Mohnish Mohan vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner, invoking Section 439 of the Code of Criminal Procedure (for short ‘Cr.P.C.’), has approached this Court for grant of bail in case FIR No.66 of 2021, dated 30.5.2021, registered, under Section 22 read with Section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’), and Sections 420, 468, 471, 120B of the Indian Penal Code (for short ‘IPC’), in Police Station Paonta Sahib, District Sirmour, Himachal Pradesh.

Status Reports have been filed on various dates, indicating the progress in the investigation. Main Challan has been presented in the Court on 18.2.2022 and investigation against other accused is in progress and supplementary Challan against them would be filed in Court on completion of investigation by the Investigating Agency. Record was also made available.

Prosecution case is that on 18.5.2021, Punjab Police from Police Station Mattewal, District Amritsar (Punjab), seized huge quantity of prohibited Tramadol Tablets manufactured by Unique Formulations Company, situated in Paonta Sahib, resulting into registration of FIR No.51 of 2021, dated 18. 5.2021, under Sections 22 and 29 of the NDPS Act, in Police Station Mattewal. For further investigation, Punjab Police, on 27. 5.2021, approached Himachal Police in Police Station Paonta Sahib and in pursuance thereto, for maintaining law and order, Himachal Police officials were deputed with Punjab Police, as recorded in Rapat Nos.29, 51, 54 & 57, dated 27.5.2021 in Police Station Paonta Sahib. Punjab Police returned after completing the investigation on their part.

It is further case of prosecution that on 29.5.2021, Incharge of Police Station received a reliable information from trustworthy informer that Unique Formulations manufactures drugs related to prohibited salt Tramadol, and in documents, though only petitioner Mohnish Mohan is the owner but there are other persons behind it, who are financing the company and marketing its product and this company, under conspiracy, on the wrappers of drug related to Tramadol has printed as ‘Marketed by PB Pharmaceuticals’, Raj Tower, Third Floor, Hauz Khas, New Delhi, but no such Marketing Company is in existence. On receiving this information, Incharge of Police Station, on 29.5.2021 to verify the fact sent an e-mail to Incharge Police Station Hauz Khas, New Delhi, wherefrom, on 30.5.2021, it was informed that no such Company was found at the address given. On the basis of information supplied by informer, preliminary inquiry and report received from Police Station Hauz Khas, it appeared that the owners of Unique Formulations had printed name and address of non-existing ‘PB Pharmaceuticals’ Marketing Company with intention to supply drug related to Tramadol through illegal Company, shops and persons etc. in illegal manner, and violation of Notification dated 11.2.2020, enforceable w.e.f. 1.3.2021 was also found and, therefore, FIR No.66 of 2021, under Section 22 read with Section 8 of the NDPS Act and Sections 420, 468, 471, 120B IPC, was registered in Police Station Paonta Sahib against the owner/owners of Unique Formulations.

After registration of FIR, premises of Unique Formulations were raided, wherefrom 1050 Tablets of Tramadol Hydrochloride, kept in three boxes, were taken in possession. Thereafter, 30 Drums (containers) of Tramadol Raw Material, which were seized by Drug Inspector Paonta Sahib on 27.5.2021, the day of raid by Punjab Police, were also produced before the Police Inspector conducting the investigation. 29 Drums were found sealed whereas one was open. One sealed Drum was opened and checked wherein in two poly bags white coloured substance was found which was identified by Drug Inspector as Tramadol Raw Material. Total weight of the material was found to be 745.36 kg and gross weight alongwith Drums was 851.170 kg and Drums alongwith Raw Material were taken in possession and seized.

On search of the factory, from one room 3500 Secondary Packaging Cartons containing print “PB Pharmaceuticals Raj Tower 3rd Floor Hauzkhas New Delhi” were also recovered and seized. Two rolls of Primary Packaging material of PB Pharmaceuticals and three rolls of Primary Packaging material of Gajanand Pharma Bandra (E) Mumbai were also recovered and seized.

In response to written application dated 3.6.2021, submitted to Drug Control Department, F-17 Karkarduma, New Delhi, a written report was received, stating that no Company named as “PB Pharmaceuticals” with given address is in existence and the given address is incorrect.

Recovered Tablets of Clocidol, containing Tramadol Hydrochloride, and Tramadol Raw Material were found samples of Tramadol Hydrochloride Tablets and samples of Tramadol Hydrochloride Powder, respectively.

During investigation, petitioner Mohnish Mohan was found in custody of Punjab Police in case FIR No.51 of 2021, referred supra. His custody was got transferred to Himachal Police on 26.8.2021, after obtaining Production Warrant from Additional Chief Judicial Magistrate, Paonta Sahib and he was arrested in present case and was remanded to six days police custody.

During investigation, on the basis of information, with respect to purchase and sale of Tramadol and drugs prepared therefrom and destination of such drugs, gathered from Drugs Inspector Paonta Sahib, it was found that most of times person named Ranu Bhargav had been contacted by petitioner Mohnish Mohan and, therefore, custody of Ranu Bhargav from Punjab Police was got transferred to Himachal Pradesh on 29.9.2021 through Production Warrant issued by Additional Chief Judicial Magistrate Paonta Sahib and he was sent for five days police custody.

In interrogation during remand, it came on record that one Tarun Batra had also been claiming himself to be owner of Unique Formulations, who was also owner of Apple Field Company wherefrom huge quantity of Tramadol Capsules were recovered in the past. It has transpired from investigation that Unique Formulations was having licence to manufacture 164 drugs but it was manufacturing, most of times, Tramadol related drugs, as because of huge demand of Tramadol related drugs only in the market, company and accused were being benefited.

During investigation, on the basis of information given by the arrested accused and in inquiry about the Bank Accounts of the company and personal account of the accused, huge transaction of amount with Chetan Parmar, Tarun Batra, Ajit Mittal Corporation, Kaushalya Devi, Tushar Chaudhary, Ritu Chaudhary, etc. was found. Lateron Ranu Bhargav was enlarged on bail by Special Judge-1, Sirmaur at Nahan on 14. 2.2022.

Tarun Batra was summoned by the Police by sending Hukmnama, under Section 160 Cr.P.C., but he did not join the investigation and filed an application for anticipatory bail on 15.2.2022 before Special Judge, Sirmaur at Nahan, and during pendency of that application he was directed to join investigation on 20.2.2022 by issuing Hukmnama but he did not join the investigation and his phone was also found switched off and, on interrogation, his wife also did not supply any information about him and his counsel withdrew the anticipatory bail application and thereafter accused Tarun Batra is absconding.

As per details of accounts, Tarun Batra, through Apple Field International, between 6.12.2018 to 11.4.2019, had deposited `12,64,453/- in Account of Unique Formulations maintained in Punjab National Bank. It has come in notice that on 25.4.2019, during raid in Apple Field Company by CID, Local Police and Drugs Inspector, 26.18 kg Codeine Syrup and Tramadol Capsules were recovered and in this regard FIR No.54 of 2019 dated 26.4.2019 was registered in Police Station Majra, under Section 21 of the NDPS Act and Section 18C of Drugs & Cosmetics Act and Tarun Batra, alongwith co-accused Dinesh Kumar, Rajiv, Asif Sardana and Ekta Tiwari, is on bail and the case, after presentation of Challan on 26.10.2019, is pending adjudication in the Court at Nahan,

As per Status Reports, for recovery of Tablets, containing Tramadol Hydrochloride, and huge Raw Material for manufacturing such Tablets, it is apparent that petitioner was preferring to manufacture drugs related to Tramadol Hydrochloride and it indicates criminal conspiracy of the accused persons that their only motive was to manufacture narcotic drugs, which has resulted into drug addiction in the society, damaging the youth. It is further in the Status Reports that on 27.5.2021 during raid by Punjab Police in the Company, Drugs Inspector had also inspected the premises and submitted complete report mentioning therein gross violation of terms and conditions of the licence.

During investigation, offence under Section 467 IPC has not been made out and, therefore, this Section has been omitted and further investigation is in progress and on completion thereof Supplementary Challan shall be presented.

Petitioner Mohnish Mohan has been enlarged on default bail by Special Judge, Amritsar, in case FIR No.51 of 2021 on failure of Punjab Police to file Challan within 180 days.

It has been informed that during further investigation, Companies to whom Tramadol related drugs were supplied by Unique Formulations were verified and investigation with respect to 18 Companies is complete, wherein PB Pharmaceuticals and Gajanand Pharma, claimed to be the Marketing Companies, were not found in existence and Mexico Healthcare was found in existence till 28.7.2021 but not thereafter. It has been submitted by learned counsel for the petitioner that present FIR has been registered on 30.5.2021 and till that time Mexico Healthcare Firm was in existence. Therefore, there is no illegality in supplying tablets to the said Firm by the Firm of the petitioner.

As per Status Report, Astha Medicare of New Delhi was found in existence but its Proprietor has denied any dealing with Unique Formulations.

Plea of the Investigating Agency that proprietor of Astha Medicare, vide letter date 28.6.2021, informed that Firm never purchased any medicine from M/s Unique Formulations and never received any invoice or goods at their shop till June 2021, has been controverted by the learned counsel for the petitioner by placing on record documents related to existence of the said Firm, alongwith Bill dated 20.4.2021 and Purchase Order dated 3.5.2021 with respect to supply of tablets by M/s Unique Formulations to Astha Medicare.

It has further been submitted that except one Company, i.e. M/s Astha Medicare, all companies have verified the transaction and supply of drugs to be genuine and so far as Astha Medicare is concerned, Investigating Agency is relying upon written Communication dated 28.6.2021, but without verifying the record of Unique Formulations as well as Astha Medicare regarding which detail was provided to the Drugs Inspector and on the basis of which further investigation is being carried out.

In Status Report, it is stated that Drugs Inspector of NOIDA has informed that the licence of Balaji Medical Agencies was cancelled/suspended on 15.3.2021 on the application filed by its Proprietor for surrendering it. Photocopy of document related to Balaji Medical Agencies, claiming its existence at the time of supply of tablets, has also been placed on record. It has been canvassed that there is nothing on record to depict that Unique Formulations has supplied any medicines/drugs to Balaji Medical Agencies after cancellation of its licence by the concerned Officer/Department.

It has been further submitted on behalf of the petitioner that though licence of Balaji Medical Agencies was cancelled on 15.3.2021, but it was not in the knowledge of the petitioner and on the basis of demand raised on behalf of said Company at earlier point of time, Tramadol related drug was supplied to the said Company on 22.3.2021 and 31.3.2021 and that innocent supply of such drug, based on the demand raised at the time of existence of licence, is not illegal on the part of petitioner, until and unless cancellation of licence was intimated to the petitioner or his Company.

It has further been submitted on behalf of the petitioner that at one point of time, it was submitted before the Court that Mexico Healthcare was not in existence at the time of supply of drugs by Unique Formulations but after supply of documents, available with the petitioner, it has been verified by the Investigating Agency that the said Company was in existence till 28.7.2021. He has further submitted that similarly further investigation into the record would reveal that record of supply of drugs to Astha Medicare is also genuine.

It has been submitted on behalf of the petitioner that the only reason to frame the petitioner in present case, as appears from the Status Report, is that Company of the petitioner was preferring to manufacture huge quantity of drugs related to Tramadol instead of manufacturing all 164 drugs for which licence has been issued. According to him, it cannot be an offence, particularly when it has also been observed in the Status Report that it was done by the petitioner’s company for demand in the market and profit to the company, as the company of the petitioner has sold drugs to genuine companies and there is nothing on record that company was involved in illegal supply of Tablets in reference to any company or person involved in commission of offence with respect to such drugs. It has been submitted that company of the petitioner has made genuine supply to genuine companies according to requisition/demand of such companies. It has been further submitted that no lot of drugs with print “Marketed by PB Pharmaceauticals” and “Marketed by Gajanand Pharma” have been sold to illegal or unauthorized persons/ companies/firms, which is evident from various Status Reports filed by the Investigating Agency/Officer and further that there is no link between drugs recovered by Punjab Police in case FIR No.51 of 2021, registered in Police Station Mattewal, with supply of drugs, in reference, by the Company of the petitioner.

It has been further submitted by learned counsel for the petitioner that co-accused Ranu Bhargav, charged with the same offence, has been enlarged on bail by learned Special Judge, vide order dated 14.2.2022, passed in Bail Application No.332-BA/22 of 2021.

It has further been submitted that petitioner has nothing to do with activities and deeds of Tarun Batra who is absconding and who was also involved in similar cases earlier also. Further that, though in the Status Reports there is mention of Chetan Parmar, Tarun Batra, Ajit Mittal Corporation, Kaushalya Devi, Tushar Chaudhary, Ritu Chaudhary, etc., but there is nothing on record to reflect any investigation carried out by the police with respect to them or any other material about any illegal activity by them relating to the petitioner with commission of offence and, therefore, transaction with them made bonafide with respect to business is not an offence committed by the petitioner and any act of Tarun Batra involving in commission of offence under NDPS Act or otherwise cannot be made basis to incarcerate the petitioner for indefinite period.

It has also been contended that in case Tarun Batra was released on bail for commission of similar offence, then it was expected from the prosecution/police to take appropriate steps for cancellation of his bail in previous case for his involvement in present case or for absconding, but no such action appears to have been taken from the material placed on record.

As per Status Report, petitioner could not produce any agreement with PB Pharmaceuticals and Gajanand Pharma, as required under law/instructions in view of Rule 84(D) incorporated in the Act through Drugs and Cosmetics (Amendment) Rules, 2020. Further that license issued to M/s Balaji Medical Agencies had been cancelled by Local Drug Department on 15.3.2021 and thereafter this Firm was not having the requisite licence to purchase Tablets containing Tramadol, which have been sold by the Firm of petitioners to the said Firm.

It has been further canvassed on behalf of petitioner that there is no illegality or illegality in marketing the Tablets containing Tramadol through PB Pharmaceuticals and Gajanand Pharma, as Tablets containing Tramadol, through these Firms, were marketed prior to issuance of instructions by the Authority making it mandatory to have agreement with the Firms through whom drug manufactured by the Firm were to be marketed, as these terms were notified vide Office Order dated 4.6.2021, issued by State Drug Controller, Baddi, District Solan, H.P. Copy of the Office Order has also been placed on record. Therefore, it has been contended that there is no illegality committed by the Company of the petitioner in marketing the Tablets containing Tramadol through aforesaid Firms without entering into agreement.

Learned counsel for the petitioner has placed on record photocopy of documents related to the aforesaid Firms, according to which Ethix Pharma was in existence and has placed on record Purchase Order dated 2.3.2021 to Unique Formulations for supply of tablets containing Tramadol; M.K. Pharmaceuticals was in existence upto 31.12.2020 and has placed on record Purchase Order to M/s Unique Formulations on 23.12.2020 and 4.2.2021 for supply of tablets containing Tramadol; Krishna Medical Agencies is in existence having licence till 13.1.1026; Ram Lakhan Pharma was in existence and was having licence; and Kestral Healthcare is having valid licence upto 6.5.2023. Copies of these documents have been supplied to the respondent-State.

As per Status Reports, existence and verification of two Firms, namely Ram Lakhan Pharma and Indian Pharma is yet to be verified regarding which correspondence with Drug Inspectors of respective States of the Firms is in progress.

Learned counsel for the petitioner has submitted that till date, on the basis of material on record, case of the Investigating Agency is that Firm of the petitioner was preferring to manufacture tablets, containing Tramadol, despite having licence to manufacture 164 other drugs/ medicines and

30 drums of Tramadol raw material were found in the premises of the manufacturing unit of the Firm.

It is contended on behalf of the petitioner that on the basis of orders and demand received by the Firm, medicines containing Tramadol were being manufactured but within the parameters of law and in accordance with the licence issued in its favour. Recovery of 30 drums of tramadol raw material in the manufacturing unit of Firm of the petitioner is also not an offence as it was legally and validly procured by the Firm of the petitioner. Further that, Investigating Agency has inquired 18 Firms, out of which all Firms, except Marketing Agents mentioned on wrappers, have been found in existence and it is not a case where any drug manufactured by Unique Formulations, shown to have been marked by ‘PB Bharmaceuticals, Raj Tower, Third Floor, Hauzkhas, New Delhi – 110016’ and ‘Gajanand Pharma Bandra (E) Mumbai, have been found to be supplied to a Firm or person having no licence or has been recovered from any person involved in commission of offence under NDPS Act and, therefore, proof of existence or non-existence of these Firms is immaterial for the purpose of ascertaining guilt of the petitioner, and there is no illegality in supplying or selling the medicines by Unique Formulations to the Firms, and with respect to remaining Firms photocopies of documents have been supplied to the Investigating Agency, which is sufficient to establish bonafide of manufacturing and supplying of drugs/medicines by Unique Formulations and, therefore, at this stage, nothing is to be recovered from the petitioner and no fruitful purpose is going to serve by keeping the petitioner behind the bars, as Investigating Agency has not been able to conclude the investigation during the period of more than one year.

It has further been submitted by the learned counsel for the petitioner that in case the petitioner is ordered to be released on bail, he is ready to furnish the bail bonds and also to abide by any conditions that may be imposed by the Court.

Without commenting upon merits of rival contentions of the parties, considering the material placed before me and also parameters and factors necessary to be considered at the time of adjudication of bail application, I am of the opinion that, at this stage, petitioner may be enlarged on bail.

Accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail, at this stage, subject to his furnishing personal bond in the sum of `3,00,000/ - with one surety in the like amount to the satisfaction of the trial Court, and upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to ensure the presence of petitioner/accused at the time of trial:

(i) That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required, as per law;

(ii) that the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to Court or to any police officer or tamper with the evidence.

He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

(iii) that the petitioner shall not obstruct the smooth progress of the investigation/trial;

(iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;

(v) that the petitioner shall not misuse his liberty in any manner;

(vi) that the petitioner shall not jump over the bail;

(vii) that the petitioner shall keep on informing about the change in address, landline number and/or mobile number, if any, for his availability to Police and/or during trial;

(viii) the petitioner shall not leave India without permission of the Court.

It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice. It shall be open for the trial Court to impose any other condition, as deemed necessary, upon the petitioner, independent of prayer of prosecution.

In case the petitioner violates any conditions imposed upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law.

Learned trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013.

Observations made in this petition hereinbefore shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application.

The petitioner is permitted to produce copy of order downloaded from the High Court website and the trial Court shall not insist for certified copy of the order, however, passing of order may be verified from the High Court website or otherwise.

Petition stands disposed of in the aforesaid terms.