'Until State Is Held Vicariously Responsible For Menace Of Spurious Drugs, Its Department Will Never Swing Into Action': Jammu & Kashmir High Court

"Until and unless, the State is held vicariously responsible for such actions or omissions, the Government or its department would never swing into action effectively so as to control the menace of sale of contaminated or spurious drugs. A welfare State cannot escape from the responsibility to compensate the irreparable loss so caused to the families of the victims due to lapses of the Department," a Division Bench comprising of Chief Justice Pankaj Mithal and Justice Sindhu Sharma said while upholding the order for payment of ₹3,00,000/- each to the next of kins of ten children who lost their lives due to consumption of a spurious cough syrup in the State in December 2019.

The Bench further expressed displeasure at the fact that the State was not wary enough in the instant case, to come up with a compensation package by itself.

It sternly remarked,

"ordinarily the State of its own always come out with packages and grants of financial help in events of any social carnage or accidental death wherever such incidents gain political mileage. We fail to understand the hick up in paying compensation as directed in the present case. Therefore, it is all the more reason for the State to maintain parity and uniformity to abide by the decision of the Commission holding it vicariously liable to compensate the families of the deceased children."

The Bench rejected the submission made by the Government that an FIR has already been lodged in the matter against and that the manufacturer alone is responsible to compensate the next of kins of the victims.

It held,

"We are not at all impressed by the aforesaid argument inasmuch as the lapse on part of the Drugs and Food Control Department of the State is not denied rather accepted. If the said department had acted vigilantly, the sale of the spurious cough syrup which was the cause of the death could have been avoided. In view of this, the State is rightly held vicariously liable for the omissions of the department in allowing the sale of spurious/contaminated cough syrup so as to compensate the families of the victims."

The Government had also argued that the NHRC ought to not have taken cognizance of the matter or passed the impugned order for payment of compensation as the matter was already sub-judice pursuant to an FIR.

It was argued that Regulation 8(1)(b) of the National Human Rights Commission (Procedure) Regulations, 1994 clearly provides that ordinarily, Complaints with regard to matters which are sub-judice are not entertainable by the Commission.

The Bench however refused to allow this submission inasmuch as there was no pleading to that effect. It observed,

"The above rule is of general nature and does not bar the jurisdiction of the Commission absolutely. It has not been mentioned as to when the social activist had made a complaint to the Commission and whether on the said date any matter was sub-judice. It was not even raised before the Commission. The lodging of the FIR or a complaint against the manufacture of the drug does not make a matter to be sub-judice in the court of law so as to debar the Commission from taking cognizance in the matter. The matter is against the State is not stated to be sub-judice."

Case Title: UT of J&K & Ors. v. NHRC & Ors.

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