Research › Search › Judgment

Madhya Pradesh High Court · body

2023 DIGILAW 828 (MP)

BHUPENDRA PARMAR v. STATE OF Madhya Pradesh

2023-10-09

SUBODH ABHYANKAR

body2023
ORDER : 1. This petition has been filed by the petitioners under section 482 of the Cr.P.C. for quashing the FIR and the subsequent charge-sheet at Crime No. 356/2021, registered at Police Station Rajendra Nagar, Indore under sections 188 and 420 of the Indian Penal Code, 1860 read with section 3 of Epidemic Diseases Act, 1897 (hereinafter referred to as the ‘1897 Act’) and section 24 of M.P. Rajya Ayurvigyan Adhiniyam, 1987. 2. In brief, the facts of the case are that the FIR in the present case was lodged on 17-4-2021, against one Nilesh Chauhan by the complainant Inspector Amrita Solanki on the ground that she has come to know that certain persons are black marketing the Remdesivir injections by creating a fake need, and pursuant thereto one person is about to come to sell the Remdesivir injection for Rs. 22,000/- at Choithram Square, and when she got to Choithram Square, she apprehended Nilesh Chauhan, who was found in possession of one Remdesiver injection. According to Nilesh Chauhan, he was selling the fake Remdesiver injection by filling them with distilled water. During the course of investigation, one Kavita Chauhan was also arrested, and she, in her memo prepared under section 27 of the Evidence Act, has stated that she is working as a nurse, and had purchased three Remdesiver injections, out of which, she had given one injection to Nilesh Chauhan to sell it to some needy person on higher price, and another injection she had given to Bhupendra and his brother Shubham, the present petitioners, and thereafter, the present petitioners were also arrested and from their possession, one Remdesiver injection was recovered. 3. Counsel for the petitioners has submitted that the injection recovered at the instance of the present petitioners is the injection which they had purchased for the treatment of their parents and the wife of petitioner No. 1, through a medical store, the invoice of which is also placed on record. It is submitted that the same injection has been seized from the petitioners, and they have been falsely implicated in the case. Counsel has also submitted that even assuming the story of the prosecution to be true, no case under sections 188 or 420 of IPC is made out as it is nobody’s case that the petitioners had duped anybody or that they parted with the same for any consideration. Counsel has also submitted that even assuming the story of the prosecution to be true, no case under sections 188 or 420 of IPC is made out as it is nobody’s case that the petitioners had duped anybody or that they parted with the same for any consideration. Counsel has also submitted that there is no disobedience on the part of the petitioners in respect of any order passed by the Collector. Thus, section 188 of IPC is also not attracted and similarly, section 3 of the Epidemic Diseases Act, which is similar to section 188 of IPC, is not made out. So far as section 24 of M.P. Rajya Ayurvigyan Adhiniyam, 1987 is concerned, it provides for penalty for practicing as registered medical practitioner, not applicable to the petitioners. Thus, it is submitted that none of the ingredients of the aforesaid offences are present in the charge-sheet, and the further continuation of the case against the petitioners will only be a misuse of the process of Court. Thus, it is submitted that the FIR be quashed. 4. Counsel for the respondent/State, on the other hand, has opposed the prayer and it is submitted that the documents relied upon by the petitioners filed along with this petition, which do not find place in the charge-sheet, cannot be relied upon. It is also submitted that recovery of one Remdesiver injection from the petitioners is sufficient to dislodge their claim. 5. Heard counsel for the parties and perused the record. 6. Before this Court proceeds to dwell upon the facts of the case, it would be worth to refer to the provisions under which the petitioners have been charged: “1. Section 188 of IPC: “188. 5. Heard counsel for the parties and perused the record. 6. Before this Court proceeds to dwell upon the facts of the case, it would be worth to refer to the provisions under which the petitioners have been charged: “1. Section 188 of IPC: “188. Disobedience to order duly promulgated by public servant - Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction: Shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any persons lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both: If such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Explanation - It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm.” 2. Section 420 of IPC “420. Cheating and dishonestly inducing delivery of property - Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 3. Section 3 of Epidemic Diseases Act, 1897 “3. Penalty: (1) Any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal Code (45 of 1860). (2) Whoever: (i) commits or abets the commission of an act of violence against a healthcare service personnel. Section 3 of Epidemic Diseases Act, 1897 “3. Penalty: (1) Any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal Code (45 of 1860). (2) Whoever: (i) commits or abets the commission of an act of violence against a healthcare service personnel. (ii) abets or cause damage or loss to any property, shall be punished with imprisonment for a term which shall not be less than three months, but which may extend to five years, and with fine, which shall not be less than fifty thousand rupees, but which may extend to two lakh rupees. (3) Whoever, while committing an act of violence against a healthcare service personnel, causes grievous hurt as defined in section 320 of the Indian Penal Code (45 of 1860) to such person, shall be punished with imprisonment for a term which shall not be less than six months, but which may extend to seven years and with fine, which shall not be less than one lakh rupees, but which may extend to five lakh rupees.” 4. Section 24 of M.P. Ayurvigyan Adhiniyam, 1987 “24. Penalty: If any person whose name is not enrolled on the State Medical Register practices as a registered medical practitioner, he shall be punishable with rigorous imprisonment for a term which may extend to three years and with fine which may extend to Five Thousand Rupees: Provided that: (i) the person possessing bachelor in Ayurvedic with Modern Medicine and Surgery Degree and registered with the Madhya Pradesh Board of Ayurvedic and Unani Systems of Medicine and Naturopathy shall not be punishable under this section for prescribing allopathic medicines or practicing surgery if his registration certificate authorizes him to do so. (ii) The medical practitioner entitled to privileges of section 27 of the Indian Medical Council Act, 1956 (No. 102 of 156) shall not be punishable under this section for his non-registration in Madhya Pradesh.” 7. (ii) The medical practitioner entitled to privileges of section 27 of the Indian Medical Council Act, 1956 (No. 102 of 156) shall not be punishable under this section for his non-registration in Madhya Pradesh.” 7. A perusal of the aforesaid penal provisions clearly reveal that in order to convict the petitioners under the aforesaid offences, the prosecution is required to prove the ingredients of the aforesaid provisions and, as narrated above, the facts of the case are that the petitioners have been arraigned on the basis of a memo prepared under section 27 of the Evidence Act, at the instance of co-accused Kavita Chauhan wherein, she has stated that she had given one vial of the Remdesiver injection to the petitioners for selling it at higher price, whereas, the petitioners have also placed on record that the petitioners have purchased the aforesaid injection for the treatment of petitioner No. 1’s wife, from Shanti Medical Store. Copies of her prescriptions have also been placed on record, although, this Court is of the considered opinion that the aforesaid photocopies can be the subject matter of the trial and the petitioners can produce the same evidence in their defence at the appropriate stage, however, this Court on a careful consideration of the charge-sheet itself, finds that the petitioners’ conviction under the aforesaid offences as have been levelled against them, is a remote possibility, for the reason that none of the ingredients of the aforesaid offences are available to the prosecution in the present case against the petitioners as, apparently, there is nothing filed along with the charge-sheet to show that the petitioners have disobeyed any order of any public servant, thus, section 188 of IPC is not attracted. There is also no material available on record to suggest that the petitioners induced any person to part with any property, thus, section 420 of IPC is also not attracted. There is also no material available on record to show that the petitioners have disobeyed any regulation or order made under the 1897 Act, as well as abetted or committed any act of violence against any healthcare service personnel or caused damage to any property. Thus, section 3 of the Act of 1897 would also not be attracted. So far as section 24 of the Ayurvigyan Adhiniyam is concerned, there are no allegations against the petitioners that they have prescribed any medicine to any person. Thus, section 3 of the Act of 1897 would also not be attracted. So far as section 24 of the Ayurvigyan Adhiniyam is concerned, there are no allegations against the petitioners that they have prescribed any medicine to any person. 8. In such facts and circumstances of the case, this Court is of the considered opinion that the petitioners cannot be tried in such offences, merely on the basis of a memo prepared at the instance of the co-accused Kavita Chauhan and on the basis that a Remdisiver injection has been recovered from them, when there is nothing in the chargesheet to suggest that its possession was prohibited in any manner by the State Government. This Court can also take judicial notice of the fact that during Covid-19 period, when so many persons were suffering from the said disease, it was not uncommon for a family member of such patient to be in possession of Remdesiver injection, which was in demand in those days and merely if the person is found to be in possession of an injection, it cannot be reason to prosecute him for an offence. 9. Resultantly, the petition is hereby allowed and the charge-sheet so far as it relates to the petitioners is hereby quashed. The petitioners are discharged from the offences registered at Crime No. 356/2021 at Police Station Rajendra Nagar, Indore under sections 188 and 420 of the Indian Penal Code, 1860 read with section 3 of Epidemic Diseases Act, 1897 and section 24 of M.P. Rajya Ayurvigyan Adhiniyam, 1987. All the subsequent proceedings relating to crime number registered against the petitioners are also quashed. 10. With the aforesaid, the petition stands allowed.