct picture. The Court suggested the authorities to get inputs of the Air Traffic Controller/Civil Aviation Department and the Railways for correct reflection of the data, information and technology used by them for preparation of up-to-date dashboards. The Bench opined that such facility should not only meet urgent requirement during the pandemic, but it should be available throughout for times to come in regard to all kinds of ailments requiring hospitalization. Hence, the Union of India, State Government, Municipal Corporations and all other authorities were directed to deliberate on such issues and make an endeavor to prepare an ideal dashboard.

[Sneha Nirav Marjadi v. State of Maharashtra, 2021 SCC OnLine Bom 734, order dated 19-05-2021]

Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

Counsels for the Petitioner: Simil Purohit a/w Arshil Shah, Nirav Marjadi, Dharmapal
Dave, Parisha Shah, Pariket Shah, Vishal Raman, Smita
Durve and Drasti Jani
Counsels for the State:  Akshay Shinde, B Panel Council with Addl. G.P. Geeta Shastri
For Municiple Council of Greater Mumbai: A.Y. Sakhare with Rohan Mirpury and K. H.
Mastakar
Counsels for UOI: ASG Anil C. Singh a/w Aditya Thakkar with D. P. Singh, Yash Momaya i/b  Gul Asnani
Counsel for Pune Municipal Corporation: Abhijit Kulkarni

Counsel for the Intervener: Nitin P. Deshpande