Bail in black marketing or over Price of Remdesivir and Favipiravir.

 

 

Bail denied in black marketing of Remdesivir and Favipiravir by Bombay High Court.

 

In the Matter of : Pravin Sukhraj Jain Vs The State of Mahrastra in ANT. BAIL APPLICATION (ST) NO.2109 OF 2020 held that:-

This will ensure early access of Remdesivir for treatment of severe COVID patients in the country under the Restricted Emergency Use. Favipiravir Tablet has been approved for manufacture and marketing on 19.6.2020.

Both Remdesivir and Favipiravir formulations are required to be sold under the prescription of medical specialists only. Further, Remdesivir formulations are required to be supplied for use only to the hospital institutions to ensure proper use of the drug as recommended. In both the cases, informed consent of the patient or his / her representative in the prescribed form is mandatory before initiating the treatment." 9 Upon reading these two communications along with the provisions of the Drugs (Prices Control) Order, 2013, it may be stated that these orders were issued to ensure proper supply and distribution of Remdesivir for treatment of patients with severe COVID-19 infection and Favipiravir tablets for mild to moderate COVID-19 infection. Obviously, controlling order and the directions issued by the  Drugs Controller General (I), were in spirit of Section 3 of the Essential Commodities Act, 1955. It may be stated that the Drugs Controller General (I) has made it clear that the Central Drugs Standard Control Organization has granted permission to manufacture and market drugs to M/s. CIPLA, M/s. Hetro and M/s. Mylan Laboratory for marketing drugs in the country. These directions were issued to prevent and/or curtail black marketing and over pricing of the drug Remdesivir by certain unscrupulous persons. These directions also ensure, early access of Remdesivir for treatment of severe Covid patients in the country under the restricted emergency use only on prescription by Doctors/Hospital.

 Material on record prima-facie suggests, co- accused, who were found in possession of the drugs, Remdesivir, Actemra, was in contravention or in breach of Drugs (Prices Control) Order, 2013 and further suggest, they were black-marketing and over-pricing these drugs. So far as the present applicant is concerned, it may be stated that soon after his name was disclosed by the co-accused, he was not traceable and his whereabouts were not known. In fact, his establishment/shop was found closed. However, as stated, shop was sealed temporarily for the purpose stated in the notice pasted on his shop. Learned counsel for applicant would urge that applicant has no business to deal in prohibited Remdesivir drug and he had not sold drug to the co-accused, Mr. Das. It appears from his submission that Mr. Das in past was his partner but for years he had no business dealings with him. But learned counsel would also urge that Mr. Das owes applicant a substantial amount, a debt, arising from transaction between applicant's frm and Mr. Das. It may also be stated that since after shop of the applicant is sealed, he is not available for interrogation. Though he was directed to report to the Investigating Officer, he did not report and co-operate in the investigation. He ventured to  send one Mr. Bhanushali to the police station. Therefore, it is a clear case of non-co-operation in the investigation. Though, it is contended that applicant has no connection with Mr. Das, however, Call Detail Records produced by the prosecution for perusal indeed makes it clear that applicant was in constant touch with co-accused Mr. Das. Prima-facie, material on record, suggests applicant's complicity in subject crime.

"26. Control of sales prices of formulations.- No person shall sell any formulation to any consumer at a price exceeding the price specified in the current price list or price indicated on the label of the container or pack thereof, whichever is less."

 Besides, learned Senior Counsel has also brought to my notice and placed on record communication dated 6th July, 2020 issued by the Drug Controller General (I). This letter reads as under:

Ministry of Health & Family Welfare Directorate General of Health Services Central Drugs Standard Control Organization (Enforcement Division) FDA Bhawan, Kotla Road New Delhi-110002 E-mail: dci@nic.in Dated:- 6/7/2020.

To, . All States/UT Drugs Controller, Subject:- Immediate enforcement needed to stop the sale of COVID-19 drug Remdesivir above MRP-reg.

Sir, Considering the emergency and unmet medical need for Covid-19 disease, CDSCO has approved Restricted Emergency Use of Remdesivir injectable formulation for treatment of patients with severe Covid-19 infection subject to various conditions and restrictions.

 Initially, Remdesivir formulation of the innovator was approved on 01.06.2020 for import and marketing the drug in the country. However, the importer is yet to import the drug after taking import licence from CDSCO. Subsequently, CDSCO has granted permission to manufacture and market the drug to M/s. Cipla, M/s. Hetro and M/s. Mylan Laboratory for same indication, conditions and restrictions.

There is no bar to the Police Officer, however, to investigate and prosecute the person where he has committed an offence, as stated under Section 32(3) of the Act, i.e., if he has committed any cognizable offence under any other law. III. Having regard to the scheme of the CrPC and also the mandate of Section 32 of the Act and on a conspectus of powers which are available with the Drugs Inspector under the Act and also his duties, a Police Ofcer cannot register a FIR under Section 154 of the CrPC, in regard to cognizable offences under Chapter IV of the Act and he cannot investigate such offences under the provisions of the CrPC.

IV. Having regard to the provisions of Section 22(1)(d) of the Act, we hold that an arrest can be made by the Drugs Inspector in regard to cognizable offences falling under Chapter IV of the Act without any warrant and otherwise treating it as a cognizable offence. He is, however, bound by the law as laid down in D.K. Basu (supra) and to follow the provisions of CrPC.

V. It would appear that on the understanding that the Police Officer can register a FIR, there are many cases where FIRs have been registered in regard to cognizable offences falling under Chapter IV of the Act. We fnd substance in the stand taken by learned Amicus Curiae and direct that they should be made over to the Drugs Inspectors, if not already made over, and it is for the Drugs Inspector to take action on the same in accordance with the law. We must record that we are resorting to our power under Article 142 of the Constitution of India in this regard. VI. Further, we would be inclined to believe that in a number of cases on the understanding of the law relating to the power of arrest as, in fact, evidenced by the facts of the present case, police officers would have made arrests in regard to offences under Chapter IV of the Act. Therefore, in regard to the power of arrest, we make it clear that our decision that Police Officers do not have power to arrest in respect of cognizable offences under Chapter IV of the Act, will operate with effect from the date of this Judgment. VII. We further direct that the Drugs Inspectors, who carry out the arrest, must not only report the arrests, as provided in Section 58 of the CrPC, but also immediately report the arrests to their superior Officers.

Thus, taking into consideration facts of the case and conduct of the applicant, in my view, prosecution cannot be denied applicant's custody for investigation. In my view, no case is made out for granting pre-arrest bail. It may also be stated that offences under the Essential Commodities Act, 1955 are cognizable. Besides, Section 10(c) presumes 'culpable state of mind'. Thus, in view of the material on record, application is rejected. At this stage, learned counsel for applicant, on instructions makes a statement that, applicant shall surrender to the police on 1st October, 2020 at 11.00 a.m. Statement is accepted.