Allahabad High Court

1. Heard Sri Pawan Kumar Shukla, learned counsel for the applicants and Sri Vikas Sharma, learned State Law Officer for the State.

2. Though this is an application under Section 528 of the B.N.S.S. has been filed by the applicant to quash the the impugned summoning/cognizance order dated 25.06.2012 (Annexure-1) and entire proceeding of Complaint Case No. 14 of 2012 (State Vs. Imran Khan And Another) Under Sections 17(b), 27(d), 17B(c) 27(c),18(a), (vi), 27(b), (ii), 18A, 28, 26A, 28B Drugs and Cosmetic Act, P.S. Sahibabad, District-Ghaziabad, pending in the court of Additional District & Sessions Judge, Court No. 6, Meerut but learned counsel for the applicants confines his relief for moving recall application.

3. Learned counsel for the applicant has been submitted that a complaint was lodged by the opposite party no.2 being Complaint No.14 of 2022 on

25.6.2012 for the offences under the provisions contained under the Drugs and Cosmetic Act, 1940 thereafter on 25.6.2012 the following was passed:- "25-06-12 आज यह पिरवाद पत्र 3 अ मय सूची गवाह 4 अ. सूची प्रपत्र 5 अ एवं सूची में विणत प्रपत्र सिहत पिरवादी श्री प्रबोध चन्द्र रस्तोगी औषिध िनरीक्षक उ०प्र० गािजयाबाद द्वारा प्रस्तुत िकया गया है एवं प्रा० पत्र 6 व व्यिक्तगत उपिस्थित से अिभमुिक्त प्रदान हेतु प्रस्तुत िकया गया है। आदेश हुआ िक As the complaint has been filed by the complainant in capacity of public servant as Drug Inspector Ghaziabad. Hence in view of the provision of section 200 Cr.P.C. no need to record the statement of complainant. Document filed and witness shown in list, the prima facie ground to proceed the case 2 NA528 No. 36864 of 2025 against the accused Imran Khan son of Mustak Khan & Samir Chaudhary son of Mustak Chaudhary U/S 18(a)(i) read with sec. 17(b), 27(d), 17-B(c), 27(c), 18(a)(vi) 27(b)(ii) 18A, 28, 26-A, 28-B Drugs & Cosmetics Act 1940 & Rule 65(1) & Rule- 105(8) punishable U/s 27(d) of the Drugs & Cosmetics Rules 1945. Fixed for appearance of Accused by 26.07.2012. Step be taken within one week."

4. Learned counsel for the applicant has submitted that on 5.7.2025 the following order was passed :- "Dated: 05.07.2025 Matter was called. None for the State. Accused is absent. From the perusal of the record it appears that, the present proceeding was started on a written complaint dated 25.06.2012 given by Drug Inspector, Ghaziabad. Since the complaint was filed by a public servant acting in discharge of his official duty. The complainant and its witness was not examined and learned Court has taken cognizance on the complaint on 26.06.2012 under Section 17(b), 27(d), 17B(c), 27(c), 18(a) (vi), 27(b), (ii), 18A,28,26A,28B Drugs and Cosmetic Act, 1940 and summons were issued for the accused person. Since then, none is appearing on behalf of the complainant neither any step were taken to ensure the execution of process issued against the accused persons and witnesses. It seems that the complainant is not interested in prosecuting the case. In the circumstances, no fruitful purpose would be served by continuing with the trial but in the interest of justice, one last and final opportunity is given to the complainant to ensure proper prosecution of the case. It is pertinent to point out herein that under Section 26(a)(d) of the Drugs and Cosmetic Act 1940, the Central Government or the State Government may appoint prosecutor or public prosecutor but it seems there is no such appointment by the State. Neither there is any person present on behalf of the complainant department. Office is directed to sent this order sheet to Drug Inspector, Ghaziabad to ensure appropriate step for the prosecution of the case as provided under the Drugs and Cosmetic Act, 1940. Now come up on 02.08.2025.

5. On 2.8.2025 the following order was passed:- "2.8.2025 3 NA528 No. 36864 of 2025 पत्रावली पेश। अिभयुक्तगण गैर हािजर है। अिभयोजन की ओर से कोई उपिस्थत नहीं है। अिभयुक्तगण के िवरुद्ध एन.बी.डब्लू िद० 30.08 के िलए जारी हो।"

6. On 30.8.2025 the following order was passed:- "30.08.2025 पत्रावली प्रस्तुत। अिभयुक्तगण अनुपिस्थत । अिभयोजन पक्ष की ओर से कोई उपिस्थत नही है। अिभयुक्तगण के िवरूद्ध पूवर् आदेशानुसार एन.बी.डब्लू िद० 04.10.25 के िलए जारी हो।"

7. Learned counsel for the applicants has submitted that once it has come on record by virtue of the order dated 5.7.2025 of the court of Additional District & Sessions Judge, Court No.6 that though the applicants were summoned on 25.6.2012 but no steps were taken by the applicants and opportunity to take steps was accorded but on 2.8.2025 non bailable warrants have been issued.

8. Learned counsel for the applicants while relying upon the judgement in Inder Mohan Goswami Vs.State of Uttaranchal reported in 2007 Law Suit (SC)1095 has sought to submit that it was imperative upon the court below to have first recorded a satisfaction regarding service of the bailable warrant and then issued non bailable warrant. However, learned counsel for the applicants submits that liberty be accorded to the applicants to file recall application seeking recall of non-bailable warrants.

9. Learned AGA has no objection to the same.

10. Considering the submissions so made across bar the application stands disposed of directing the applicants to file a recall application for recalling of the non-bailable warrants by 27.10.2025 and on the said motion the court below shall decide the same within a period of one month thereafter.

11. Till the recall application is decided, no coercive action shall be taken against the applicants in Complaint Case No. 14 of 2012 (State Vs. Imran Khan And Another) Under Sections 17(b), 27(d), 17B(c) 27(c),18(a), (vi), 27(b), (ii), 18A, 28, 26A, 28B Drugs and Cosmetic Act, P.S. Sahibabad, District-Ghaziabad, pending in the court of Additional District & Sessions 4 NA528 No. 36864 of 2025 Judge, Court No. 6, Meerut.

12. The protection so accorded to the applicant shall only be confined in those contingencies wherein the applicants sticks to the time line and does not violate any of the conditions of the order. September 23, 2025 piyush (Vikas Budhwar,J.)

1. Heard Sri Pawan Kumar Shukla, learned counsel for the applicants and Sri Vikas Sharma, learned State Law Officer for the State.

2. Though this is an application under Section 528 of the B.N.S.S. has been filed by the applicant to quash the the impugned summoning/cognizance order dated 25.06.2012 (Annexure-1) and entire proceeding of Complaint Case No. 14 of 2012 (State Vs. Imran Khan And Another) Under Sections 17(b), 27(d), 17B(c) 27(c),18(a), (vi), 27(b), (ii), 18A, 28, 26A, 28B Drugs and Cosmetic Act, P.S. Sahibabad, District-Ghaziabad, pending in the court of Additional District & Sessions Judge, Court No. 6, Meerut but learned counsel for the applicants confines his relief for moving recall application.

3. Learned counsel for the applicant has been submitted that a complaint was lodged by the opposite party no.2 being Complaint No.14 of 2022 on

25.6.2012 for the offences under the provisions contained under the Drugs and Cosmetic Act, 1940 thereafter on 25.6.2012 the following was passed:- "25-06-12 आज यह पिरवाद पत्र 3 अ मय सूची गवाह 4 अ. सूची प्रपत्र 5 अ एवं सूची में विणत प्रपत्र सिहत पिरवादी श्री प्रबोध चन्द्र रस्तोगी औषिध िनरीक्षक उ०प्र० गािजयाबाद द्वारा प्रस्तुत िकया गया है एवं प्रा० पत्र 6 व व्यिक्तगत उपिस्थित से अिभमुिक्त प्रदान हेतु प्रस्तुत िकया गया है। आदेश हुआ िक As the complaint has been filed by the complainant in capacity of public servant as Drug Inspector Ghaziabad. Hence in view of the provision of section 200 Cr.P.C. no need to record the statement of complainant. Document filed and witness shown in list, the prima facie ground to proceed the case 2 NA528 No. 36864 of 2025 against the accused Imran Khan son of Mustak Khan & Samir Chaudhary son of Mustak Chaudhary U/S 18(a)(i) read with sec. 17(b), 27(d), 17-B(c), 27(c), 18(a)(vi) 27(b)(ii) 18A, 28, 26-A, 28-B Drugs & Cosmetics Act 1940 & Rule 65(1) & Rule- 105(8) punishable U/s 27(d) of the Drugs & Cosmetics Rules 1945. Fixed for appearance of Accused by 26.07.2012. Step be taken within one week."

4. Learned counsel for the applicant has submitted that on 5.7.2025 the following order was passed :- "Dated: 05.07.2025 Matter was called. None for the State. Accused is absent. From the perusal of the record it appears that, the present proceeding was started on a written complaint dated 25.06.2012 given by Drug Inspector, Ghaziabad. Since the complaint was filed by a public servant acting in discharge of his official duty. The complainant and its witness was not examined and learned Court has taken cognizance on the complaint on 26.06.2012 under Section 17(b), 27(d), 17B(c), 27(c), 18(a) (vi), 27(b), (ii), 18A,28,26A,28B Drugs and Cosmetic Act, 1940 and summons were issued for the accused person. Since then, none is appearing on behalf of the complainant neither any step were taken to ensure the execution of process issued against the accused persons and witnesses. It seems that the complainant is not interested in prosecuting the case. In the circumstances, no fruitful purpose would be served by continuing with the trial but in the interest of justice, one last and final opportunity is given to the complainant to ensure proper prosecution of the case. It is pertinent to point out herein that under Section 26(a)(d) of the Drugs and Cosmetic Act 1940, the Central Government or the State Government may appoint prosecutor or public prosecutor but it seems there is no such appointment by the State. Neither there is any person present on behalf of the complainant department. Office is directed to sent this order sheet to Drug Inspector, Ghaziabad to ensure appropriate step for the prosecution of the case as provided under the Drugs and Cosmetic Act, 1940. Now come up on 02.08.2025.

5. On 2.8.2025 the following order was passed:- "2.8.2025 3 NA528 No. 36864 of 2025 पत्रावली पेश। अिभयुक्तगण गैर हािजर है। अिभयोजन की ओर से कोई उपिस्थत नहीं है। अिभयुक्तगण के िवरुद्ध एन.बी.डब्लू िद० 30.08 के िलए जारी हो।"

6. On 30.8.2025 the following order was passed:- "30.08.2025 पत्रावली प्रस्तुत। अिभयुक्तगण अनुपिस्थत । अिभयोजन पक्ष की ओर से कोई उपिस्थत नही है। अिभयुक्तगण के िवरूद्ध पूवर् आदेशानुसार एन.बी.डब्लू िद० 04.10.25 के िलए जारी हो।"

7. Learned counsel for the applicants has submitted that once it has come on record by virtue of the order dated 5.7.2025 of the court of Additional District & Sessions Judge, Court No.6 that though the applicants were summoned on 25.6.2012 but no steps were taken by the applicants and opportunity to take steps was accorded but on 2.8.2025 non bailable warrants have been issued.

8. Learned counsel for the applicants while relying upon the judgement in Inder Mohan Goswami Vs.State of Uttaranchal reported in 2007 Law Suit (SC)1095 has sought to submit that it was imperative upon the court below to have first recorded a satisfaction regarding service of the bailable warrant and then issued non bailable warrant. However, learned counsel for the applicants submits that liberty be accorded to the applicants to file recall application seeking recall of non-bailable warrants.

9. Learned AGA has no objection to the same.

10. Considering the submissions so made across bar the application stands disposed of directing the applicants to file a recall application for recalling of the non-bailable warrants by 27.10.2025 and on the said motion the court below shall decide the same within a period of one month thereafter.

11. Till the recall application is decided, no coercive action shall be taken against the applicants in Complaint Case No. 14 of 2012 (State Vs. Imran Khan And Another) Under Sections 17(b), 27(d), 17B(c) 27(c),18(a), (vi), 27(b), (ii), 18A, 28, 26A, 28B Drugs and Cosmetic Act, P.S. Sahibabad, District-Ghaziabad, pending in the court of Additional District & Sessions 4 NA528 No. 36864 of 2025 Judge, Court No. 6, Meerut.

12. The protection so accorded to the applicant shall only be confined in those contingencies wherein the applicants sticks to the time line and does not violate any of the conditions of the order. September 23, 2025 piyush (Vikas Budhwar,J.)