Anticipatory bail should not be denied solely based on non-surrender when circumstances do not justify custody.

JUDGMENT :

ANANDA SEN, J.

Heard, learned counsel for the petitioners and learned counsel for the State.

2. The present anticipatory bail application under sections 438 and 440 of the Cr.P.C.,1973, has been preferred by the petitioners apprehending their arrest for the offence registered under sections 27(b) and 27(d) of Drugs and Cosmetics Act.

3. The case of the prosecution is that an investigation report of the Central Hospital Naisarai, Ramgarh was submitted to the C.J.M. Hazaribagh. It had been alleged in the said report that the roller bandage manufactured by M/s N Sons Surgical Co. was not found to be of standard quality as per the C.D.L. Kolkata report. The C.J.M. Hazaribagh, on the basis of the allegations, took cognizance against the company and the petitioners under section 27b and 27d of the Drugs and Cosmetics Act.

4. In view of quashing of order by which NBW and process under section 82 & 83 Cr.P.C. was issued in Cr.M.P. No. 2378 of 2023, the petitioners undertook to surrender before the ld. court below. However, the ld. Court failed to interpret the order of this Hon’ble Court and interpreted that petitioners by such undertaking were debarred from seeking the remedy of anticipatory bail. The counsel submitted that the learned court had committed gross illegality by not entertaining the anticipatory bail application of the petitioners.

5. It is also submitted that the petitioner had never directly supplied any materials to the Central Hospital, Naisarai. The petitioners had been selling the same roller bandage across the country and there were never any accusations of supplying substandard products. The petitioners had valid license issued through the Drugs and Cosmetics Rules to supply the bandages. The petitioner’s company supplied their products to the Central Hospital through M/s Krishna Surgical Emporium, who before supplying, got the products tested in a laboratory to ensure the quality. There is no proof to show that the products supplied by the M/s Krishna Emporium to the hospital were the same products that were supplied by the petitioners to the M/s Krishna Surgical Emporium.

6. Learned APP has vehemently opposed the prayer for grant of anticipatory bail and submitted that the order of rejection of anticipatory bail by order dated 07.02.2024. is based on material evidence and the claim of the petitioner is not true. During the investigation, sample roller bandage was collected at Central Hospital and upon inquiry, it was informed that the said drug product was acquired from M/s Krishna Surgical Emporium. Further investigation revealed that M/s Krishna Surgical Emporium acquired the said drug from M/s N Sons Surgical Co. Hence, this proves that substandard drug was being manufactured and supplied by the petitioners. It has also been declared through tests by the Government Analyst of the Central Drugs Laboratory, (CDL) Kolkata that the roller bandage was of substandard quality.

7. The ground for which the anticipatory bail application was rejected is absolutely erroneous and not proper and does not stand any logic.

8. After hearing the parties and perusing the impugned order, I find that the anticipatory bail of the petitioners was dismissed only on the ground that inspite of undertaking given by his counsel in Cr.M.P. No.2378 of 2023 before the Hon’ble High Court that the petitioners will surrender, the petitioners did not surrender and filed the anticipatory bail application.

9. In my opinion solely on that ground the anticipatory bail application of the petitioners could not have been dismissed.

10. From the record, I find that it is an admitted case that earlier the non- bailable warrant of arrest could not be executed thus, processes under Section 82 and 83 of Cr.P.C. have been issued against the petitioners. The same was challenged by the petitioners in Cr.M.P. No.2378 of 2023, which is filed under Section 482 of Cr.P.C. In the aforesaid case, the Co-ordinate Bench of this Court was pleased to set aside and qu