Ashok Kumar Agrawal v. The State of Jharkhand

Heard Mr. Nagmani Tiwari, learned counsel for the petitioner and Mrs. Nehala Sharmin, learned counsel for the State.

2. This petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.

3. The present petition has been filed for quashing of entire criminal proceeding of C-III-114/2014 including order dated 14.03.2014 passed by the learned Additional Chief Judicial Magistrate, Ranchi whereby cognizance has been taken against the petitioner for the offence under sections 27(d) and 28(A) of the Drugs and Cosmetics Act, 1940 pending in the Court of learned Additional Chief Judicial Magistrate, Ranchi.

4. The prosecution report was filed by the Drug Inspector, Ranchi on

14.03.2014 alleging therein that on 29.08.2009 the sample of Absorbent Cotton Wool, IP Batch No. 6, Manufacturing Date June, 2009, Expiry Date May, 2012 was taken from the shop of M/s Agrasen Pharma, in presence of the petitioner. The said sample was collected for its testing and analysis with Form- 2

17. It is further alleged that vide test report dated 05.03.2010 the said sample was declared to be sub-standard by the Government Analyst, Central Drug Laboratory, Kolkata and vide office letter no. 176 dated 13.03.2020 a direction was given to stop the sale. The Drug Inspector, Ranchi after lapse of more than four years of the date of collection of sample, requested the learned court of A.C.J.M., Ranchi to register the case as against the petitioner and to take cognizance of the offence. On the said allegation, the case was registered as C-III-114/2014.

5. Mr. Nagmani Tiwari, learned counsel for the petitioner submits that alleged sample was obtained from the shop of the petitioner on

29.08.2009 and the said sample test report is dated 05.03.2010 by which the Opposite Party No. 2 and the State of Jharkhand came to know about the alleged violation of the provision of the Act. He further submits that the maximum punishment under section 27(d) of the Act is 2 years and maximum punishment under section 28(A) of the Act is upto one year. He submits that in view of section 468 Cr.P.C., it is required to be filed in terms of arrangement made therein. He submits that complaint was filed on 14.03.2014 that is after more than four years from the date of collection of the sample and the learned trial court has taken cognizance under sections 27(d) and 28(A) of the Drugs and Cosmetic Act, 1940 on the same day i.e. 14.03.2014. He further submits that without any explanation of delay, the case has been filed and cognizance has been taken. He further submits that in terms of Section 468 (2) (c) of the Cr.P.C, such complaint could have been filed within a period of three years from the date of cause of action arose. Section 468 Cr.P.C. is a mandatory provision, therefore, the complaint filed was time barred and the order taking cognizance dated 14.03.2014 is bad in law. Learned counsel for the petitioner relied upon judgement rendered by the Hon’ble Supreme Court in the case of Sarah Mathew Vs. Institute of Cardio Vascular Diseases by its Director Dr. 3 K.M. Cherain and others reported in (2014) 2 SCC 62 as well as the order passed by coordinate Bench of this Court in Cr.M.P. No. 104 of 2015, dated

09.08.2017.

6. Mrs. Nehala Sharmin, learned counsel for the State opposes the prayer made by the petitioner and submits that complaint petition clearly reveals the fact that the Drugs which were collected from the shop of the petitioner were not standard drugs. She further submits that test report suggests that the drugs were not standard. She submits that cognizance has rightly been taken by the learned court below under those sections.

7. It is admitted fact that the alleged sample was taken on 29.08.2009 and the sample test report is dated 05.03.2010 and the complaint was filed on

14.03.2014. The learned trial court has taken cognizance under sections 27(d) and 28(A) of the Drugs and Cosmetic Act, 1940 on the same day i.e.

14.03.2014. It appears that more than four years have passed from the date of collection of sample till the date of order taking cognizance or for that matter till the date of filing complaint. There is no explanation of delay in filing the complaint. Maximum punishment under section 27(d) of the Act is two years and maximum punishment under section 28(A) of the Act is upto one year. Period of limitation under section 468 Cr.P.C. is three years and the complaint case has been instituted beyond the period of three years, the prosecution of the petitioner cannot be allowed to continue. The period of limitation is to be computed from the date the alleged occurrence is said to have taken place till the date the complaint is instituted and even in the said circumstances the institution of the case was almost more than four years from the date the Act was complained of. In the Case of Sarah Mathew Vs. Institute of Cardio Vascular Diseases by its Director Dr. K.M. Cherain and others reported in (2014) 2 SCC 62 it was held as under: “In view of the above, we hold that for the purpose of 4 computing the period of limitation under Section 468 CrPC the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance. We further hold that Bharat Kale which is followed in Japani Sahoo lays down the correct law. Krishna Pillai will have to be restricted to its own facts and it is not the authority for deciding the question as to what is the relevant date for the purpose of computing the period of limitation under Section 468 CrPC.” totality of considering

8. Therefore, circumstances enumerated above it can be concluded that the complaint was preferred way beyond the period of limitation prescribed and in such circumstances therefore the learned Additional Chief Judicial Magistrate, Ranchi was precluded from taking cognizance for the Act complaint of.

9. Accordingly, entire criminal proceeding in connection with C-III- 114/2014 including order dated 14.03.2014 passed by the learned Additional Chief Judicial Magistrate, Ranchi whereby cognizance has been taken against the petitioner for the offence under sections 27(d) and 28(A) of the Drugs and Cosmetic Act, 1940, is hereby quashed and set aside.

11. Satyarthi/ This criminal miscellaneous petition is allowed and disposed of. Pending, I.A., if any, stands disposed of. ( Sanjay Kumar Dwivedi, J.)