Deveng Parikh v. State of Uttarakhand & Ors.

challenged the order of cognizance passed by the Judicial Magistrate, Roorkee asking him to stand trial for the offence under Section 420 IPC. A complaint was filed way back in 2008 by Umesh Sanghi, Vice President of M/s Unicure (India) Pvt. Ltd, Haridwar against Deveng Parikh and two other persons namely Nimesh Shah and Nishith Shah (partner of NISCHMEM International, Mumbai). The genesis of complaint is that complainant (respondent no. 2) is a manufacturer of certain medicines and DYDROGESTERONE tablets under the brand name GESTASURE is one of them. He produces these tablets for human consumption and the same is manufactured by raw material known as DYDROGESTERONE. This chemical was supplied to the complainant by the above named three persons. The complainant placed an order for purchasing 50 Kg. of the 2 said chemical for manufacturing the medicines, as stated above wherefor he made payment of Rs. 15,00,000/- (Rupees Fifteen Lakh Only) by bank cheque. The total cost of this chemical, so supplied to the complainant, was Rs. 26,05,590/- (Rupees Twenty Six Lakh Five Thousand Five Hundred Ninety only). After receiving the chemical, complainant manufactured the tablets and supplied them to Mankind Pharma Ltd. Okhla Industrial Estate, New Delhi on 16.04.2007 and 13.05.2007. Mankind Pharma is the Brand owner of aforesaid tablet. Meanwhile, complainant came to know chemical supplied by the applicant and two others was not exactly the same wherefor price had been paid and the chemical so supplied was spurious in nature and Isomer of DYDROGESTERONE. This fact also came into the notice of concerned Government Department, based at Mumbai, which is meant to put a check upon the quality of medicines, so the complainant also received a notice from the Vigilance Department at Mumbai. Accordingly, in turn, complainant issued direction to Mankind Pharma Ltd. at Delhi, not to advance further sale of such tablets and recall the supply of same from market, which had already been delivered. Thereafter, correspondences started between the supplier of chemical and manufacturer of medicine by way of sundry modes but the same could not yield any result except claims and counter claims asking for payment of remaining amount from each other. Ultimately, Umesh Sanghi filed a complaint in the court of Judicial Magistrate wherein the learned Magistrate took cognizance of the matter and issued summons to the accused persons. Feeling disgruntled, a revision no. 313 of 2009 3 was filed by the applicant in the court of Additional Sessions Judge, which was adjudicated on 02.08.2010 sustaining the order of cognizance passed by the Magistrate. Other two accused persons namely Nimesh Shah and Nishith Shah had filed a petition under Section 482 Cr.P.C. before this Court and the same was dismissed by this Court on merits on 04.09.2009 and this Court refused to invoke its powers under Section 482 Cr.P.C. Accused applicant never put his appearance in the court below and instead of putting his appearance, he went in oblivion from the orders either passed by the trial Judge or revisional court or even by the High Court. When coercive measures were taken by the trial court like issuing Non Bailable Warrant and passing order of attachment under Section 83 Cr.P.C. then he filed this petition. In the Bombay High Court a Summary Suit No. 1966 of 2008 was filed by the applicant Deveng Parikh for recovery of balance amount of raw material from the complainant wherein the Bombay High Court had also expressed it prima facie view that there is substance in the contention of Umesh Sanghi (complainant) that applicant supplied a spurious raw material. Learned counsel for the applicant has drawn attention of this Court towards Section 78 (c) (ii) of the Drugs and Cosmetics Rules, 1945 which reads as under: (cid:147)(ii). The licensee shall either in his own laboratory or in any laboratory approved by the Licensing Authority under Part XV (A) to these Rules test each batch or lot of the raw material used by him for the manufacture of his product and also each batch of the final product 4 and shall maintain records or registers showing the particulars in respect of such tests as specified in Schedule U. The records or registers shall be retained in the case of a substance for which a potency if fixed for a period of two years from the expiry of such date, and in the case of other substances for a period of five years from the date of manufacture.(cid:148) This provision nowhere gives liberty to the supplier of raw material to supply Isomer of a particular substance wherefor he was paid. It is a bounden duty of the supplier of raw material to supply exactly the same chemical wherefor he is paid. He should have taken abundant caution before sending the raw material to the manufacturer of medicine. He cannot shirk away from his responsibility on the strength of the aforesaid provisions. This petition is dismissed in limine for the following reasons: i. The Court had already refused to invoke its power under Section 482 Cr.P.C. in the case of two co-accused persons, who were equally summoned for the same offence. ii. Applicant is playing deception with the Court. He has stated in paragraph 19 of the petition that he could know about pendency of prosecution against him only when concerned police officer at Mumbai rang him up apprising him about issuance of Non Bailable Warrant and initiation of proceedings under Section 83 Cr.P.C. against him. Although learned counsel for the applicant seeks some time to verify these averments from the applicant but granting of time to applicant is of no avail because the Court 5 presupposes that at least applicant Deveng Parikh was well aware about the pendency of criminal litigation against him in the court of Roorkee and filing of revision by himself which was dismissed on merits by way of passing an elaborate judgment by the Additional Sessions Judge, Roorkee, so by no stretch of imagination, it can be said that he was unaware about criminal litigation pending against him. However, applicant is granted a fortnight(cid:146)s time to appear in the court below and seek his bail. Inform the court below. (Servesh Kumar Gupta, J.)

02.11.2012 SKS