Raisen (M.P) v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.2239 of 2018 ------ Subhash Nair, Manager, QC, M/s Aristo Pharmaceuticals Pvt. Ltd., aged about 49 years, S/o Late K.S. Nair, having his office at survey no. 371, Kunbar falia, Village Dabhel, Nani Daman 396210, Daman (U.T) also having office at Plot no. 208 new industrial area no.2, Mandieep, P.O. & P.S. Mandieep District- Raisen (M.P) Versus The State of Jharkhand … Opposite Party … Petitioner For the Petitioner For the State ------
Legal Reasoning
: Mr. Sidhartha Roy, Advocate Mr. Abhishek Kumar, Advocate Ms. Sandhya Sahay, Advocate : Mr. Bishwambhar Shastri, Addl.P.P. ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the entire criminal proceeding including the order dated 14.10.2014 passed by the Addl. Chief Judicial Magistrate, Ranchi in connection with C-III Case No.202 of 2014 whereby and where under cognizance of offence punishable under Section 27(d) of Drugs and Cosmetics Act, 1940 has been taken inter alia against the petitioner by the learned Addl. Chief Judicial Magistrate, Ranchi. 3. The brief facts of the case is that the Deputy Director (Medicine)-cum- Regional Licensing Authority, South Chhota Nagpur Division, Ranchi-II conducted an inspection and collected the sample of medicine- Megapen capsule manufactured by M/s Aristo Pharmaceuticals Pvt. Ltd. having expiry 1 Cr. M.P. No.2239 of 2018 date November, 2014. The sample of the same was sent to the Jharkhand State Drug Testing Laboratory, as per the report, the same was found of “not of standard quality” in respect of content of Cloxacillin “Not within the prescribed limit” i.e. 45.29% only. The report was communicated to M/s Aristo Pharmaceuticals Pvt. Ltd. M/s Aristo Pharmaceuticals Pvt. Ltd. made a request to get the sample for being sent for testing by Central Drugs Laboratory. The complainant filed the official complaint citing the petitioner as accused No.1 with other two co-accused persons and requested the court to pass appropriate order under Section 25(4) of the Drugs and Cosmetics Act, 1940 to give appropriate direction for the sample to be tested by the Central Drugs Laboratory. The learned Addl. Chief Judicial Magistrate, Ranchi straightaway, without following any order for testing the sample of the medicine by the Central Drugs Laboratory or any other laboratory, took cognizance of the offence punishable under Section 27(d) of the Drugs and Cosmetics Act, 1940. 4. Learned counsel for the petitioner relies upon the judgment of the Hon’ble Supreme Court of India relating to vicarious liability of persons in charge of the conduct of the business of a company as envisaged in section 141 of the Negotiable Instruments Act, 1881 in the case of S.M.S. Pharmaceuticals Ltd vs. Neeta Bhalla & Another reported in AIR 2005 SC 3512, paragraph- 20(a) of which reads as under:- “20.
Decision
In view of the above discussion, our answers to the questions posed in the Reference are as under: (a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied.” 2 Cr. M.P. No.2239 of 2018 and submits that though the same has been passed in connection with the provisions of law relating to Section 141 of the Negotiable Instruments Act, 1881 but as Section 34 of the Drugs and Cosmetics Act, 1940 is in pari materia with Section 141 of the Negotiable Instruments Act, 1881 and the company namely M/s Aristo Pharmaceuticals Pvt. Ltd. has been arrayed as an accused also. So, apparently the petitioner has been made accused in terms of Section 34 of the Drugs and Cosmetics Act, 1940 and submits that in order to make the petitioner an accused; it was necessary to specifically aver in the complaint under Section 34 of the Drugs and Cosmetics Act, 1940 that at the time, the offences were committed by the petitioner of this Criminal Miscellaneous Petition, who was the accused person of the said case, that he was in-charge of and responsible for the conduct of the business of the drugs seized but as there has been absolutely no allegation regarding the same; hence, it is submitted that the continuation of this criminal proceeding against the petitioner will amount to abuse of process of law. 5. Learned counsel for the petitioner next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Laborate Pharmaceuticals India Ltd. & Others vs. State of Tamil Nadu (With Interim Relief and Office Report) reported in 2017 0 Supreme (SC) 827 and submits that in that case as because of the part of the sample was not sent to the manufacturer as required under Section 23 (4) (iii) of the Drugs and Cosmetics Act, 1940, the Hon’ble Supreme Court of India observed that the valuable right of accused for re- analysis vested under the Drugs and Cosmetics Act, 1940 having been violated and having regard to the possible self-life of the drug, the Hon’ble Supreme Court of India was of the view that continuation of the prosecution would be a 3 Cr. M.P. No.2239 of 2018 dead prosecution and quashed the criminal prosecution. It is next submitted that in this case because of not passing any order for sending the sample for analysis by the Central Drugs Laboratory, by the learned ACJM, even after the request made by the manufacturer, thereby, inter alia the petitioner has been deprived of a valuable right of re-analysis vested under the Act. Hence, it is submitted that on this score also, the prosecution, being bad in law, be quashed and set aside. 6. Learned counsel for the petitioner further relies upon the judgment of the Co-ordinate Bench of this Court in the case of Krishna Nand Shastri @ K.N. Shastri and Others vs. The State of Jharkhand, through Inspector of Drugs, Deoghar passed in Cr.M.P. No. 1525 of 2014 dated 03.05.2023 and submits that in that case, the Co-ordinate Bench relied upon the judgment of the Hon’ble Supreme Court of India in the case of Udai Shankar Awasthi vs. State of U.P. & Another reported in (2013) 2 SCC 435, paragraph-40 of which reads as under:- “40. The Magistrate had issued summons without meeting the mandatory requirement of Section 202 CrPC, though the appellants were outside his territorial jurisdiction. The provisions of Section 202 CrPC were amended vide the Amendment Act, 2005, making it mandatory to postpone the issue of process where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned. The same was found necessary in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquire into the case himself, or to direct investigation to be made by a police officer, or by such other person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against the accused before issuing summons in such cases.” And the coordinate bench was of the view that there is no exception to the Section 202 of the Code of Criminal Procedure even in Government complaint and as the petitioner of the Criminal Miscellaneous Petition is 4 Cr. M.P. No.2239 of 2018 residing outside the jurisdiction of the learned Addl. Chief Judicial Magistrate, Ranchi as admittedly, he is residing in the State of Madhya Pradesh, so, the mandatory provisions of Section 202 of the Code of Criminal Procedure required the Addl. Chief Judicial Magistrate, Ranchi to postpone issue of process against the petitioner and either enquired into the case himself or direct an investigation to be made by the police officer or by such other persons as he thinks fit, but having not done so, instead the learned ACJM, having straightaway taking cognizance; the Addl. Chief Judicial Magistrate, Ranchi was also committed a grave illegality. Hence, it is submitted that the prayer, as prayed for in this Criminal Miscellaneous Petition, be allowed. 7. Learned Addl.P.P. appearing for the State on the other hand relies upon the judgment of the Hon’ble Supreme Court of India in the case of Dinesh B. Patel & Others vs. State of Gujarat & Another reported in (2010) 11 SCC 125, paragraph-10 of which reads as under:- “10. Under the peculiar circumstances of this case and realising the seriousness of the allegations, we would not take a technical view based on pleadings in the complaint. Mr Raichura contended that as per the settled law by this Court in complaints under Section 138 of the Negotiable Instruments Act, 1881 against a company and its directors also specific averment about the active role of directors in running the company has to be made, failing which the directors cannot be proceeded against. The same logic should apply even in the present case. We cannot agree. Firstly, the language of Section 34(2) of the Act substantially differs from the language of Section 141 of the Negotiable Instruments Act. Secondly, here we are dealing with an offence which has a direct impact on public health. We, therefore, would choose not to interfere with the order of the High Court. It will be open for the Directors to show to the trial court that they had nothing to do with the manufacturing process and, therefore, they should not be held liable under Section 34(2) of the Act.” (Emphasis supplied) and submits that therein the Hon’ble Supreme Court of India inter alia while dealing with the ratio of the judgments in respect of 141 of the Negotiable Instruments Act, 1881 vis-à-vis Section 34 of the Drugs and Cosmetics Act, 1940 5 Cr. M.P. No.2239 of 2018 inter alia did not agree with the proposition to apply the ratio of 141 of the Negotiable Instruments Act, 1881 to the complaint filed under the penal provisions of the Drugs and Cosmetics Act, 1940 inter alia on the ground that the offences under the Drugs and Cosmetics Act, 1940 have a direct impact on public health. Hence, the contention of the petitioner is that the ratio of the principle of law, relating to Section 141 of the Negotiable Instruments Act, 1881 to the Section 34 of the Drugs and Cosmetics Act, 1940, has no leg to stand. Hence, it is submitted that this Criminal Miscellaneous Petition, being without any merit, be dismissed. 8. Having heard the submissions made at the Bar and after carefully going through the materials available in the record, unlike the case of State (N.C.T. of Delhi) vs. Rajeev Khurana reported in (2010) 11 SCC 469 wherein the Hon’ble Supreme Court of India applied the ratio of section 141 of the Negotiable Instrument Act, 1881, to the prosecution under the penal provisions of the Drugs and Cosmetics Act, 1940, in view of the pari materia provision in section 34 of the Drugs and Cosmetics Act, 1940; and wherein the accused was a Director, in this case, the undisputed fact remains that the accused person is Manager, Quality Control of M/s Aristo Pharmaceuticals Pvt. Ltd. at the relevant time and thus was that directly responsible for the quality control of the drugs produced by the company. Hence, keeping in view the observation made by the Hon’ble Supreme Court of India in the case of Dinesh B. Patel vs. State of Gujarat & Another (supra), this Court is of the considered view that keeping in view the nature of allegation of sub-standard quality of the medicine concerned, the sample of which is taken, certainly the complainant was the Manager of Quality Control, itself is sufficient to indicate that he was In-charge and was responsible and liable to the company for the purpose of quality 6 Cr. M.P. No.2239 of 2018 control of the drugs produced by M/s Aristo Pharmaceuticals Pvt. Ltd. Hence, this limb of argument of the petitioner has no leg to stand but so far as the fact that though a request was made for sending the sample to the Central Drugs Laboratory for its re-analysis but such prayer has not been considered by the learned Addl. Chief Judicial Magistrate, Ranchi but still the learned Addl. Chief Judicial Magistrate, Ranchi having taken the cognizance in view of the judgment of the Hon’ble Supreme Court of India in the case of Laborate Pharmaceuticals India Ltd. & Others vs. State of Tamil Nadu (With Interim Relief and Office Report) (supra); this Court is of the considered view that as the valuable right of the accused for re-analysis vested under the Act has been violated and more than about a decade since the expiry date has already elapsed as well as the expiry date of this drug concerned is over since long, so, continuation of the prosecution will be a dead prosecution. Hence, this coupled with the fact that the learned Addl. Chief Judicial Magistrate, Ranchi failed to apply the mandatory requirements of law under Section 202 of the Code of Criminal Procedure even though admittedly, the petitioner was residing outside the jurisdiction of the learned Addl. Chief Judicial Magistrate, Ranchi being a resident of State of Madhya Pradesh; this Court is of the considered view that continuation of this criminal proceeding against the petitioner will amount to abuse of process of law. Therefore, this is a fit case where the entire criminal proceeding including the order dated 14.10.2014 passed by the Addl. Chief Judicial Magistrate, Ranchi in connection with C-III Case No.202 of 2014, be quashed and set aside qua the petitioner only. 9. Accordingly, the entire criminal proceeding including the order dated 14.10.2014 passed by the Addl. Chief Judicial Magistrate, Ranchi in connection with C-III No.202 of 2014, is quashed and set aside qua the petitioner only. 7 Cr. M.P. No.2239 of 2018 10. In the result, this Criminal Miscellaneous Petition is allowed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 24th of October, 2024 AFR/ Saroj 8 Cr. M.P. No.2239 of 2018