Vikash Kumar vs State Of Odisha
2023 Latest Caselaw 7680 Ori

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               IN THE HIGH COURT OF ORISSA AT CUTTACK

                                    BLAPL No.468 of 2023

           Vikash Kumar                        ....                      Petitioner


                                         -versus-

           State of Odisha                     ....               Opposite Party


                       For Petitioner : Mr. Milan Kanungo, Sr. Advocate
                                        Mr. S. Das, Advocate
                       For Opposite Party : Mr. S.K. Nayak, AGA

               CORAM: JUSTICE V. NARASINGH
                                 Date of hearing :13.07.2023

                                Date of judgment:17.07.2023

V. Narasingh, J.

1. Heard Mr. M. Kanungo, learned Senior Counsel for the petitioner and Mr. S.K. Nayak, learned Additional Government Advocate for the State.

2. The petitioner is an accused in connection with G.R. Case No.1168 of 2022, pending in the file of the learned S.D.J.M.(S), Cuttack, arising out of Purighat P.S. Case No.221 of 2022 for alleged commission of offences under Sections 420/336/483/486/34/326/465/467/471/120-B of IPC.

3. Being aggrieved by the rejection of his application for bail U/s.439 Cr.P.C. by the learned Additional Sessions Judge-cum- Special Judge, Cuttack, by order dated 10.01.2023 in the aforementioned case, the present BLAPL has been filed.

BLAPL No.468 of 2023

4. Petitioner was taken into custody from Patna, Bihar on 06.12.2022 on the accusation that he supplied spurious drugs "TELMA-40" and "TELMA-AM" to one Rahul Ku. Kyal of M/s.V.R. Drug Agencies and others.

5. It is the submission of Mr. Kanungo, learned Senior counsel that the implication of the petitioner is primarily on account of the statement made by the co-accused Rahul Kumar Kyal and he having been released on bail by this Court by order dated 02.11.2022 in BLAPL No.9798 of 2022, the petitioner is entitled to be released inter alia on the ground of parity and more so as charge sheet has already been submitted on 09.03.2023. And, further continuance of the petitioner in custody is punitive.

6. Mr. Nayak, learned Additional Government Advocate submits that though preliminary charge sheet has been filed, further investigation has been kept open under Section 173(8) of Cr.P.C. since larger conspiracy to unearth the nexus between the manufacturers, the stockist and retailers are yet to be unearthed. And, primarily because of non-cooperation of the present petitioner and other co-accused, the investigation has hit a road block and if the petitioner is released at this stage, it would be almost impossible to lay hands on the manufacturer and in the process well being of the patients using the drugs in question would be at peril.

7. The case at hand was instituted at the instance of one Mr. Tusar Ranjan Panigrahi, Drugs Inspector, Odisha, Cuttack-I Range, Cuttack on the accusation that spurious medicines with the brand name "TELMA-40" and "TELMA-AM" supposed to have been manufactured by M/s. Glenmark Pharmaceuticals Ltd. have been

BLAPL No.468 of 2023 seized from the custody of one co-accused Rahul Ku. Kyal from M/s.V.R. Drug Agencies.

8. Taking into account that the drugs in question are normally taken by patients with chronic cardiovascular diseases and can be life threatening. Investigation was taken up in right earnest.

9. During the course of such investigation, the retailer who sold the drugs across the counter, co-accused was taken into custody and has since been released on bail by this Court, as noted above.

10. The allegation against the present petitioner is that the co- accused Kyal had deposited amounts against purchase of the said spurious drugs in the account of the petitioner bearing No.030705009117 of ICICI Bank, Patna, Bihar which stands in the name of the present petitioner.

10.A. And, that the present petitioner connived with other co- accused Alok Kumar Mishra (BLAPL No. 11263 and 11666 of 2022), Regional Sales Manager of M/s. Wallace Pharmaceuticals Ltd. and one Harish Ku. Mishra (BLAPL No.11345 and 11714 of 2022) who initially had a drug licence bearing No.BR-GYU- 106861 issued by the Drugs Controller, Bihar which though was valid from 31.01.2019 to 29.01.2024 which, he surrendered in February 2022, sold drugs knowing them to be spurious to the co- accused Kyal, Damodar Choudhury and Sanjay Jalan. 11 It is apt to note here that said Damodar Choudhury and Sanjay Jalan have since been released on bail by orders dated 12.04.2023 and 02.11.2022 in BLAPL No.2298 of 2023 and 9548 of 2022 respectively.

BLAPL No.468 of 2023

12. The case at hand was listed on 12.04.2023 and was adjourned to facilitate further investigation, keeping in view the inter-state ramifications and taking into account the submission of the learned Public Prosecutor that because of non-corporation of the petitioner there is no progress to identify the manufacturer. In the meanwhile, three months has elapsed.

13. During the course of submission, Mr. Nayak, learned Additional Government Advocate for the State reiterated his submission that the offence in the case at hand has three stages that is preparation of the spurious drugs, procurement thereof and supply. According to him unless the manufacturer is identified and taken to custody the circulation of spurious drugs cannot be arrested.

14. Learned senior counsel appearing for the petitioner on the other hand states that primarily the accusation against the present petitioner is on the basis of statement made by the co-accused and the transactions inter se between the petitioner and the co-accused. And, the said co-accused having been released on bail, the petitioner is entitled to be released.

It is further submitted that petitioner is the first offender.

15. It is on record that the petitioner was taken on remand twice. But unfortunately, the investigating agencies have not been able to identify the manufacturer.

16. The detention of an accused in respect of whom the investigation has prima facie attained finality as a virtual bait to arrest other accused who is at large can never be countenanced. It militates against the cardinal principle of bail being the right and negation of the same being the exception in case of this nature in

BLAPL No.468 of 2023 which accusation is under the penal code and there is no inherent embargo to consider bail, as in certain given circumstance under the special acts like NDPS etc.

17. The assessment of parity recently engaged the attention of the Apex Court in the case of Satender Kumar Antil vrs. Central Bureau of Investigation & Another, reported in 2022 (10) SCC 51. The relevant Para is extracted hereunder;

"General right to bail of accused persons and others.

4.-(I) xxx xxx xxx

70. xxx xxx xxx

71. Uniformity and certainty in the decisions of the court are the foundations of judicial dispensation. Persons accused with same offense shall never be treated differently either by the same court or by the same or different courts. Such an action though by an exercise of discretion despite being a judicial one would be a grave affront to Articles 14 and 15 of the Constitution of India."

18. In the considered view of this Court and keeping in view constitutional guarantee against self incrimination, keeping in view the dictum of the Apex Court in Satender Kumar Antil (Supra) there is no further justification for the petitioner to be in custody notwithstanding that the investigation has been kept open under Section 173(8) of Cr.P.C., only to facilitate the arrest of the elusive manufacturer and more so, when the co-accused persons have since been released on bail. The petitioner can be put to terms to allay the legitimate concern of the learned AGA for the State, Mr. Nayak.

19. Hence, it is directed that the petitioner shall be released on bail on terms to be fixed by the learned Court in seisin so as to

BLAPL No.468 of 2023 ensure his presence during trial subject to verification of criminal antecedent of any nature save and except Purighat P.S. Case No.222 of 2022. One of the sureties shall be immediate member of the family who in addition to the sureties so fixed shall execute a P.R. bond.

20. Keeping in view the nature of allegation and the petitioner not being a permanent resident within the territorial jurisdiction of the Court in seisin, balancing the societal interest represented by the investigating agency vis-à-vis individual right to freedom, additionally, it is directed that the petitioner shall not leave the jurisdiction of the learned Court in seisin for next three months and thereafter, only with the express permission of the learned Court in seisin. Further i. petitioner shall surrender his passport, if any. ii. shall appear once every two weeks before the I.O. in the ongoing investigation for the next three months and iii. thereafter as and when summoned.

The I.O. shall intimate the Court in seisin the date on which the petitioner's presence is being sought.

21. Accordingly, the BLAPL stands disposed of.

(V. NARASINGH) Judge

Orissa High Court, Cuttack Dated the 17th of July, 2023/ Santoshi

Signature Not Verified Digitally Signed Signed by: SANTOSHI LENKA Reason: Authentication Location: High Court of Orissa Date: 18-Jul-2023 11:03:01

BLAPL No.468 of 2023