Chandigarh : The Punjab & Haryana High Court has refused to grant anticipatory bail to two persons who are alleged to have been involved in manufacturing, sale and distributing hand sanitizer, which was found to be not of standard quality by a Government Analyst.

The bench of Justice Sandeep Moudgil said it is clear that the product was launched without proper testing only to earn huge profits during the time of crisis when people were scared due to the onset of Covid-19 pandemic.

“The petitioners had thus played with the lives of the people for their personal gains. Due to the seriousness of the matter, the punishment provided under various provisions of the Drug and Cosmetic Act is also very high,” said the court, adding that simply because the petitioners have been summoned in a complaint case is no ground to grant them benefit of anticipatory bail.

In June 2020, a team constituted by the Drug Inspector on the directions of Deputy Drugs Controller had done the sampling of sanitizer in Kharar and Zirakpur areas of Mohali. Samples of sanitizer which were taken from M/s Gupta Medical Hall, Phase-1 Mohali and manufactured by M/s Dr. Edwin Lab were not found to be of standard quality as per report of Government analysts.

The petitioners who are partners in the sanitizer company were booked under Sections 32, 16, 17-A(f), 17- B(d), 18(a)(i), 18(a)(vi) & 18(c) of Drugs and Cosmetics Act, 1940 read with Sections 27(b)(1), 27(c), 27(d), 36-AC of the said Act.

Apprehending the arrest, the anticipatory bail plea was filed by them and it was contended that they had no personal knowledge in respect of alleged seizure of sample of “pure handrub/sanitizer” as no search or seizure of alleged samples were made from the premises of the petitioners.

None of the petitioners were present at the spot and as such they have no direct or indirect connection with the alleged seizure of samplers of drugs etc, they submitted.

Justice Moudgil noted that the petitioners were partners of the firm that manufactured the hand sanitizers and it was launched during the Covid-19 pandemic which upon inspection was found to be “not only of sub-standard quality but also contained 77.43% v/v Methanol, which is poisonous.”

“The firm has admitted that no proper testing of raw material and finished product was undertaken. By any stretch of imagination, it is expected from the petitioners and its company to verify and test the contents of the hand sanitizer and ensure that the same is utilizable by the masses which are already facing the anathema of pandemic,” the bench added.

Referring to Section 34(1) and (2) of the Drugs act, the Court explained, “what can be made out is that in Sub- section (1) of Section 34 of the Drugs Act, every person who is shown to be in charge of, and was responsible to the company for the conduct of its business is deemed to be guilty.”

The use of the words ‘every person’ means it is irrespective of what is the position held by the said person whether be it as a Director, Manager, Secretary or any other officer of the company, said the court.

“If it is prima facie shown by the prosecution that such person was in charge of, and was responsible to the company for the conduct of its business by applying the principles of vicarious liability, he is deemed to be guilty of the offence and liable to be proceeded against.”

Justice Moudgil further elucidated that, “Hence the basic material and averment required so far as Sub-section (1) of Section 34 of the Act is concerned is to prima facie show that the particular person/accused is in charge of, and was responsible to the company for the conduct of its business. Through this clause though almost every person connected with the company may be arrayed as accused and be prosecuted, be it the Director, Manager, etc.”

The Court rejected the argument of petitioners that the trial court is absolutely silent as to on which basis, the provisions of Section 18(a)(i) of the Drugs are made out against the petitioners. “The trial court, at the very first instance, is not expected to carry out any investigation at its own level since such an issue is required to be ascertained during trial.The trial court is only required to see if prima facie offence, as alleged, is made out against the petitioners or not,” said the court.

Considering the allegations, the bench rejected the anticipatory bail plea stating that, “Court, prima facie, is of the considered view that the averments made in the complaint regarding the role and responsibilities of the petitioners are specific and precise, and in these circumstances, the trial court was justified in taking cognizance of the offence alleged against petitioners and rejecting the prayer for anticipatory bail of the petitioners.”

Reference:  Sunita Dhawan & Anr. Vs UOI, Punjab & Haryana High Court, CRM-M-15224-2023, D/o 11.7.2023