Kamil Hussain vs State Of Himachal Pradesh

Satyen Vaidya, J

By way of this application, petitioner has approached this Court for grant of pre-arrest bail in Complaint No. 5647 of 2022, titled as State of H.P. through Drug Inspector versus Kamil Hussain, pending before learned Judicial Magistrate First Class, Paonta Sahib, District Sirmour, H.P., under Sections 18-A and 18-C of the Drugs and Cosmetic Act.

Reply has been submitted today in the Court by the Drug Inspector, Paonta Sahib, who is present in person also. It is revealed from the reply that the allegations against the petitioner is of selling allopathic medicines without any license and also of non disclosure, as to the name of the manufacturer. These offences are defined under Sections 18-A and 18-C of the Act and are punishable under Section 27(2)(b) and 28 of the Act, respectively.

The Drug Inspector has already completed the investigation and the complaint is already pending adjudication before the learned Judicial Magistrate First Class, Paonta Sahib. The apprehension of the petitioner regarding arrest by Drug Inspector may not be correct. No further recoveries are required to be effected from the petitioner. It is also not apprehended that in case of grant of bail, he may abscond from the course of justice.

In Siddharth vs. State of Uttar Pradesh and another (2022) 1 SCC 676, the Hon’ble Supreme Court has held as under:

“9. We are in agreement with the aforesaid view of the High Courts and would like to give our imprimatur to the said judicial view. It has rightly been observed on consideration of Section 170 of the Cr.P.C. that it does not impose an obligation on the Officer-in-charge to arrest each and every accused at the time of filing of the chargesheet. We have, in fact, come across cases where the accused has cooperated with the investigation throughout and yet on the chargesheet being filed non-bailable warrants have been issued for his production premised on the requirement that there is an obligation to arrest the accused and produce him before the court. We are of the view that if the Investigating Officer does not believe that the accused will abscond or disobey summons he/she is not required to be produced in custody. The word “custody” appearing in Section 170 of the Cr.P.C. does not contemplate either police or judicial custody but it merely connotes the presentation of the accused by the Investigating Officer before the court while filing the chargesheet.

We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it.4 If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.”

In the peculiar facts and circumstances of the case, the application is allowed and the petitioner is ordered to be released on bail in the event of his arrest in complaint Case No. 5647 of 2022, registered under Sections 18-A and 18-C of the Drugs and Cosmetics Act, on his furnishing personal bond in the sum of Rs.20,000/- with one surety in the like amount to the satisfaction of learned Judicial Magistrate First Class, Paonta Sahib, District Sirmour, H.P. This order, however, is subject to following conditions: -

i) he shall make himself available for the purpose of investigation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

(ii) he shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

(iii) he shall not make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and

(iv) he shall not leave India without prior permission of the Court.

Any observation made hereinabove shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made hereinabove. Petition stands disposed of.