SAURABH BEHAL Vs. STATE OF HIMACHAL PRADESH
LAWS(HPH)-2021-4-60
HIGH COURT OF HIMACHAL PRADESH
Decided on April 29,2021

Saurabh Behal Appellant
VERSUS
STATE OF HIMACHAL PRADESH Respondents

JUDGEMENT

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 :- 2(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. 2(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. 2(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. 2(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. 2(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) readwith 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)(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 :- 3(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. 3(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:- 3(ii)(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. 3(ii)(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. 3(ii)(c) On 3.12.2018 after recording that the bail petitioner was not present, the learned trial Court issued non-bailable warrant against him. 3(ii)(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. 3(ii)(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. 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 & 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 & 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. ;


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