Criminal Application No. 199 of 2006 · Uttarakhand High Court · 2010

Mr. Sandeep Tandon, Adv. for the applicants Sri Amit Bhatt, Addl. GA for the State/respondent HON. DHARAM VEER, J. These two petitions have arisen out of a common summoning order and the dispute to be decided in both of them is also same, hence both the petitions are being decided by this common judgment and order. Both these criminal applications, preferred u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), are directed for quashing the summoning order dated 27.01.2005 and to quash the entire proceedings of Criminal Complaint Case No.209 of 2005, State Vs. Deepak Gupta & others, pending in the court of CJM, Nainital. Heard learned counsel for the parties and perused the material on record. In brief, the facts of the case are that the petitioners are the Directors of the Firm, namely, M/s Seemax Pharmaceuticals Ltd., Jarauda, Muzaffarnagar. A complaint was filed by the respondent before the court below stating therein that on 14.5.2002, he inspected the 2 CMSD Store Haldwani of CMO Nainital in presence of witnesses, namely, S.C. Sharma, D.D. Upreti and others as well as Sri D.S. Pathani, Chief Pharmacist of CMSD Stores Haldwani, District Nainital. During the course of inspection from the drugs stocked for distribution, which were manufactured by M/s Seemax Pharmaceuticals Pvt. Ltd., it was found that these drugs were misbranded, as they were not labelled as per Rule 96 and 97 of the Drugs & Cosmetics Rules, 1945 [hereinafter to be referred as the Rules]. Further Maximum Retail Price (MRP) was also not printed on the labels of the impugned drugs, the prices charged were higher than that fixed by the Government of India under the Drugs Price Control Order, 1995 which is in violation to Para 19 of the said order. Hence, the said Firm has contravened Section 18(a)(i) and 18(a)(vi) of the said Act, which is punishable under Section 27 of the said Act by selling drugs, which are of misbranded quality and, therefore, has committed offence for the breach of the Act. Thereafter, the matter was referred to Drug Licensing & Controlling Authority, Uttaranchal who after consideration of all the facts and findings of the case, directed the respondent to launch prosecution against the accused Firm its Directors for the offences u/s 18(a)(i) and 18(a)(vi)/27 of the Act and also for the violation of provisions of the Drugs (Prices Control) Order, 1995. It was also stated that the petitioners have supplied the said Misbranded Drugs to the Government Hospitals Store on Fake Government Gazette Notification and at much higher rate than the prescribed Drugs (Prices Control) Order and market rate. Further, the said Firm has not got their sales prices approved by the National Pharmaceuticals Price Authority nor did the Firm submitted the approved required Form V Price list before the Hospital Authorities nor did they submit the same to the Drugs Control Department, which is violation of provisions of Paras 14 3 and 15 of Drugs (Prices Control) Order, 1995. Further, the said Firm has a history of supplying Drugs to the Government Hospitals at various Uttarakhand Districts at high rates than usual in violation of provisions of Para 19 of Drugs (Prices Control) Order, 1995. Further, the petitioners not only supplied the Misbranded Drugs to the Government Hospital Stores which was to be distributed to the common people but also cheated the Government Authorities and committed an offence U/s 420 IPC by evading public money by charging higher price than the price at which the drug was available in the market in retail and the same has not been printed on the label which is mandatory as per the provisions of Drugs (Prices Control) Order, 1995. On the basis of this complaint filed by the Inspector of Drugs, Nainital on behalf of the Government, learned CJM Nainital vide order dated 27.01.2005, took cognizance against the petitioners and summoned them under Sections 18(a)(i), 18(a)(vi) and 27 of the Act and also u/s 14, 15 and 19 of the Drugs (Prices Control) Order, 1995 r/w Section 3/7 of the Essential Commodities Act. Feeling aggrieved, the petitioners have application. Learned counsel appearing for the petitioners argued that no offence is made out against them and the petitioners have been wrongly summoned by the court below. I do not find any force in this argument for the reason that on a perusal of the complaint lodged by the respondent, in which it is stated that (1) the petitioners have supplied the said Misbranded Drugs Government Hospitals Store on Fake Government Gazette Notification and at much higher rate than the prescribed Drugs (Prices Control) Order and market rate and (2) the petitioners(cid:146) Firm has not got their sales prices approved by the National Pharmaceuticals Price Authority nor did the Firm submitted the approved required Form V Price list 4 before the Hospital Authorities nor did they submit the same to the Drugs Control Department, the offences punishable under Sections 18(a)(i)/18(a)(vi)/27 of the Act and also u/s 14, 15 and 19 of Drugs (Prices Control) Order, 1995 r/w Section 3/7 of the Essential Commodities Act are prima facie made out against the petitioners on the basis of the above-said discussion and the trial court has rightly proceeded to summon the petitioners to face trial. Even otherwise, the trial court will decide the case after recording the evidence of the complainant as well as of the accused persons and also on the basis of the appreciation of the evidence as per law. It is well settled that while exercising jurisdiction under section 482 of the Cr.P.C., this Court would not ordinarily embark upon the enquiry as to whether the evidence in question is reliable or not or whether on a reasonable appreciation of accusation would not be sustained. That is the function of the trial court. If the allegations made in the complaint against the petitioners are taken at their face value and accepted in their entirety at this stage, I am of the view that the petitioners have rightly been summoned by the trial court to face trial. The trial court will decide the case after recording the evidence adduced before it. I am of the view that in the present case there is neither any miscarriage of justice nor any abuse of process of court. For the reasons recorded above, there is no force in these applications. The applications C482 are devoid of merits and are hereby dismissed. Interim order dated

10.3.2006 and 05.04.2006 are vacated. Rdang (Dharam Veer, J.) July 21, 2010