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Himachal Pradesh High Court · body

2021 DIGILAW 271 (HP)

Saurabh Behal v. State of Himachal Pradesh

2021-04-29

JYOTSNA REWAL DUA

body2021
JUDGMENT : JYOTSNA REWAL DUA, J. 1. After being declared as a proclaimed offender on 12.9.2019, the petitioner was arrested on 11.3.2021 in Complaint No. 6-N/7 of 2014 pending before the learned Special Judge-II, District Sirmour at Nahan arising out of FIR No. 220/1011, dated 15.7.2011 lodged under Sections 22(3), 27C, 28A, 36AC of the Drugs and Cosmetics Act, 1990 registered at Police Station, Paonta Sahib, District Sirmour. Prayer in the instant petition is for enlargement on regular bail. 2. The prosecution case is that: (i) One Shri Atul Kumar Gupta had sublet the premises of M/s Himalyan Laboratories, village Surajpur Paonta Sahib, District Sirmour on rent to M/s Soliance Pharma Products through its proprietor Saurabh Behal (Bail Petitioner) for running the business of drugs. (ii) The bail petitioner was involved in manufacturing of spurious, misbranded and sub-standard quality drugs meant for sale to public with manufacturing addresses of M/s Soliance Pharma Products, Village Surajpur, Tehsil Paonta Saghib, M/s M.Sea Pharmaceuticals, Village Surajpur, Tehsil Paonta Sahib and M/s NLP Organics Pvt. Limited, A-590B, RIICO Industrial Area, Bhiwadi, at M/s Himalyan Laboratories, village Surajpur, Tehsil Paonta Sahib. (iii) M/s Lincoln Pharmaceuticals Limited filed a complaint against M/s Soliance Pharma Products in respect of supply of alleged spurious and illegal drugs. During investigation, it was found that the licences on Forms-25A and 28A were not issued to the M/s Soliance Pharma Products. As a result of investigation, it was concluded that the bail petitioner being sole proprietor of M/s Soliance Pharma had unauthorisidely manufactured illegal and spurious drugs and sold the same to M/s Lincoln Pharmaceuticals Limited by using forged licences. (iv) On the above basis, FIR No. 220 of 2011 dated 15.7.2011 was registered under Sections 22(3), 27(c), 28 A and 36AC of the Drugs and Cosmetics Act, 1940 at Police Station, Paonta Sahib. Petitioner was granted bail in this FIR on 13.9.2011 under Section 438 Cr.P.C. by learned Sessions Judge, District Sirmour. (v) Since in terms of the applicable Act, the police had no jurisdiction, therefore, the FIR was sent to the concerned Drugs Inspector for instituting the complaint. Petitioner was granted bail in this FIR on 13.9.2011 under Section 438 Cr.P.C. by learned Sessions Judge, District Sirmour. (v) Since in terms of the applicable Act, the police had no jurisdiction, therefore, the FIR was sent to the concerned Drugs Inspector for instituting the complaint. Accordingly Complaint No. 6-N/7 of 2014 under Sections 18(a)(i) read-with Sections 17, 17-B, 18(a)(vi), 18-B, 18(c) and 22(3) punishable under Section 27(c), 27(d), 28-A, 27(b)(ii) and 22(3) of the Drugs and Cosmetics Act, 1940 was instituted by the Health and Family Welfare Department, District Sirmour before the learned Special Judge-II, District Sirmour at Nahan on 3.1.2014. Three persons were made accused in this complaint i.e. Shri Atul Kumar Gupta (Accused No. 1), the bail petitioner (Accused No. 2) and Shri Anil Behal (father of the bail petitioner) and (Accused No. 3). Petitioner was declared a proclaimed offender vide order dated 12.9.2019 passed in this complaint. He was arrested on 11.3.2021 from Gurgaon (Haryana). Ever since then he is in custody. By means of instant petition preferred under Section 439 of Code of Criminal Procedure, he has prayed for his enlargement on regular bail. 3. Heard learned counsel for the parties and also gone through the status reports as well as documents placed on record by the petitioner. Relevant facts, as they come out from cumulative reading of the documents are that: (i) Admittedly, the petitioner was granted anticipatory bail under Section 438 Cr.P.C. on 13.9.2011 by the learned Sessions Judge, District Sirmour in FIR No. 220/2011. (ii) A complaint arising out of FIR No. 220/2011 was instituted by the Drugs Inspector, Nahan, District Sirmour on 3.1.2014 in the court of learned Special Judge-II, Sirmour at Nahan, which was registered on 20.2.2014 as 6-N/7 of 2014. Following position gives the gist of various orders passed in this complaint from time to time leading to petitioner being declared as proclaimed offender and his subsequent arrest on 11.3.2021: (a) Order dated 25.11.2016 shows that learned trial Court had noticed the fact that correct address of the bail petitioner and his father was not filed. Accordingly, time was granted to the Drugs Inspector for furnishing the correct address of the petitioner. Further orders passed on 22.2.2017, 25.4.2017 and 1.7.2017 are all to the similar effect. (b) On 13.9.2017, bailable warrants were ordered to be issued against the petitioner on filing of his correct address by the Drugs Inspector. Accordingly, time was granted to the Drugs Inspector for furnishing the correct address of the petitioner. Further orders passed on 22.2.2017, 25.4.2017 and 1.7.2017 are all to the similar effect. (b) On 13.9.2017, bailable warrants were ordered to be issued against the petitioner on filing of his correct address by the Drugs Inspector. On similar lines, orders was passed on 13.11.2017, 5.3.2018, 7.5.2018, 9.7.2018 and 6.9.2018. (c) On 3.12.2018 after recording that the bail petitioner was not present, the learned trial Court issued non-bailable warrant against him. (d) Order dated 8.1.2019 states that non-bailable warrant ordered to be issued against the petitioner could not be sent for want of his correct address. Petitioner and his father (Accused No. 3) were called again through non-bailable warrants to be executed through Superintendent of Police, CID, Nahan. The order passed on the next date i.e. 5.3.2019, records that the non-bailable warrants issued through CID were received back unexecuted for want of time. Therefore, fresh non-bailable warrants were ordered to be issued against the petitioner and his father through CID, Bharari. On 10.4.2019, it was noticed that non-bailable warrants issued to the petitioner and his father were received unserved for want of their correct address. Again, petitioner was called through issuance of fresh non-bailable warrant. (e) On 10.5.2019, the learned trial Court observed that non-bailable warrants issued against the petitioner and his father were received back unexecuted with the report that the accused persons had left the house about 8-9 years back. Despite noticing it, the learned trial Court expressed its satisfaction that there were reasons to believe that the petitioner and his father (Accused No. 3) had absconded and concealed themselves. Therefore, proclamation was issued under Section 82 of Code of Criminal Procedure. The copy of the proclamation was ordered to be delivered to the Station House Officer, Police Station, Karol Bagh, New Delhi for further requisite action. On 12.9.2019, the petitioner and his father were declared proclaimed offenders. The order reads as under: “Serving Constable HHC Sunil Kumar No. 166 present who had gone to execute the proclamation against accused No. 2 Saurab Bhell and accused No. 3 Anil Bhell along with HHC Madan Singh No. 163. His statement is separately recorded. On 12.9.2019, the petitioner and his father were declared proclaimed offenders. The order reads as under: “Serving Constable HHC Sunil Kumar No. 166 present who had gone to execute the proclamation against accused No. 2 Saurab Bhell and accused No. 3 Anil Bhell along with HHC Madan Singh No. 163. His statement is separately recorded. As per his statement, he and HHC Madan Singh affixed a copy of proclamation as per directions of this Court and despite of that accused No. 2 and 3 could not be traced. His report is Ext. PX under red circle-A his signature is there. Perusal of the report made by HHC Sunil Kumar Ext.PX, I am satisfied that accused No. 2 Saurab Bhell and accused No. 3 Anil Bhell are evading the service of this Court intentionally and, therefore, they are declared as proclaimed offenders. A copy of this order be sent to S.P. Nahan to enter the name of the accused No. 2 and 3 in the Register of the proclaimed offenders and a copy of this order be also sent to SHO Police Station, Karol Bagh, New Delhi in whose jurisdiction accused persons are residing for taking necessary action. Now this case be listed for consideration on charge against accused No. 1 on 4.11.2019.” The petitioner was finally arrested by the police on 11.3.2021 and produced before the learned trial court on 12.3.2021. It is in this background that the present petition has been preferred for grant of regular bail. 4. Learned Senior counsel for the petitioner contended that the petitioner was enlarged on bail by the learned Sessions Judge, District Sirmour on 13.9.2011. Therefore even assuming for the sake of arguments that the petitioner had absconded or chosen to conceal himself to avoid the execution of the warrant then also the procedure as contemplated under Section 446 of Code of Criminal Procedure was required to be followed first and not under Section 82 Cr.P.C. Learned senior counsel further contended that the order sheets of the complaint case, placed on record by the petitioner, make it amply clear that there was no deliberate move on part of the petitioner to evade service. Rather fault lay with the Drugs Inspector who despite repeated opportunities could not furnish petitioner’s correct address. Petitioner was neither served with the complaint case nor was he aware about the pendency of the same. Rather fault lay with the Drugs Inspector who despite repeated opportunities could not furnish petitioner’s correct address. Petitioner was neither served with the complaint case nor was he aware about the pendency of the same. It had been 8-9 years since the petitioner left the premises described as his address in the complaint instituted by the Drugs Inspector. Therefore, petitioner deserves to be enlarged on bail. 5....... (i) Section 446 of Code of Criminal Procedure describes the procedure to be followed when bond gets forfeited. The Section reads as under: “446. Procedure when bond has been forfeited - (1) Where a bond under this Code is for appearance, or for production of property, before a Court and it is proved to the satisfaction of that Court, or of any Court to which the case has subsequently been transferred, that the bond has been forfeited, or where, in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was taken, or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid. Explanation - A condition in a bond for appearance, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case may be, for production of property, before any Court to which the case may subsequently be transferred. (2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code: Provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as surety shall be liable, by order of the Court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months. (3) The Court may, [after recording its reasons for doing so] remit any portion of the penalty mentioned and enforce payment in part only. (3) The Court may, [after recording its reasons for doing so] remit any portion of the penalty mentioned and enforce payment in part only. (4) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond. (5) Where any person who has furnished security under section 106 or section 117 or section 360 is convicted of an offence the commission of which constitutes a breach of the conditions of his bond, or of a bond executed in lieu of his bond under section 448, a certified copy of the judgment of the Court by which he was convicted of such offence may be used as evidence in proceedings under this section against his surety or sureties, and, if such certified copy is so used, the Court shall presume that such offence was committed by him unless the contrary is proved.” In the instant case, petitioner was granted bail on 13.9.2011. The bail was granted in relation to FIR No. 220/2011, which led to registration to Complaint No. 6-N/7 of 2014 in the court of learned Special Judge-II, District Sirmour. The procedure prescribed under section 446 Cr.P.C. was not followed by the learned trial court. (ii) Proclamation was issued against the petitioner under Section 82 Cr.P.C. It will be apposite to extract relevant portion of the Section hereinafter: “82. Proclamation for person absconding - (1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation. (2) The proclamation shall be published as follows: ....................” A bare perusal of the extracted Section makes it evident that the proclamation can be issued where the person against whom the warrant has been issued has absconded or is concealing himself to avoid the execution of the warrant. In Rohit Kumar vs. State of NCT Delhi and Another, 2008 Cri. L.J. 3561, it has been held that before declaring a person as proclaimed offender the court concerned must be satisfied that the person has absconded or has concealed himself. In Rohit Kumar vs. State of NCT Delhi and Another, 2008 Cri. L.J. 3561, it has been held that before declaring a person as proclaimed offender the court concerned must be satisfied that the person has absconded or has concealed himself. Relevant Para from the judgment is as under: “18. The expression ‘reason to believe’ occurring in Section 82 Cr.P.C. suggests that the Court must be subjectively satisfied that the person has absconded or has concealed himself on the materials before him. The term ‘absconded’ is not to be understood as implying necessarily that a person leaves the place in which he is. Its etymological and its ordinary sense is to hide oneself. Further, under Section 82 Cr.P.C. the Court issuing proclamation must record its satisfaction that accused had absconded or concealed himself.' 18A. The three Clauses (a), (b), and (c) of Sub-section (2) (i) of Section 82 Cr.P.C. are conjuctive and not disjunctive. The factum of valid publication depends on the satisfaction of each of these clauses. Clause (ii) of Sub-Section (2) is optional; it is not an alternative to Clause (1). The latter clause is mandatory.” Further in Devendra Singh Negi alias Debu vs. State of U.P. and Another, 1994 Cri. L.J. 1783, it was held that every person who is not immediately available cannot be characterized as an absconder. The court has to record its satisfaction the accused ‘has absconded or is concealing himself’ so warrant cannot be executed. Para-14 of the judgment reads as under: “14. The words “has absconded or is concealing himself so that such warrant cannot be executed” in Section 82 of the Code are significant. Every person who is not immediately available cannot be characterised as an absconder. The Court has to record its satisfaction that the accused has absconded or is concealing in order to avoid execution of the warrant. The provisions of Section 82 are mandatory and are to be construed strictly. Section 82 requires that the court must, in the first instance, issue a warrant and it must put down its reasons for believing that the accused is absconding or concealing himself. My view expressed above is supported by a Division Bench case of Dip Narain Singh vs. State of Bihar, 1981 Cri. L.J. 1672 (Pat). Section 82 requires that the court must, in the first instance, issue a warrant and it must put down its reasons for believing that the accused is absconding or concealing himself. My view expressed above is supported by a Division Bench case of Dip Narain Singh vs. State of Bihar, 1981 Cri. L.J. 1672 (Pat). Thus, in every case where the warrant is not executed, resort cannot be had to Section 82 and it may be necessary to examine the officer concerned who had gone to execute the warrant and to the measures adopted by him to serve the same.” (iii) In the instant case, subsequent to the registration of the FIR, the premises of petitioner’s proprietary firm i.e. M/s Soliance Pharma Products, Paonta Sahib, District Sirmour were sealed by the police. In the complaint filed by the Drugs Inspector before the learned Special Judge, District Sirmour, the address of the petitioner and his father was reflected as: “210 D.R. Chambers, 12/56, D.B. Gupta Road, Karol Bagh, New Delhi, Proprietor in M/s Soliance Pharma Products, Village Surajpur, Tehsil Paonta Sahib, District Sirmour, H.P.” The address of Karol Bagh, New Delhi given in the complaint was not the correct address of the petitioner and his father. This contention of the petitioner is supported by the reports of process serving agency of the learned trial Court. In terms of these reports, the petitioner and his father had left the premises at Karol Bagh about 8 to 9 years ago. Therefore, there was no point in sending summons/bailable warrants/non bailable warrants to the petitioner repeatedly on an address at which they did not reside. It is not the case of the respondent that the petitioner was aware about pendency of the complaint before the learned Special Judge, District Sirmour. Since the address in the complaint was not correct, therefore, service could not be effected upon him and warrants could not be executed. Learned trial Court has also repeatedly observed in its orders that address of the petitioner and his father supplied by the respondent was not correct. Repeated directions were issued to the respondent to supply correct address of accused No. 2 and 3 i.e. of petitioner and his father. Respondent however failed to do so. Learned trial Court has also repeatedly observed in its orders that address of the petitioner and his father supplied by the respondent was not correct. Repeated directions were issued to the respondent to supply correct address of accused No. 2 and 3 i.e. of petitioner and his father. Respondent however failed to do so. Despite the fact that correct address of the petitioner was not supplied, learned trial court proceeded to issue bailable warrants and thereafter non-bailable warrants against the petitioner and his father. Accused No. 3-father of the petitioner died in March 2019. It is in this manner when the bailable and non-bailable warrants remained unexecuted that the proceedings under Section 82 Cr.P.C. were resorted to and the petitioner was eventually declared a proclaimed offender on 12.9.2019 and subsequently, arrested on that count on 11.3.2021. Submission of learned senior counsel carry force that the petitioner was not aware about the complaint pending before the learned Special Judge and that had the respondent had taken steps for furnishing petitioner’s correct address, then there would have been no occasion for him to remain absent from these proceedings or to avoid execution of warrants issued against him. Learned senior counsel for the petitioner has also placed on record and referred to the some orders passed in a related proceeding arising out of the same acts in question (as are involved in the instant FIR and Complaint), pending before the learned Special Designated court at Ambala (Haryana) and submitted that the petitioner is regularly attending these proceedings. It was also stated that Mr. Atul Gupta (accused No. 1) was also an accused in these proceedings going on at Ambala before the learned Special Designated court, however, he also did not inform the petitioner about pendency of the complaint before learned Special Judge District Sirmour at Nahan. Petitioner would have attended the complaint proceedings at Nahan also, had he known about its pendency. Considering the above facts, it cannot be said that there was any willful, deliberate or intentional effort on part of the petitioner to avoid his presence before the learned Special Judge or to avoid execution of warrants. (iv) In light of the settled legal position coupled with the facts of the case, it is crystal clear that the petitioner was enlarged on bail on 13.9.2011 by the learned Sessions Judge, district Sirmour. (iv) In light of the settled legal position coupled with the facts of the case, it is crystal clear that the petitioner was enlarged on bail on 13.9.2011 by the learned Sessions Judge, district Sirmour. The complaint filed by the Drugs Inspector was registered in the court of learned Special Judge on 20.2.2014. In this complaint, the address of the petitioner and his father was reflected as “210 D.R. Chambers, 12/56, D.B. Gupta Road, Karol Bagh, New Delhi.” It had come to the notice of learned trial Court, as is apparent from the perusal of various orders passed by it, that the petitioner and his father were not residing at the address given in the complaint. It is for this reason that repeated opportunities were granted to the Drugs Inspector for furnishing correct addresses of accused No. 2 (petitioner) and accused No. 3 (petitioner’s father-now expired). However, the correct addresses were not furnished by the Drugs Inspector. In a mechanical manner, the bailable warrants and thereafter non bailable warrants were ordered to be executed against the petitioner and his father on the same address. Since the address given was wrong, therefore, these warrants could not be executed and were always returned back unexecuted for want of correct address. Surprisingly, despite this, the proceeding under Section 82 Cr.P.C. was initiated after recording the satisfaction that the petitioner and his father were deliberately evading the service and execution of warrants. This observation was not justified on the face of the various orders passed by the learned court. It was also lost sight of the fact that the petitioner had been earlier granted bail by the learned Sessions Judge on 13.9.2011 and he had furnished the surety bond in lieu of that. Therefore, in my opinion, the petitioner has made out a case for enlargement on bail. Accordingly, instant petition is allowed. Petitioner is ordered to be released on bail on his furnishing personal bond in the sum of Rs. 75,000/- with one local surety in the like amount to the satisfaction of learned Special Judge-II, Sirmour district at Nahan having jurisdiction over the concerned Police Station, subject to the following conditions: (i) Petitioner is directed to join the investigation of the case as and when called for by the Investigating Officer in accordance with law. 75,000/- with one local surety in the like amount to the satisfaction of learned Special Judge-II, Sirmour district at Nahan having jurisdiction over the concerned Police Station, subject to the following conditions: (i) Petitioner is directed to join the investigation of the case as and when called for by the Investigating Officer in accordance with law. He shall fully cooperate the Investigating Officer and will appear before him in the concerned police station as and when called in accordance with law. (ii) Petitioner shall not tamper with the evidence or hamper the investigation in any manner whatsoever. (iii) Petitioner will not leave India without prior permission of the Court. (iv) Petitioner shall not make any inducement, threat or promise, directly or indirectly, to the investigating officer or any person acquainted with the facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer. (v) Petitioner shall attend the trial on every hearing, unless exempted in accordance with law. (vi) Petitioner shall inform the Station House Officer of the concerned police station about his place of residence during bail and trial. Any change in the same shall also be communicated within two weeks thereafter. Petitioner shall furnish details of his Aadhar Card, Telephone Number, Email, PAN Card, Bank Account Number, if any. 6. In case of violation of any of the terms and conditions of the bail, respondent-State shall be at liberty to move appropriate application for cancellation of the bail. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an opinion on the merits of the matter. Learned trial Court shall decide the matter without being influenced by above observations. 7. With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous applications, if any.