Vishal Atmaram Sonavane vs Union Of India

Kuldeep Mathur, J

This application for bail under Section 439 Cr.P.C. has been filed by the petitioner who has been arrested in connection with F.I.R. No.5/2022, registered at Police Station Superintendent Office Preventive and Intelligence Cell, Chittorgarh, Rajasthan, for offence under Section 8/22 of the NDPS Act.

Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record.

The accused-petitioner is a qualified doctor. The petitioner is possessing the degree of M.D. (Psychiatric). The petitioner joined services at ‘Umeed Manorog Clinic’ with effect from 31.10.2022.

As per prosecution, on receiving a secret information, C.B.N. (Central Bureau of Narcotics) inspected the premises of Umeed Manorog Clinic, Sadulshahar on 17.11.2022, i.e. only after eighteen days of the petitioner’s joining Umeed Manorog Clinic. During the investigation, it was found by the officials of C.B.N. that the psychotropic substance (drugs) manufactured by various companies containing different salts had not been properly billed. The officials of C.B.N. thereupon, prepared an inventory and recorded statements of four persons found at the time of inspection, namely, Pradeep, Shrawan, Pramod and Vishal (the petitioner), under Section 67 of the NDPS Act.

The further case of the prosecution is that at the time of inspection, it was found that the medicines (psychotropic substance) were without bills and the dispensation of the drugs was not proper inasmuch as, the drugs were dispensed to the patients without being examined by the doctors and the entries in connection thereof were made by the staff in the absence of the doctors by preparing rough prescriptions, which were subsequently entered into the dispensation register by the doctor without actually examining the patients. As per prosecution, the petitioner had thus, committed an offence under Sections 8/22, 25 and 29 of the NDPS Act.

Learned Senior Advocate, Shri Vineet Jain vehemently submitted that the petitioner has been falsely implicated in the present case. Learned senior counsel submitted that there is no material on record indicating that the petitioner who joined the services at the aforesaid psychiatric clinic on 31.10.2022 as doctor, had intentionally violated any provision under the NDPS Act or the rules framed thereunder. Learned counsel submitted that the statements under Section 67 of the NDPS Act are not admissible while rendered by Hon’ble the Supreme Court in the case of Tofan Singh vs. State of Tamil Nadu reported in (2021) 4 SCC 1.

Learned counsel submitted that during investigation, the medicines recovered were found to have been supplied under valid bills issued by manufacturers, however, the allegation is that records were not maintained properly. Learned counsel submitted that the petitioner who was working as a doctor cannot be held responsible for maintenance of the stock registers etc., as the maintenance of the stock register, Form- 7, dispensation register etc., was being done by other employees/ co-accused persons namely, Pradeep and Shrawan.

In the alternative, learned senior counsel submitted that even if the case of the prosecution is assumed to be correct and the allegation that the vouchers/prescriptions prepared by employees were entered by the petitioner without verifying the same, then also it is merely a case of dereliction of duty as the petitioner who is registered medical practitioner would be governed by the provisions of Schedule- K of the Drugs and Cosmetics Act.

To buttress the above submissions, learned senior counsel contended that the complaint against the petitioner itself records that during inspection and investigation, dispensation register, Form-7, patient files and OPD registers have been recovered by the investigating agency and it is found that the entries made in the registers were dehors the rules. Learned counsel submitted that Rule 67-A of the NDPS Rules provides in Rule (a)(iii)(b) that narcotic drug and psychotropic substance can be used for de-addiction of drug addicts, however, it mandatorily requires that the records of said acquisition and details of dispensing in Form- 7 be maintained for last two years.

Learned Senior counsel vehemently and fervently submitted that Rule 65-A of the Rules of 1985 specifically provides that no person shall purchase/sell/consume or use any psychotropic substance except in accordance with the Drugs and Cosmetics Rules. Further, this Rule specifically provides that these acts shall be for the purposes mentioned in Chapter VII-A of the NDPS Rules.

When this aspect is juxtaposed with Schedule-K of the Drugs and Cosmetics Act, it becomes evident that if there is any violation of the provisions of Schedule-K which being pari materia, also requires maintenance of record for a period of two years with requisite details, the same will constitute an offence under the Drugs and Cosmetics Act and not under the NDPS Act.

Lastly, learned counsel for the petitioner submitted that the petitioner cannot be held guilty for the offences under NDPS Act and rules in the absence of any mens rea.

On these grounds, learned counsel for the petitioner prayed that the petitioner may be enlarged on bail.

Learned Public Prosecutor vehemently opposed the bail application and submitted that looking to the seriousness of allegations levelled against the petitioner, he does not deserve to be enlarged on bail.

Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record.

A co-ordinate Bench of this Court while adjudicating upon similar facts in the case of Dr. Dharmendra vs. UOI, through C.B.N. Chittorgarh (S.B. Criminal Miscellaneous Bail Application No.3042/2020) was pleased to observe as under:-

“From a perusal of the Form No.7, in reference whereto the violation of the NDPS Act is attributed to the petitioner, it is clear that the details required to be mentioned therein are almost identical to those which are required to be mentioned in the Schedule K of the Drugs and Cosmetics Rules. The respondents have not disputed the fact that the registers maintained under Schedule K of the Drugs and Cosmetic Rules, 1945 at both the institutions were provided to them. There is no allegation regarding any discrepancies in the entries made therein. Therefore, there is merit in the contention of Mr. Jain that even if it is assumed that the petitioner failed to maintain the Form No.7 in the proper proforma, then too he had no mens rea whatsoever for committing any offence punishable under the NDPS Act or the Rules framed thereunder. Any comment by this court as to whether violation in the case at hand would be of Rule 65-A or that of 67-A of the NDPS Rules would be premature and may even prejudice the trial. The fact that all the medicinal preparations administered to the patients at both the institutions were lawfully procured is admitted in the complaint. On a perusal of the Supreme Court judgment in The State of Punjab Vs. Rakesh Kumar (supra) relied upon by the learned Public Prosecutor, it comes out that the accused persons of that case were found in possession of bulk drugs without any valid authorization, whereas in the case at hand, the complaint itself reads that the drugs in question were lawfully acquired for the two medical institutions operated by the petitioner. Thus, the facts of the said case are totally distinguishable. The petitioner is suffering from serious medical ailments and he has been extended the benefit of interim bail by this court. He is a qualified medical professional and is a permanent resident of Haryana and owns significant properties. Thus, there is no likelihood of the petitioner absconding in the event of being released on bail. Furthermore, the respondents too have not expressed any apprehension either in the complaint or in their reply that the petitioner may repeat the offence, if released on bail. Thus, the conditions of Section 37 of the NDPS Act are duly satisfied. Hence, I am inclined to extend the indulgence of bail to the petitioner in this case.”

Having considered rival submissions, facts and circumstances of the case, this Court prima facie finds that the petitioner who joined Umeed Manorog Clinic on 31.10.2022 i.e. only eighteen days prior to the date on which inspection was conducted by the officials of C.B.N. at aforementioned clinic, cannot be held responsible for non-maintenance of the records properly. This Court also prima facie does not find any allegation that psychotropic substances (drugs) were acquired illegally. Prima facie, this Court is of the opinion that even if it is assumed that the petitioner did not discharge his duties properly and made certain entries without properly examining the patients, then too, he had no mens rea for committing any offence under the NDPS Act and Rules. The conditions contained in Section 37 of the NDPS Act are duly satisfied, without expressing any opinion on merits/demerits of the case, this Court is of the opinion that the bail application filed by the petitioner deserves to be accepted.

Consequently, the bail application under Section 439 Cr.P.C. is allowed. It is ordered that the accused-petitioner Vishal Atmaram Sonavane S/o Sh. Atmaram Sitaram Sonavane arrested in connection with F.I.R. No.5/2022, registered at Police Station Superintendent Office Preventive and Intelligence Cell, Chittorgarh, Rajasthan, shall be released on bail, if not wanted in any other case, provided he furnishes a personal bond of Rs.1,00,000/- and two sureties of Rs.50,000/- each, to the satisfaction of learned trial court, for his appearance before that court on each & every date of hearing and whenever called upon to do so till completion of the trial.