NEERU GUPTA Vs. STATE OF J&K AND ANR

JUDGEMENT

(1.) These two petitions filed under Section 561-A Cr.P.C. have been clubbed together and therefore require to be decided and determined by a common order.

(2.) Before adverting to the merits of the petitions it will be profitable to give a brief narration of the facts that have coerced the petitioners to file these petitions. It was somewhere in the month of February, 2013, when a sample of a drug known as Maximizin-625 mg (Amoxicillin Trihyarate and Potassium clavulanate tablets IP) hereinafter referred to as spurious drug, was taken by Drug Inspector, Srinagar, from Provincial Medical Store, Barzula, Kashmir. The sample so taken was lifted randomly to check the quality of supplies being made to the Govt. Institutions by the manufacturers and suppliers. The sample was sent for analysis to the drug testing laboratory at Srinagar. The laboratory found it to be spurious. The content Amoxicillin in the sample was found to be nil and on the basis of this report the Government swung into action and appointed a three member high level committee to enquire into the matter vide an order bearing No. 239 of HME 2013, dated 04.04.2013. The committee was asked to enquire, determine and examine the lapses which led to the supply of spurious drug to the Govt. institutions. On 18.04.2013, the committee submitted a detailed report and indicted the supplier firm M/S Lifeline Pharmaco Surgicals as also the members of the Purchase Committee-II and others. The committee recommended that a proper investigation be conducted into the matter to fasten the criminal liability into the officials/officers, responsible for facilitating the supply of spurious drug to the Government institutions and to identify the people who had made or aided such supply. On the recommendation of the committee a case bearing FIR No. 20/2013, under Sections 307, 420, 120-B of RPC was registered at Police Station, Rajbagh, Srinagar, which was later on referred by the Govt. to Crime Branch, Jammu, as a consequence of which, a case bearing FIR No. 10/2013 was registered by the Crime Branch and the investigation ensued.

(3.) After the conclusion of the investigation of the case it came to the fore that during the year 2012 the Purchase Committee-II of the Health and Medical Education Department, floated tenders vide NIT No. 1 of 2012, dated 02.01.2012 for the purchase of allopathic drugs and I.V. fluids for the year 2012-1 However, this NIT was replaced by NIT No. 4 in terms of Govt. order No. 80-HME of 2012, dated 02.02.2012 for adoption of drug policy for J & K State. The replaced NIT was issued on 08.02.2012 vide GMC/J/PC-II/TN-4/263-71 for supply of 348 drugs/medicines including Maximizin-625 mg tablets. A purchase manual was issued by the department of Health and Medical Education on 02.08.2002 with certain important stipulations including the one regarding the samples and the past performance of the tenderers. Accordingly, the tenders were received and one of the bidders was M/S Lifeline Pharmaco Surgicals, which firm had also got itself enlisted as a supplier firm with GMC, Jammu. This firm quoted rates of 34 products including the one referred to above, which drug was proposed to be supplied in the pack of (10X1X10) strips by M/S Lifeline Pharmaco Surgicals. It is alleged that the said bidder did not fulfil the requisite formalities as specified in the tender notice, but the members of the Purchase Committee-II without the scrutiny of the tender documents and without the approval of the samples, approved the rate of the firm (M/S Lifeline Pharmaco Surgicals) in respect of the supply of one product i.e. Maximizin-625 mg tablets, which in the opinion of the purchase committee, was found to be the lowest bidder as compared to the others, for the same drug. The FIR No. 10/2013 relates to only one drug i.e. Maximizin-625 mg supplied by M/S Lifeline Pharmaco Surgicals and allegedly the Purchase Committee-II, issued rate contract order on 16.06.2012 in favour of M/S Lifeline Pharmaco Surgicals, regarding the supply of Maximizine-625, on the basis of supply orders issued by four health department units and a huge quantity of 2,65,000 tablets of Maximizin-625 mg was supplied by M/S Lifeline Pharmaco Surgicals to SMGS, Jammu, Provincial Medical Store, Barzula, Kashmir, Lalded Hospital, Srinagar and Govt. Hospital, Gandhi Nagar, Jammu, which drug ultimately proved to be spurious.