Page No.# 1/5 GAHC010262562018 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./1199/2018 PRANABIKA MAHANTA AND 2 ORS. W/O SUDIPTA NAYAN GOSWAMI R/O NANDANPUR, JAIL ROAD, P.O. AND P.S. JORHAT DIST. JORHAT, ASSAM 2: DR. MONDEEP GAYAN S/O BUDHESWAR GAYAN R/O MELACHAKAR BILPAR P.O. AND P.S. SIVASAGAR DIST. SIVASAGAR ASSAM. 3: DR. USHA RANI PEGU W/O BHABENDRA PRASAD DOLEY R/O HOUSE NO. 11 LANE- I MILAN NAGAR P.O. MILAN NAGAR (C.R. BUILDING) DIST. DIBRUGARH ASSAM VERSUS THE STATE OF ASSAM AND ANR. REP. BY THE PP, ASSAM 2:THE COMMISSIONER DISTRICT DEVELOPMENT JORHAT Page No.# 2/5 DIST. JORHAT ASSAM PIN - 785001 Advocate for the Petitioner : MR. S BORTHAKUR, MS. P BORAH Advocate for the Respondent : PP, ASSAM, MR. SARFRAZ NAWAZ, AMICUS CURIAE (R-2) :: BEFORE :: HON’BLE MR. JUSTICE PARTHIVJYOTI SAIKIA O R D E R 16.06.2025 Heard Mr. S. Borthakur, the learned counsel appearing for the petitioners. Also heard Mr. K.K. Parasar, the learned Addl. Public Prosecutor, Assam representing Respondent No.1 as well as Mr. S. Nawaz, the learned Amicus Curiae representing Respondent No.2. 2. This is an application under Section 482 of the Criminal Procedure Code praying for quashing the FIR dated 04.09.2018 registered as Jorhat Police Station Case No.2201/2018 under Sections 420/336 of the Indian Penal Code and under Section 17A of the Drugs & Cosmetics Act, 1940. 3. On 4th September, 2018, the District Development Commissioner, Jorhat had lodged an FIR before police alleging that the doctors of Jorhat Medical College & Hospital were prescribing non-generic medicines though the Government of Assam directed those doctors to prescribe generic medicines. Police registered the case as Jorhat P.S. Case No.2201/2018. 4. I have considered the submissions made by the learned counsel of both sides. Page No.# 3/5 5. Generic and brand-named drugs contain the same active ingredient, meaning thereby that they offer the same therapeutic benefit. However, brand-named drugs are the original medications developed by pharmaceutical companies and are patented, while generic drugs are copies that become available after the patent expires. Generics drugs are generally less expensive due to competitive pricing after the patent expires. Brand-named drugs are patented, giving the developer exclusive rights to manufacture and sell them for a period. Generic drugs become available after the patent expires. Generic drugs may differ in inactive ingredients like fillers, colors, and flavorings etc., but these differences don't affect the medication's efficacy. Generic drugs must be proven to be bioequivalent to the brand-named drugs, meaning thereby that they must have the same bioavailability (absorption and distribution in the body). 6. Generic drugs are cheaper than branded drugs. Probably for the benefit of general public, the Government had directed its doctors to prescribe generic medicines. But the doctors had been prescribing branded drugs. 7. A doctor has the medical expertise. He knows what type of medicine would be better suitable for a patient whom he had examined. If a doctor despite of a specific direction of the Government does not prescribe generic medicines to a patient, that doctor should be given an opportunity to explain as to why he did not prescribe generic medicines. 8. Section 17A of the Drugs and Cosmetic Act, 1940 reads as under: “Adulterated drugs.— For the purposes of this Chapter, a drug shall be deemed to be adulterated,— (a)if it consists in whole or in part, of any filthy, putrid or decomposed substance; or (b)if it has been prepared, packed or stored under insanitary conditions whereby it may have been contaminated with filth or whereby it may have been rendered injurious to health; or Page No.# 4/5 (c)if its container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health; or (d)if it bears or contains, for purposes of colouring only, a colour other than one which is prescribed; or (e)if it contains any harmful or toxic substance which may render it injurious to health; or (f)if any substance has been mixed therewith so as to reduce its quality or strength.” 9. Failure to comply with a Government directive by its employees, per se, is not an offence under the law. The Government may take Departmental actions against that doctor. But no criminal case prima facie exists under the aforesaid circumstances. Section 17A of the Drugs and Cosmetic Act is not at all applicable in the present case. 10. The guidelines for consideration of a petition under Section 482 of the CrPC has been laid down by the Hon’ble Supreme Court in State of Haryana v. Bhajan Lal, AIR 1992 SC 604. Paragraph 102 of the judgment reads as under: “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any Page No.# 5/5 offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 11. Reverting to the case in hand, this Court is of the opinion that under the given circumstances, there is no possibility of conviction of any person. So, allowing the criminal proceeding to continue before the trial court would be nothing but an abuse of the process of the court. The ratio laid down in Bhajan Lal (supra) is squarely applicable in this case. 12. This Court is the opinion that this is a fit case for exercising power under Section 482 of the CrPC. The criminal petition is allowed. 13. Accordingly, the FIR dated 04.09.2018 registered as Jorhat Police Station Case No.2201/2018 under Sections 420/336 of the Indian Penal Code and under Section 17A of the Drugs & Cosmetics Act, 1940, is quashed and set aside. The criminal petition is disposed of. JUDGE Comparing Assistant