Wildlife Protection Act | Cancer Drug Camptothecin Not Forest Produce – Bombay High Court Quashes Cases Against Pharma Company After 16 Yrs
The Bombay High Court has held that Camptothecin - a cancer drug, cannot be considered a "forest produce" under the law as it undergoes extensive chemical processing from the original raw material obtained from Narkya trees. The court observed, "It is well known, there is a difference between physical change and chemical change. Physical change can be brought about easily and at the same...
The Bombay High Court has held that Camptothecin - a cancer drug, cannot be considered a "forest produce" under the law as it undergoes extensive chemical processing from the original raw material obtained from Narkya trees.
The court observed, "It is well known, there is a difference between physical change and chemical change. Physical change can be brought about easily and at the same time, the original material can also be brought back easily, but it is not possible in the case chemical change."
The Bench of Justices AS Gadkari and SC Chandak also held that a pharmaceutical company in possession of Camptothecin, without knowledge or evidence that the original raw material was illegally procured - cannot be prosecuted under wildlife and forest conversation laws.
The court allowed all the writ petitions filed by Fresenisu Kabi Oncology Ltd, formerly known as Dabur Pharma and its manager and quashed all criminal cases against them under the Wildlife Protection Act, Indian Forest Act, Indian Penal Code and Bombay Forest Rules.
“There is no material against the Petitioners showing that before purchasing and till receiving said Camptothecin, they knew that it was derived/extracted from the chips of the stolen Narkya trees…," it said.
Significantly, based on earlier judgements, the court held Camptothecin could not be defined as a forest produce Section 2(4) of the Indian Forest Act and therefore petitioners couldn't be penalized under its sections.
The Forest Department had alleged that the companies were in possession of 22 kg of Camptothecin, a cancer drug derived from the bark of illegally felled Narkya trees, and had seized the stock from the companies' plant in West Bengal in 2005. The stock was purchased for Rs. 44 lakhs.
At the time over 223 people were accused in this illegal tree felling racket in over 12 complaints before the Magistrate.
Narkya is a small tree, found in the Western Ghats of Maharashtra. It is called Nothapodyts nimmoniana (formerly known as Mapia foetida). The process to make Camptothecin is long and different, the court noted.
Relying on earlier Supreme Court and High Court judgments, the bench ruled that the continuation of criminal proceedings against the companies would amount to abuse of the process of law.
The court accepted the companies' stand that they had purchased the Camptothecin in good faith for Rs. 44 lakhs from a supplier, without knowledge that it was derived from illegally procured Narkya trees. It noted:
“That apart, it is highly improbable that Petitioner No.1 company would buy an illegal “Forest Produce” for such a huge price, that too at the risk of its prosecution for serious offences… In the backdrop of the discussion, we are of the considered view that continuation of the impugned cases registered against the Petitioners at the instance of Respondent No.2 would be abuse of the process of law.”
Case Title - Fresenisu Kabi Oncology Ltd. vs The State of Maharashtra
Case Number - 667 OF 2010
Appearances – Advs Subhash Jha, a/w. Venkita Subramaniam
APP Mahalakshmi Ganpathy